Cal/OSHA Issues Immediate COVID-19 Prevention Requirements for Nearly All California Employers

The California Office of Administrative Law on Nov. 30, 2020, approved emergency regulations passed by the California Division of Occupational Safety and Health (Cal/OSHA). The emergency regulations, effective immediately, generally require site-specific written COVID-19 prevention programs, training for employees, notification requirements and, perhaps most significantly, require providing free testing to employees in certain circumstances. The regulations apply to all employees and places of employment, except for places of employment with one employee where there is no contact with other persons, employees working from home or employees covered by Cal/OSHA's Aerosol Transmissible Diseases standard.

Notice, Training and Prevention

The emergency regulations, which will be in place for 180 days while permanent regulations are drafted, mandates implementing and maintaining a written COVID-19 prevention program. Many aspects of the COVID-19 prevention program also dovetail with the new regulations' training and instruction requirements.

Employers must provide employees with the following information in a "readily understandable" manner:

• how to report to the employer COVID-19 symptoms, possible COVID-19 exposure and possible COVID-19 hazards at the workplace
• policies and procedures for accommodating employees with medical or other conditions placing them at higher risk for severe COVID-19 illness
• information about access to COVID-19 testing
• policies and procedures to protect employees from COVID-19 hazards
• information regarding leave benefits available, including under Workers' Compensation, the Labor Code, the Families First Coronavirus Response Act (FFCRA) and local government regulations
• information about how COVID-19 is spread
• methods of physical distancing and using PPE in conjunction with physical distancing
• that physical distancing and PPE are necessary because of how the virus can be transmitted
• the importance of hand washing for at least 20 seconds
• proper use of face coverings
• COVID symptoms and the importance of not coming to work if symptomatic

An employer's COVID-19 plan must also include a process for screening employees and for responding to an employee who is either experiencing or demonstrating COVID-19 symptoms, or who has tested positive. Employers are permitted to require employees to "self-check" prior to coming into work.

Employers must also provide face coverings at no cost to employees.

Identification and Reporting of COVID-19 Cases

Employers' COVID-19 plans must also include effective procedures to investigate COVID-19 cases, including verification and tracking of positive tests in the workplace. The regulations require that a COVID-19 prevention plan include procedures to:

• determine when the COVID-19 case was present in the workplace
• determine who may have been exposed and provide notice to those potentially exposed
• offer testing to potentially exposed employees
• provide information on available benefits
• investigate how the workplace may have contributed to the COVID-19 exposure

Employers must immediately report to Cal/OSHA any COVID-19-related serious illnesses or deaths occurring in a place of employment or in connection with employment and must keep records of COVID-19 cases, with strict confidentiality restrictions. Recordkeeping requirements include logging/tracking COVID-19 cases, the location where positive "cases" worked, the last date physically at the workplace and the date of the positive COVID-19 test.

Testing, Outbreaks and Major Outbreaks

Significantly, employers must "[o]ffer COVID-19 testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace," in addition to providing certain information (stated above) about leaves and other potential benefits. There is no requirement that testing be performed at the site of employment, but testing access must be available during work hours – in other words, an employee who must be tested must be permitted to visit a testing site during working hours.

If an "outbreak" occurs at a worksite – that is, three or more COVID-19 cases within a 14-day period – additional testing is required. Employers must provide testing to "all employees at the exposed workplace" except for those not present during the outbreak period. Additionally, employers must test this same employee population one week after the first test, and continue providing testing on a once-weekly basis until the outbreak has ended. Employers must also immediately investigate and determine possible workplace-relatedness, as well as implement any necessary changes, contact the local health department within 48 hours and exclude certain employees from the worksite (discussed below).

If a "major outbreak" occurs at a worksite – 20 or more COVID-19 cases in a 30-day period – an employer must offer twice-weekly COVID-19 testing (or more frequently if recommended by the local health department) to all employees present at the exposed worksite during the relevant 30-day period and who remain at the worksite. Employers must also consider specified changes to ventilation/air filtration systems, whether a respiratory protection program is needed, or even halting some or all operations while COVID-19 hazards are present. Employee exclusion requirements are still in place as well.

Excluding Employees from the Workplace and Returning Employees to Work

All employees who have tested positive for COVID-19 must be excluded from the workplace to a certain extent, depending on current status.

• Employees who are experiencing or have experienced COVID-19 symptoms – even if they did not obtain a COVID-19 test – may not return to work until 1) at least 24 hours have passed since a fever of 100.4 or higher has resolved without use of fever-reducing medications, 2) other COVID-19 symptoms have improved and 3) 10 days have passed since COVID-19 symptoms first appeared.
• Employees who have tested positive but are asymptomatic may not return to work until at least 10 days after the date they took their first positive COVID-19 test.
• Employees who have been potentially exposed at the workplace, for example, by being in close contact with a "positive" employee, must be excluded from the workplace for 14 days after the last known exposure to a COVID-19 case.
• Employees who are subject to isolation or quarantine orders may not return until the period of isolation/quarantine is completed or the isolation/quarantine order is lifted.
• Employers are expressly forbidden from requiring a negative COVID-19 test result prior to permitting an employee to return to work.

Critically, if an employee is excluded from the workplace due to potential workplace exposure but is otherwise able and available to perform work, the employer is required to continue and maintain the employee's earnings, seniority, and all other rights and benefits. Employers may meet the "earnings" requirement through paying out accrued "employer-provided employee sick leave," and may also consider benefits payments from public sources and other legally mandated COVID-19 pay or sick pay in determining what is necessary to "maintain" the employee's earnings.

Definition of "Worksite"

The new regulations do not necessarily require complete and total shuttering of an entire physical location when a COVID-19 case is detected because of the definition of "worksite" and "exposed workplace" used.

A "worksite," defined by reference to Labor Code Section 6409.6(d)(5), is "the building, store, facility, agricultural field, or other location where a worker worked during the infectious period," but it "does not apply to buildings, floors, or other locations of the employer" that the COVID-19 positive employee did not enter. An "exposed workplace" is "any work location, working area, or common area at work used or accessed by a COVID-19 case during the high-risk period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas," but again excludes "buildings or facilities not entered by a COVID-19 case." Furthermore, "in a multiworksite environment, the employer need only notify employees who were at the same worksite as the qualified individual."

The upshot of the definitions of "worksite" and "exposed workplace" is that only particular areas of any given physical location of employment may be subject to notice and testing requirements, a nod to common-sense divisions of labor in the workplace. For example, a positive case of COVID-19 at a loading dock of a large box store is likely a separate "worksite" from the "worksite" where cashiers ring up customers.

Holland & Knight Can Help

The Cal/OSHA regulations are an extremely complex web of cross-references and confusing, overlapping requirements. Businesses are encouraged to contact the author or their Holland & Knight attorneys and advisors for further information, especially as permanent regulations are developed.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.