Cal/OSHA Issues “FAQ” Guidance Regarding Emergency COVID-19 Regulations

12.02.2020

The California Office of Administrative Law (“OAL”) approved the emergency temporary standards (“COVID-19 Regulations”) prepared by Cal/OSHA to prevent the spread of COVID-19 in the workplace.  (See 8 Cal. Code of Regulations (“CCR”) §§ 3205-3205.4)  As part of the roll-out of the new regulations, Cal/OSHA also published the “COVID-19 Emergency Temporary Standards Frequently Asked Questions” (“FAQ”) on its website on December 1, 2020.  The regulations went into effect on November 30, 2020 and expire on October 2, 2021 unless extended.  In this Alert, we summarize some of the key points of the new FAQ Guidance.

The COVID-19 regulations impose numerous obligations on employers with a stated aim of protecting employees from COVID-19.  We addressed the new regulations in two recent Alerts: Imminent New Cal-OSHA COVID-19 Regulations Will Create New Burdens for Employers, Including a Duty to Pay Workers Excluded from the Workplace Due to Concerns over COVID-19 and Cal/OSHA Adopts Expansive and Burdensome Regulations to Mitigate COVID-19 Exposure and Outbreaks in the Workplace.  The new regulations are lengthy and complicated.

The COVID-19 regulations are not without controversy. Notably, in the new regulations, Cal/OSHA requires employers to continue to pay and benefits for employees excluded from the workplace due to COVID-19 infection or exposure.  In so doing, Cal-OSHA has arguably moved beyond its traditional role of addressing safety and health in the workplace and veered into wage-and-hour topics that are typically the province of other administrative agencies. 

The key elements of the new regulations and the FAQ are summarized below.

Which Employers Must Comply With the COVID-19 Regulations?

The COVID-19 regulations apply to all employers, employees and places of employment in California with 3 exceptions: (1) workplaces where there is only one employee who does not have contact with other people, (2) employees who are working at home, and (3) employees who are covered by the Aerosol Transmissible Diseases (“ATD”) regulations.  (Title 8 CCR § 5199)  

Note:  While the COVID-19 regulations do not apply to employees covered by the ATD (i.e. healthcare workers, first responders, skilled nursing facilities, etc.), the COVID-19 regulations cover administrative workers who work only in an office environment separated from patient care facilities.

What If Employees Split Their Work Time Between Home And The Workplace?

The COVID-19 regulations only apply to employees while they are working at the workplace or are exposed at work, but not when working at home.

What if Employees Split Their Work Time Between Home and the Workplace?

Many of the provisions of these regulations have already been required under employers’ Injury and Illness Prevention Programs (IIPP), including the requirement to identify and address hazards, use of face coverings, and physical distancing. As employers implement the new regulations, Cal/OSHA enforcement personnel will consider an employer’s good faith efforts in working towards compliance, but some aspects, such as eliminating hazards and implementing testing requirements during an outbreak, are essential.

What Are the Requirements of the COVID-19 Prevention Plan?

To comply with the COVID-19 regulations, an employer must develop a written COVID-19 Prevention Program or ensure its elements are included in an existing IIPP. The employer must implement the following in accordance with their written plan:

• • Communication to employees about the employer’s COVID-19 prevention procedures.
  • Identify, evaluate and correct COVID-19 hazards.
  • Physical distancing of at least six feet unless it is not possible.
  • Use of face coverings.
  • Use of engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk.
  • Procedures to investigate and respond to COVID-19 cases in the workplace.
  • Provide COVID-19 training to employees.
  • Provide testing to employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas.
  • Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk.
  • Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required.

Cal/OSHA has posted a Model COVID-19 Prevention Plan on its website for employers to use.

What Must the Employer Communicate to the Employees About the COVID-19 Regulations?

• • How to report COVID-19 symptoms, exposures and hazards to the employer without fear of reprisal.
  • Identify COVID-19 hazards in the workplace and the employer’s policies and procedures to address them, including employee participation.
  • Any procedures the employer may have for accommodating employees with elevated risk factors for COVID-19.
  • How the employee can obtain testing for COVID-19 and notice requirements for potential exposure to COVID-19.

What Must an Employer Do to Identify, Evaluate and Correct Workplace Hazards?

• • Develop and implement a process for screening employees for and responding to employees with COVID-19 symptoms.
  • Review state and local guidance and orders on hazard prevention, including industry-specific guidance found on Cal/OSHA’s website or at ca.gov.
  • Review existing practices for controlling COVID-19 and conduct a site-specific evaluation of where COVID-19 transmission could occur which will include periodic inspections and procedures to correct hazards.
  • Allow employees or employees’ authorized representatives to participate in hazard identification and evaluation.

What Are the Physical Distancing Requirements of the COVID-19 Regulations?

An employer must ensure that employees maintain at least six feet of distance from other persons unless it is not possible, in which case employees should be as far from others as possible.

What Are the Face Covering Requirements of the COVID-19 Regulations?

The COVID-19 regulations require employers to provide employees with face coverings (or reimburse employees for the cost) and ensure they are worn as specified in the COVID-19 regulations.

What Engineering Controls, Administrative Controls and Personal Protective Equipment Must an Employer Implement?

Employers must install engineering controls (such as partitions, where possible), develop administrative controls (such as procedures for disinfecting workplaces) and provide personal protective equipment as required.

What Training Must An Employer Provide Employees Under The COVID-19 Regulations?

Employee training must cover the Prevention Plan including how the infection is spread and COVID-19 related benefit information, from either the employer or from federal, state or local government that may be available to employees impacted by COVID-19.

What Must an Employer Do to Investigate and Respond to a COVID-19 Case?

Employers must investigate and respond to a COVID-19 case in the workplace and determine where the infected employee worked, who may have been exposed to the employee, notify employees of potential exposure, determine whether workplace conditions could have contributed to the risk of exposure and make corrections to reduce exposure.

What Are the Testing Requirements in the COVID-19 Regulations?

Employers must inform employees how they can obtain testing, offer testing at no cost during working hours in the event of potential exposure and provide periodic testing depending on the magnitude of the outbreak.  The amount of testing varies based on a single case, an “outbreak” (3 more cases within 14 day period) or a “major outbreak” (20 or more cases in 30 day period) in an “exposed workplace” as defined by the COVID-19 regulations.  Meanwhile, employee confidentiality must be maintained.

What Are the Criteria for a COVID-19 Case to Return to Work?

The COVID-19 regulations contain different criteria for determining when a COVID-19 case may return to work.  These criteria change based on whether the employee tested positive, was only symptomatic or was only exposed to COVID-19 case.  The COVID-19 regulations does not require a negative test to return to work.

Must an Employer Pay an Employee While the Employee Is Excluded From Work?

If 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.

What Reporting and Recordkeeping Requirements Are in the COVID-19 Regulations?

Employers must follow state and local health department reporting requirements. The employer shall continue to give notice to the local health department of any subsequent COVID-19 cases at the workplace as well as comply with existing Cal/OSHA accident reporting and recording requirements.

The COVID-19 Regulations are extensive and complicated.  While Cal/OSHA’s model COVID-19 Prevention Plan provides helpful guidance navigating the COVID-19 Regulations, AALRR has developed a Prevention Plan and can assist clients in preparing their own plan.  We encourage employers to carefully review the COVID-19 Regulations and the FAQ in detail, and develop workplace-specific protocols to ensure compliance.  We also encourage employers to monitor Cal/OSHA’s website for subsequent guidance on these expansive regulations, as public health guidance on the various aspects of the present pandemic is updated frequently and subject to change.  Please reach out to the Authors of this Alert or your regular AALRR counsel with any questions. 

This AALRR presentation is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

©2020 Atkinson, Andelson, Loya, Ruud & Romo