New CAL/OSHA Emergency COVID Regulations

Sandra Dickerson, CEO, Your People Professionals

Yesterday afternoon the Department of Industrial Relations issued an announcement of the adoption of cal/ OSHA’s emergency COVID regulations.

The temporary standards apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. Under the new regulations, employers must have a written COVID-19 Prevention Plan that addresses the following:

• System for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.

• Identification and evaluation of hazards – screening employees for symptoms, identifying workplace conditions and practices that could result in potential exposure.

• Investigating and responding to cases in the workplace – responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one business day about potential exposures, and offering testing to workers who may have been exposed.

• Correcting COVID-19 hazards – including correcting unsafe conditions and work practices as well as providing effective training and instruction.

• Physical distancing – implementing procedures to ensure workers stay at least six feet apart from other people if possible.

• Face coverings – providing face coverings and ensuring they are worn.

• Adopting site-specific strategies such as changes to the workplace and work schedules and providing personal protective equipment to reduce exposure to the virus.

• Positive COVID-19 case and illness recording requirements and making the COVID-19 Prevention Plan accessible to employees and employee representatives.

• Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.

• Criteria for employees to return to work after recovering from COVID-19.

• Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).

• Specific requirements for infection prevention in employer-provided housing and transportation to and from work.

In addition, it includes a very controversial requirement to continue pay and benefits. It is expected there will be litigation over this, since it is not believed cal/OSHA has the authority to direct either of those.

It is important to review the release here: https://www.dir.ca.gov/ DIRNews/2020/2020-99.html. It contains links to FAQ’s, and most importantly, a model prevention program. Clients should initiate work right away to complete the program. Much of the information needed should have already been developed for your Reopening Plan, so copy that into the new WCPP plan. We have attached the model program for you.

You will note the FAQ’s are completely silent about the pay and benefits requirement, so copied in below is the relevant section from the regulation. What is unclear so far is how this will be integrated with workers’ compensation temporary disability benefits. We will be watching for any guidance on that from carriers and others, since positive cases are already required to be reported to the carriers. Note, however, that would only apply to work related exposures, so FFCRA paid sick leave would be applied to employees with non work-related exposures and, if that has already been used or is not sufficient, this regulation indicates an obligation to continue pay and benefits for those employees.

(10) Exclusion of COVID-19 cases. The purpose of this subsection is to limit transmission of COVID-19 in the workplace.

Employers shall ensure that COVID-19 cases are excluded from the workplace until the return to work requirements of subsection (c)(11) are met.

(B) Employers shall exclude employees with COVID-19 exposure from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case.

(C) For employees excluded from work under subsection (c)(10) and otherwise able and available to work, employers shall continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee's right to their former job status, as if the employee had not been removed from their job. Employers may use employer-provided employee sick leave benefits for this purpose and consider benefit payments from public sources in determining how to maintain earnings, rights and benefits, where permitted by law and when not covered by workers’ compensation.

EXCEPTION 1: Subsection (c)(10)(C) does not apply to any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission.

EXCEPTION 2: Subsection (c)(10) (C) does not apply where the employer demonstrates that the COVID-19 exposure is not work related.

(D) Subsection (c)(10) does not limit any other applicable law, employer policy, or collective bargaining agreement that provides for greater protections. (E) At the time of exclusion, the employer shall provide the employee the information on benefits described in subsections (c)(5)(B) and (c)(10)(C).

EXCEPTION to subsection (c)(10): Employees who have not been excluded or isolated by the local health department need not be excluded by the employer, if they are temporarily reassigned to work where they do not have contact with other persons until the return to work requirements of subsection (c)(11) are met.

I have refrained from editorial comments in all of the Updates prepared this year, but I will divert from that this time to note that I realize how frustrating it is for cal/OSHA to just now issue this “emergency” regulation. Cal/OSHA has been significantly silent during most of this year, other than to provide some initial guidance for COVID. So to issue this with virtually no notice to employers, require businesses to stop and develop a whole new program is really unconscionable, and retain what they know are sections that are controversial and likely to be challenged is very disturbing, particularly since so much of this has already been directed by the state Health Department and/or county reopening plans. However, they have stated they are in the midst of hiring a lot of new staff, with the intent to increase workplace inspections, so it is important to pay attention to this and work on our program.