Cal/OSHA Issues Updated FAQs Regarding Emergency COVID-19 Regulations
On January 8, 2021, Cal/OSHA published an updated version of its “COVID-19 Emergency Temporary Standards Frequently Asked Questions” (“FAQs”) on its website. In updating these FAQs, Cal/OSHA has expanded the number of FAQs from 31 to 69 (and added seven (7) new topical subheadings).
In this Alert, we summarize some of the key points of the updated FAQ Guidance.
Required Elements of the Written COVID-19 Prevention Program
The updated FAQs clarify that an employer can comply with the Emergency Temporary Standards (“ETS”) by developing a written COVID-19 Prevention Program or by including the required elements in the employer’s existing Injury and Illness Prevention Program (“IIPP”).
The required elements are as follows:
- 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 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;
- Return to work criteria; and
- Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required
Employer Communication Requirements
The ETS require that employers provide certain information to employees. The updated FAQs clarify that employers must provide the following information to all employees:
- How to report COVID-19 symptoms, exposures and hazards to the employer without fear of reprisal
- COVID-19 hazards in the workplace and the employer’s policies and procedures to address them
- Any procedures the employer may have for accommodating employees with elevated risk factors for COVID-19, which can be found on the CDC’s website (this is an obligation to communicate about existing procedures, not to create new ones, although reassigning employees with elevated COVID-19 risk factors to jobs with less exposure risk is encouraged and may be required under federal and state disability laws)
- How the employee can obtain testing for COVID-19, such as through the employer’s workplace-based testing program, or through the local health department, a health plan, or at a community testing center
- Notice of potential exposure to COVID-19
- Cleaning and disinfection protocols
- How to participate in workplace hazard identification and evaluation
Defining “Fixed Work Locations”
The updated FAQs clarify that a “fixed work location” is a workstation where an employee is assigned to work with minimal movement from that location for extended periods of time (e.g. cashiers, greeters, receptionists, workers at desks or in cubicles, and food production line workers). It does not include construction or maintenance work.
Partitions between “Fixed Work Locations” Do Not Necessarily Prevent “Close Contact” Between Employees
In situations where physical distancing between employees is not possible (for example, when employees work in “fixed work locations”), the ETS require employers to install cleanable solid partitions that reduce the risk of aerosol transmission. According to the updated FAQs, the partitions must be “large enough to reduce the risk of aerosol transmission.”
While employers are required to install these partitions, the updated FAQs also point out that unless the partitions are “complete barriers,” partitions do not eliminate the risk of transmission between workers. Workers within six feet of one another are considered a close contact for determining COVID-19 exposure, regardless of partitions. As a result, they would be subject to the ETS exclusion provisions.
Clarifying “Exclusion Pay” Requirements
The ETS require employers to pay “exclusion pay” to employees who are excluded from work due to work-related COVID-19 exposure where the employee otherwise is “able and available to work.”
According to the updated FAQs, an employee is not eligible to receive exclusion pay if the employee is unable to work because the employee is experiencing COVID-19 symptoms. Employers are also not required to provide exclusion pay where the employee is unable to work for “reasons other than protecting persons at the workplace from possible COVID-19 transmission.” These reasons may include “a business closure, caring for a family member, disability, or vacation.”
One question relating to exclusion pay that is not adequately resolved in the updated FAQs is how employers can rebut the presumption (created under SB1159) that an employee’s COVID-19-related illness is not an occupational injury entitling the employee to workers’ compensation benefits. The updated guidance merely advises employers that rebutting the presumption requires an employer to conduct investigations (comparable to the workers’ compensation requirements) and produce comparable evidence to show it is more likely than not that an employee’s COVID-19 exposure did not occur in the workplace. The updated FAQs do not provide any examples of the type of evidence that would serve to rebut the presumption.
Determining the “Exposed Workplace”
The updated FAQs also provide much-needed clarification regarding what exactly constitutes an “exposed workplace” for purposes of determining if an outbreak has occurred and which employees must be tested.
An outbreak is deemed to have occurred where there are three COVID-19 cases in the workplace, and all three of the COVID-19 positive employees worked in, used, or accessed the same “work location, working area or common area used or accessed” in a 14-day period. If one of the three COVID-19 positive employees was in a different work location within an establishment, an outbreak has not occurred. In addition, areas through which a COVID-19 positive employee passed (i.e., travelled through en route to a work area and did not stop or stopped momentarily while wearing a face covering) are not considered in determining the area of an “exposed workplace.” For example, if all three COVID-19 positive employees were in a common area, but one of the employees merely passed through the common area while wearing a face covering, an outbreak has not occurred for purposes of the ETS.
The updated FAQs also clarify that employers can separate employees into cohorts to reduce the likelihood of COVID-19 cases occurring in the same work locations/areas. In addition, in workplaces where there are several non-overlapping work shifts, each shift would be considered as a separate “exposed workplace” if the facility is well ventilated, and the cleaning and disinfection requirements of the ETS are met between or before shift changes.
Lessening (Somewhat) the Financial Burden of the Employer’s COVID-19 Testing Requirements
Under the ETS, employers are required to offer/provide COVID-19 testing to employees as follows:
- Offer testing to an employee at no cost and during working hours in the event of a potential COVID-19 work-related exposure; and
- Provide periodic (at least weekly or twice per week depending on the magnitude of the outbreak) COVID-19 testing to all employees in an “exposed workplace” during an outbreak.
In addition to clarifying that the terms “provide testing” and “offer testing” have the same meaning, the updated FAQs also lessen the financial burden imposed on employers by the COVID-19 testing requirements. The updated FAQs confirm that sending employees to a free testing site for COVID-19 testing (e.g., a county-run testing site) would satisfy the employer’s obligation to offer/provide COVID-19 testing.
However, the updated FAQs also remind employers that the testing must be provided “at no cost to employees,” which includes not only the cost of testing (if any), but a requirement that employers pay employees:
- Wages for the time spent by the employee to get tested;
- Travel time to and from the testing site; and
- Reimbursing employees for travel costs to the testing site (e.g., mileage or public transportation costs).
No Monetary Penalties for Violations of the ETS until February 2, 2021
Employers are currently required to comply with the ETS, and Cal/OSHA has been enforcing the ETS since they went into effect. However, the new FAQs do provide some relief for employers.
The updated FAQs clarify that for the first two months the rules are in effect (i.e., through February 1, 2021), Cal/OSHA will issue citations but will not assess monetary penalties for violations of the ETS that would not have been considered a violation of the employer’s IIPP, respiratory protection program or other applicable Cal/OSHA standard in place prior to November 30, 2020.
The ETS are extensive and complicated. While Cal/OSHA’s model COVID-19 Prevention Plan provides helpful guidance navigating the ETS, AALRR has developed a COVID-19 Prevention Plan and can assist clients in preparing their own plan. The AALRR Model COVID-19 Prevention Plan is available for purchase [here].
We encourage employers to carefully review the ETS and the updated FAQs in detail, and to 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.