On November 20, 2020, the Department of Industrial Regulations’ (DIR) Occupational Safety and Health Standards Board unanimously adopted emergency temporary standards (“ETS”) to protect workers from hazards related to COVID-19. These standards became effective Monday, November 30, 2020, and cover virtually every employer in the State of California.
Highlights of the ETS include the following:
Under the ETS, employees who have tested positive for COVID-19 must be excluded from the worksite until they have satisfied the return-to-work criteria. Employers also must continue to provide full compensation and benefits to employees who are “able and available to work” but have been “excluded from work” because they (1) have a positive COVID-19 test, (2) are subject to a related order to isolate, or (3) have been exposed to COVID-19 (defined as being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more in any 24-hour period).
Since the ETS includes no limit on the availability of this paid leave, an employee presumably could receive it multiple times, although repeat cases of COVID-19 have been rare to date. Unlike the FFCRA and CSPSL, an employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay under the ETS, and may offset ETS payments by the amount of other benefit payments received by an employee.
An employer is not required to pay its employees for a COVID-19-related quarantine where the COVID-19 exposure was not work-related or the employee is unable to work for reasons other than the employer’s obligation to protect persons at the workplace from COVID-19 transmission. The employer also need not pay its employees where its employees work remotely, in workplaces where there is only one employee who does not have contact with other people, or where the employees are covered by the Aerosol Transmissible Diseases Regulation (CCR Sec. 5199).
It is unclear whether Cal/OSHA truly has the authority to unilaterally require employers to pay employees for this quarantine time, and these standards may be subject to legal challenges in the coming days. Nevertheless, the ETS are in place at this time and there is no currently-available exemption.
Under the ETS, employers must inform and train employees on the following:
Employees who test positive for COVID-19 or were exposed to COVID-19 must be excluded from the workplace until they satisfy certain return-to-work criteria. OSHA has stated that employers do not have to require a negative COVID-19 test before permitting an employee to return to work.
Rather, employees who test positive and experience symptoms cannot return to work until their symptoms have improved, including going at least 24 hours without having a fever of 100.4 or higher (without fever-reducing medication), and at least 10 days have passed since their symptoms first appeared. Asymptomatic individuals who test positive cannot return to work until a minimum of 10 days have passed since the date of the positive COVID-19 test.
Employers must provide employees with clean and undamaged face coverings that cover the nose and mouth (or reimburse employees for the cost) and ensure that employee wear such face coverings (1) when indoors, (2) when outdoors and less than six feet away from another person, and (3) where required by orders from the CDPH or local health department.
Face shields are not a replacement for face coverings, but may be worn with a face covering for additional protection. Employees may be exempted from wearing a face covering due to a medical condition, mental health condition or disability, but then shall wear an effective non-restrictive alternative “such as a face shield with a drape on the bottom.”
Employers also must ensure that employees physically distance from each other, even when they have face coverings, unless it is impossible to do so. Employers bear the burden of establishing to OSHA that it was impossible to implement social distancing.
Other requirements include establishing engineering controls (such as installing partitions that reduce aerosol transmission), administrative controls (including cleaning and disinfecting procedures), and ensuring that employees use PPE (including but not limited to gloves, eye protection and respiratory protection).
The ETS require employers to prepare, implement and maintain a written COVID-19 Prevention Plan, either as part of an existing IIPP or maintained in a separate policy. Further details on the contents of the plan can be found here. The DIR also has provided a model COVID-19 Prevention Plan available for download via its FAQ page here.
Employers must respond to COVID-19 cases by (1) determining when the COVID-19 case was last in the workplace and which employees were exposed, (2) notifying employees of any potential exposure within one business day, and (3) offering testing to potentially-exposed employees at no cost and during the employee's working hours. Testing must ensure the confidentiality of employee information. The employer also must investigate the exposure, including whether workplace conditions could have contributed to the exposure and how to correct the exposure.
In a COVID-19 “outbreak” (defined as three or more COVID-19 cases in an “exposed workplace” within a 14-day period or where identified as an outbreak by a local health department), the employer must immediately provide testing to all employees in the exposed workplace and exclude positive cases and exposures from work. This testing must be repeated one week later. Additional requirements are imposed in the case of a “major outbreak” (defined as 20 or more COVID-19 cases in an “exposed workplace” within a 30-day period).
The ETS require that employers follow state and local health department requirements, contact the local health department when there are three or more COVID-19 cases in the workplace in a 14-day period, provide information about the COVID-19 cases, report serious occupational illnesses to CAL/OSHA, maintain records, make its CPP available upon request to employees and employees’ authorized representatives, and record and track all COVID-19 cases.
Employers also must communicate with employees on employer policies and procedures, reporting COVID-19 symptoms, exposures and hazards, how to obtain testing for COVID-19, notice of potential exposure, cleaning and disinfection protocols, and how to identify workplace hazards.
Finally, employers must identify, evaluate and correct COVID-19 hazards, including developing and implementing a process for screening employees, reviewing state and local guidance orders on hazard prevention, reviewing existing practices, conducting a site specific evaluations for possible COVID-19 transmissions, conducting periodic workplace inspections and implement procedures to correct hazards.
For questions regarding CAL/OSHA’s Emergency Temporary COVID-19 Prevention Standards or other employment law issues, contact the employment attorneys at LightGabler.