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Newly Adopted Cal/OSHA Emergency Standards Require Immediate Action by California Employers

On November 19, 2020, the California Occupational Safety and Health Standards Board (Cal/OSHA) unanimously adopted emergency temporary standards to protect workers from workplace hazards related to COVID-19.

When do the emergency standards go into effect?
The newly adopted emergency standards will go into effect on November 30, 2020. Employers should review their COVID-19 prevention plans and ensure that they are in compliance with the emergency standards. Prior to the adoption of these emergency standards, Cal/OSHA had primarily recommended that employers follow its general and industry-specific guidance in order to minimize their employees’ risk of exposure to COVID-19 in the workplace. However, the new emergency standards will be enforceable against most California employers. Non-compliance with these regulations may result in employers having to pay fines in accordance with Cal/OSHA’s penalty structure.

Who does it apply to?
All employees and places of employment, with the following exceptions:

  1. Workplaces where there is only one employee who does not have contact with other persons
  2. Employees working from home
  3. Employees when covered by Cal/OSHA’s Aerosol Transmissible Diseases standard in Section 5199, which include:
    • Employees who work in certain health care facilities, such as:
      • Hospitals
      • Clinics, medical offices, and other outpatient medical facilities
      • Long term health care facilities and hospices
    • Employees who provide certain services, such as:
      • Police services, provided during transport or detention of persons that have, or suspected to have, contracted COVID-19
      • Police services provided in conjunction with health care or public health operations
      • Paramedic and emergency medical services, including those provided by firefighters and other emergency responders
      • Medical transport and medical outreach services
    • Employees that work in any of the following:
      • Correctional facilities and other facilities that house inmates or detainees
      • Homeless shelters
      • Drug treatment programs

What do the new emergency standards require?
Under the new regulations, employers must establish, implement, and maintain an effective written COVID-19 Prevention Plan that protects employees and addresses the following:

  • Accessibility of COVID-19 Prevention Plan – making the COVID-19 Prevention Plan accessible to employees and employee representatives.
  • 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 free 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.
  • Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
    • This includes paying employees that need to quarantine for 14 days.
  • Return to work criteria for COVID-19 cases – employees recovering from COVID-19 may not return to work until:
    • At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
    • COVID-19 symptoms have improved; and
    • At least 10 days have passed since COVID-19 symptoms first appeared
  • Return to work criteria for exposed employees – exposed employees are required to quarantine for 14 days
  • Negative COVID-19 test – employers are restricted from requiring a negative test prior to returning employees to the workplace.
  • Recording requirements – recording positive COVID-19 case and illness recording requirements, such as:
    • Reporting information about COVID-19 cases in the workplace to the local health department when required by law
    • Reporting to Cal-OSHA any COVID-19 related “serious illness or death” of an employee occurring in a place of employment or in connection with any employment
      • Serious injury or illness” here means any positive COVID-19 case occurring in the workplace or in connection with any employment that requires inpatient hospitalization
    • Keeping records of and tracking all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. Medical information must be kept confidential in accordance with applicable law.
  • 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).
    • Employers must provide COVID-19 testing to all employees if there is a “workplace outbreak” (defined as three or more COVID-19 cases in an exposed workplace within a 14-day period)
  • Infection prevention – specific requirements for infection prevention in employer-provided housing and transportation to and from work.

Next Steps for Employers
The information above is not exhaustive of the entire new emergency temporary standards. Employers are strongly encouraged to consult with their attorneys to obtain and review the complete list of new requirements and the description of all covered employees and places of employment. Employers should begin by carefully reviewing any COVID-19 prevention plans they currently have in place.