URGENT! California: Emergency Cal/OSHA Standard Requires IMMEDIATE Employer Action
All Employers with CA Employees
November 30, 2020
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On November 30, 2020, a COVID-19 emergency safety regulation went into effect for the next 180 days, which can be extended further. All employers of in-person workers must take immediate action to comply (excluding workplaces with one employee who does not have contact with other individuals, or employees already covered by the aerosol transmission standard).
- Written COVID-19 Prevention Program (WCPP). Employers must implement a WCPP with specific components: system for communicating with employees; identifying and evaluating COVID-19 hazards; identifying and responding to COVID-19 cases in the workplace; correcting COVID-19 hazards; training and instruction; physical distancing and face coverings; other controls and personal protective equipment (PPE); reporting and recordkeeping; exclusion of COVID-19 cases; and return to work rules. The WCPP can either be incorporated into an Injury and Illness Prevention Plan (IIPP) or be issued as a standalone document.
- Exposure Notice Requirements. Employers have specific requirements for reporting COVID-19 cases and providing notice to individuals impacted in the workplace. They largely mirror the requirements of AB 685 that go into effect January 1, 2021, with some differences. All COVID-19 cases in the workplace must be investigated. Businesses must provide notice of potential exposure within one business day to employees who may have been exposed or individuals who were present during the “high risk exposure period.” The notice must also include information on disinfection and safety protocols, testing, and available benefits.
- Safety Requirements. Physical distancing must be observed with limited exceptions; if an exception applies, additional safety measures are required. Employers must try to maximize outside air to the extent possible. Employers must provide employees with face coverings, with limited exceptions, and implement a face covering requirement. Note that face shields are not a replacement for face coverings but may be used with face coverings. An employee not wearing a covering for any reason must be at least six feet apart from all other individuals unless the unmasked person is tested at least twice weekly for COVID-19. Employers must also evaluate the need for PPE and provide as needed.
- Excluded Workers. Employees who qualify as a “COVID-19 case” must be excluded from the workplace for 14 days and until they meet return to work criteria. While employees are excluded, employers must maintain their earnings, seniority, rights and benefits, and former job status, with limited exceptions. Importantly, “[i]f the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments. … These obligations do not apply if an employer establishes the employee’s exposure was not work-related.”
- Testing Requirements. When there is one COVID-19 case in the workplace, the employer must offer free COVID-19 testing during working hours to all employees with potential COVID-19 exposure. Employers must also provide notice to impacted employees of the reason for the testing and the possible consequences of a positive test. When there is an outbreak, an employer must immediately provide free COVID-19 testing during employee working hours, again a week later, and continuously each week thereafter. When there is a “major” outbreak, an employer must provide free COVID-19 testing during employee working hours twice a week and continuously each week thereafter. In each level of outbreak, ongoing testing may cease when there have been no COVID-19 cases in a 14-day period. Employers must also provide notice of outbreaks to the local health department within 48 hours.
- Return to Work. The criteria required to allow a worker to return to work generally follow existing CDC and public health rules, with some exceptions. Notably, employers may not require a negative test result for employees to return to work. There are no specific exceptions to the return-to-work rules for critical infrastructure workers, but employers may request Cal/OSHA to permit their return to work if failure to return creates an “undue risk to a community’s health and safety.”
- Training and Instruction. Employers must provide training to employees on their COVID-19 policies and procedures, available COVID-19 related benefits, manner of spread and methods of prevention of COVID-19, hand washing, information on face coverings, and COVID-19 symptoms and the importance of not coming to work with symptoms.
There are additional requirements for employers who provide employees with transportation or housing, such as physical distancing, screening drivers and riders, maintaining outside ventilation, providing hand sanitizer, and cleaning and disinfecting.
Keep in mind that employers can be cited for failing to comply with the emergency standard. Cal/OSHA will likely move forward with permanent rulemaking on this topic in the near future. In the meantime, Cal/OSHA is developing webinar training on the emergency standard. It has also developed a Model Program to assist employers in developing a COVID-19 Prevention Program.
- Review the emergency standard here and the FAQ here.
- Immediately implement a WCPP and prepare required notices.
- Evaluate and update safety protocols.
- Implement investigation, testing, exclusion, and return to work standards.
- Train employees on policies and procedures.
- Update payroll procedures for exclusion periods.
- Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
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