California Division of Occupational Health and Safety (Cal/OSHA) Enacts Emergency Temporary COVID-19 Standards

California’s Division of Occupational Health and Safety (Cal/OSHA) adopted Emergency Temporary Standards (“the Standards”) to prevent the further spread of COVID-19 infections in the workplace, which were approved by the Office of Administrative Law on November 30, 2020, and became effective immediately. Among other things, the Cal/OSHA Standards require employers to adopt a written COVID-19 Prevention Program and to provide any employee who has been exposed to COVID-19 with 14 days of paid leave to quarantine. Cal/OSHA has posted FAQs and a one-page fact sheet on the Standards. The Standards will be in effect for 180 days and may be renewed two times, for 90 days each time.

Who is Covered?

The new Cal/OSHA Standards cover all employers and employees in California, except:

Employers with one employee who has no contact with other persons;
Employees working from home; and
Employers covered by Cal/OSHA’s Aerosol Transmissible Diseases standard applicable to certain healthcare facilities, labs, and other employers.

Written COVID-19 Prevention Program

The Standards require covered employers to establish, implement, and maintain an effective written COVID-19 Prevention Program (CPP). The CPP should be modeled on the written Injury and Illness Prevention Plan (IIPP) that all employers are already required to maintain pursuant to California’s Occupational Safety and Health Regulations and can be integrated into the IIPP or maintained as a separate document. Employers can use Cal/OSHA’s COVID-19 Model Prevention Program as a guide to creating a CPP that is uniquely tailored to their workplaces.

The written CPP must include the following:

Communication System: A system for communicating with employees about COVID-19 symptoms and illnesses, hazards, prevention procedures, testing, as well as a system for employees to report exposures to COVID-19 without fear of retaliation.
Identification and Evaluation of COVID-19 Hazards: A process for screening employees for symptoms, identifying workplace conditions and practices that could result in potential COVID-19 exposure, and responding effectively to such exposures.
Investigating and Responding to COVID-19 Cases in the Workplace: Procedures for investigating the case status and test results of employees with COVID-19, evaluating who may have been exposed, providing notice (within one business day) to employees, independent contractors, and others employers who were exposed at the workplace, offering testing during working hours at no cost to workers who may have been exposed in the workplace, and investigating whether any workplace conditions could have contributed to the exposure risk.
Correcting COVID-19 Hazards: Procedures for correcting unsafe or unhealthy conditions and work practices in a timely manner.
Training and Instruction: Programs to educate employees regarding the employer’s policies on COVID-19, COVID-19 benefits available under all applicable laws, COVID-19 transmission information, methods of preventing exposure (e.g. physical distancing, face coverings, frequent hand-washing, etc.), and information about COVID-19 symptoms and the importance of not coming to work and testing when experiencing symptoms.
Physical Distancing: Ensuring employees are separated from others by at least 6 feet, except where an employer can demonstrate that 6 feet of separation is not possible or there is only momentary exposure.
Face Coverings: Employers must provide proper face coverings and ensure that they are worn correctly. Face shields are not a replacement for face coverings, but may be worn with a face covering.

There are limited exceptions to the requirement that employees wear a face covering, which include:

1. when an employee is alone in a room;
2. employees who are eating and drinking while physically distancing;
3. employees who are wearing respiratory protection;
4. employees who cannot wear face coverings due to a medical condition;
5. when communicating with a hearing-impaired person; and
6. when a specific task cannot be feasibly performed with a face covering.

Employers must also implement measures to communicate the face covering requirements to non-employees on their premises and develop policies to minimize COVID-19 hazards originating from any person not wearing a face covering, including a member of the public.

Other Engineering Controls, Administrative Controls, and Personal Protective Equipment: This includes installing partitions when physical distancing is not possible, implementing cleaning and disinfecting procedures, and providing personal protective equipment (PPE) and respiratory protection where needed.

*Note: Provision or use of hand sanitizers with methyl alcohol is prohibited.

Reporting, Recordkeeping, and Access: Employers must report a COVID-19 serious illness (e.g., illness requiring inpatient hospitalization) or death at the workplace to Cal/OSHA immediately, and no later than eight hours after the employer became aware of the case. Where required by local law, employers must notify the local health department. Employers must also maintain records related to their written COVID-19 prevention program, and report and track 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. Such information must also be made available to employees and their authorized representatives.

*Records containing personal identifying information regarding COVID-19 cases must be kept confidential, with the exception of unredacted information that must be provided to health departments, or as otherwise required by law.

Return to Work Criteria: Under the Standards, employees who test positive for COVID-19 and experience symptoms shall not return to work until:

1. at least 24 hours have passed since a fever of 100.4 degrees or higher has resolved without fever-reducing medications;
2. COVID-19 symptoms have improved, and
3. at least 10 days have passed since COVID-19 symptoms first appeared.

Employees who tested positive for COVID-19 but never developed COVID-19 symptoms shall not return to work until at least 10 days have passed.

*Notably, a negative COVID-19 test cannot be required for an employee to return to work. This is because, according to the CDPH Updated COVID-19 Testing Guidance issued on September 22, 2020, “because [Polymerase Chain Reaction] tests can remain positive long after an individual is no longer infectious, proof of a negative test should not be required prior to returning to the workplace after documented COVID infection.”

Multiple COVID-19 Infections and Outbreaks

The Standards also include requirements for employers who experience multiple COVID-19 infections and major outbreaks at their worksites. Employers that have been identified by a local health department as the location of a COVID-19 outbreak or that have had three or more COVID-19 cases reported in their workplace within a 14-day period must:

Provide COVID-19 testing to exposed employees during their working hours at no cost;
Exclude employees who are COVID-19 positive or who have had exposure to COVID-19 from the workplace;
Investigate and determine possible workplace factors that contributed to the outbreak;
Review their COVID-19 policies and procedures and implement changes to prevent further spread; and
Notify the local health department within 48 hours after the employer knows, or with diligent inquiry would have known, of three or more COVID-19 positive cases in order to obtain guidance on preventing the further spread of COVID-19 in the workplace.

Major COVID-19 Outbreaks

The Cal/OSHA regulations also address “major outbreaks” in the workplace, defined as when there are 20 or more COVID-19 cases reported in an exposed workplace within a 30-day period. During major outbreaks, employers must:

Provide COVID-19 testing at no cost to exposed employees during their work hours at least twice a week (or more frequently if recommended by the local health department);
Correct COVID-19 hazards, including following specific air filtration standards; and
Comply with the requirements for multiple COVID-19 infections and outbreaks described above.

Quarantine for Employees Exposed to COVID-19

California employers have faced changing guidance about how long an employee who has been exposed to a person who has tested positive for COVID-19 (but who has not also tested positive for COVID-19) must quarantine before returning to the workplace.

First, the Cal/OSHA Standards, which became effective on November 30, 2019, called for a 14 -day quarantine referred to as the “exclusionary period.” Under the Standards, employees must continue to be paid during their quarantine, and the payment is referred to as “exclusion pay.” According to the Cal/OSHA FAQs, “[a]n 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.” Cal/OSHA has not yet provided an explanation regarding what “other benefits” might be used to offset paid leave. Employees who can continue to work remotely during their quarantine must continue to receive their regular pay and benefits and their jobs must be protected.

Subsequently, the California Department of Public Health (CDPH) issued guidelines on December 14, 2020, available here, recommending that “all asymptomatic close contacts (within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period) may discontinue quarantine after Day 10 from the date of last exposure with or without testing.” The same day, Governor Newsom issued an Executive Order directing California employers to follow the CDPH 10-day quarantine regulations, rather than the Cal/OSHA 14-day quarantine, for asymptomatic employees exposed to COVID-19.

In addition, the Executive Order provides that an employer which does business in a local jurisdiction that has adopted more stringent quarantine requirements must follow the local requirements. For example, the guidelines issued by the Los Angeles County Department of Health require a 14-day quarantine.

According to the CDPH, all exposed asymptomatic contacts permitted to reduce the quarantine period to 10 days must nonetheless strictly adhere to non-pharmaceutical interventions through Day 14, including wearing face coverings when outside the home, using surgical face masks at all times during work, hand washing, keeping a distance of 6 feet when possible, and self-monitoring their symptoms.

As the quarantine period is paid leave under California law, the Governor’s Executive Order provides some welcome economic relief to California employers.

Other Requirements

Aside from the foregoing, the Standards also impose additional requirements on employers who provide housing and/or transportation to their employees. The Standards also include provisions that are specific to asymptomatic healthcare workers, emergency response, and social service workers who work face-to-face with clients in the child welfare system or in assisted living facilities during critical staffing shortages.

Possible Challenges to the Standards

The Cal/OSHA Standards have already been challenged in two lawsuits. The first was filed by the National Retail Federation, the National Federation of Independent Businesses, and several small businesses. Among other things, the plaintiffs allege that Cal/OSHA is not authorized to require employers to provide paid sick leave. A second lawsuit was filed by agricultural organizations, including the California Farm Bureau Federation, the Western Growers Association, and the California Business Roundtable.

Next Steps

Covered employers should immediately create a written CPP to comply with the Standards. As noted above, employers can use Cal/OSHA’s COVID-19 Model Prevention Program as a guide to creating a CPP that is uniquely tailored to their workplaces. Employers should also monitor any local public health orders in the event they require a longer quarantine period than CDPH guidelines.

As COVID-19 regulations are rapidly changing, we will continue to review updates and provide additional information as it becomes available. Please feel free to reach out to any of our attorneys if you have any questions or would like our assistance in updating your policies to comply with the new Standards.