Briefings

On November 19, 2020, the California Occupational Safety and Health Standards Board (OSHSB) voted to approve a new emergency temporary standard (ETS) to protect general industry employees. These standards were approved by the Office of Administrative Law on November 30, 2020 and are effective immediately.

Background

The state has had a workplace safety standard in place for Aerosolized Transmissible Diseases (ATD) like COVID-19 for many years. These ATD regulations, however, only apply to employee groups in certain facilities, service categories or operations, including hospitals, clinics, medical offices, paramedic and emergency medical services (including these services when performed by firefighters and other emergency providers), and police services. The existing ATD standard does not usually cover schools (except for limited application to some school nurses and potentially some special education staff), retail locations or non-medical offices.

In response to the COVID-19 pandemic, on May 20, 2020, labor-backed organizations petitioned the Occupational Safety and Health Standards Board to develop a permanent standard to protect workers not currently protected by the existing ATD standard. The regulations summarized in this Briefing, which were drafted without any employer community input, were developed as a result of this petition.

In general terms, the ETS uses the current Illness and Injury Prevention Program (IIPP) regulation, which requires employers to create a written plan for employee protection as a framework. They require California employers to create procedures to identify and evaluate COVID-19 hazards; to control the hazard of exposure; to respond to employees who have been diagnosed with, have symptoms of, or have been exposed to COVID-19; to identify modes of transmission in the workplace and adopt and implement preventive measures to minimize risk; and to institute employee training; among other requirements. The ETS is contained in five regulatory sections, which are summarized below.

Section 3205 — Written COVID-19 Prevention Plan

Section 3205 applies to all employees and places of employment, regardless of size. It does not apply to employees working from home, those at places of employment with one employee who does not have contact with other persons, or those covered by the existing ATD standard. It requires covered employers to establish, implement and maintain a written COVID-19 Prevention Program (CPP) which may be integrated into the employer’s IIPP. The elements of the written CPP must include:

• Communications, including soliciting employees to report COVID-19 symptoms, possible exposures and hazards at the workplace and communicating to employees information about hazards, accommodations, and testing.
• Identification and evaluation of COVID-19 hazards, including a process for screening employees and responding to symptomatic employees, evaluation of ventilation systems, and conducting periodic inspections to identify unhealthy conditions and practices and ensure compliance with policies and procedures.
• Investigation and response to COVID-19 cases. Employers must have procedures to verify COVID-19 case status, and to contact-trace who else at the workplace was exposed during the “high-risk period” (defined as (a) from two days before first symptoms to ten days afterward and 24 hours have passed with no fever for persons who develop COVID-19 symptoms, and (b) from two days before until ten days after the specimen for the first positive COVID-19 test was collected for asymptomatic employees). They are also required by this regulation to give notice of the potential exposure within one business day to all employees and independent contractors who may have been exposed. The employer must offer COVID-19 testing at no cost to those employees who had a potential COVID-19 exposure in the workplace.
• Correction of COVID-19 hazards.
• Training and instruction to all employees on COVID-19 and the employer’s policies and procedures to protect employees from COVID-19 hazards.
• Physical distancing of employees by at least six feet, reducing the number of persons in one area at one time, signs and floor markings, staggered work and break hours, and remote work arrangements.
• Employer-provided face coverings, which must be worn at indoor workplaces.
• Other engineering controls, administrative controls, and personal protective equipment (PPE), including cleanable solid partitions between employees where the required physical distance cannot be maintained, cleaning and disinfecting procedures, prohibiting the sharing of PPE and other equipment, time and facilities for handwashing.
• Reporting, recordkeeping and access.

The most controversial component of the requirements for a written COVID-19 prevention plan is the one requiring exclusion from the workplace of (1) all COVID-19 cases until all return to work criteria in the EST are met and (2) all employees with COVID-19 exposure from the workplace for 14 days after the last known exposure. During that time, employers must continue and maintain an employee’s earnings, seniority and all rights and benefits of employment, including a right to return to their former position. The regulation provides that employers may require employees to use available sick leave time and consider benefit payments from public sources in determining how to maintain earnings, rights and benefits, where permitted by law and when not covered by workers’ compensation. The regulations also state that these obligations do not apply if an employer establishes that the employee’s exposure was not work-related.

Section 3205.1 — Outbreaks

Sections 3205.1 and 3205.2 set forth additional employer obligations in the case of “outbreaks” and “major outbreaks.” For purposes of this regulation, an “outbreak” is defined as either (1) the workplace being identified by a local health department as the location of a COVID-19 outbreak, or (2) when there are three or more COVID-19 cases detected in a workplace within a 14-day period. The obligations Section 3205.1 places on employers apply until there are no new COVID-19 cases detected in a workplace for a 14-day period. The additional obligations include:

• Immediate and weekly testing for all employees exposed, at no cost to the employees and during work hours.
• Investigation, review and hazard correction. In addition to the investigation, response and correction requirements of Section 3205, Section 3205.1 requires employers to review new or unabated COVID-19 hazards, including a review of their leave policies and practices to ascertain whether they discourage employees to remain home when sick. Reviews shall be updated at least every thirty days while the outbreak continues.
• Notifying the local health department.

Section 3205.2 — Major Outbreaks

This section applies when there are 20 or more COVID-19 cases in a workplace within a 30-day period. In addition to the provisions in Sections 3205 and 3205.1, Section 3205.2 requires:

• Twice-weekly COVID-19 testing to all employees present at the workplace during the relevant 30-day period, at no cost to the employee, and during working hours.
• Hazard correction. Employers are required to take the following additional actions:
  • In buildings with mechanical ventilation, filter recirculated air with Minimum Efficiency Reporting Value (MERV) 13 or higher filters, or the highest compatible filtering efficiency if MERV-13 or higher filters are not compatible.
  • Determine the need for a respiratory protection program or changes to the employer’s existing one.
  • Evaluate whether to halt some or all operations at the workplace until COVID-19 hazards have been corrected.

Sections 3205.3 and 3205.4 — Employer-Provided Travel and Housing

Sections 3205.3 and 3205.4 describe an employer’s COVID-19 prevention obligations if the employer provides employees with housing or transportation. Those obligations will not be detailed in this Briefing, except to note the exceptions to those sections:

• Section 3205.3 does not apply to housing provided by government entity employers, or if the housing is provided for the purpose of emergency response.
• Section 3205.4 only applies to employer-provided motor vehicle transportation to and from work. It does not apply to employer-provided transportation when necessary for emergency response or if the driver and all the passengers are members of the same household.

The entire approved ETS can be found here.

Additionally, the Department of Industrial Relations (DIR) has released guidance in the form of Frequently Asked Questions (FAQs) and a Model COVID-19 Prevention Plan.

Compliance Concerns

In the course of the abbreviated approval process, the employer community raised a list of concerns presented by the ETS. Among them are the following:

• These regulations establish yet a third set of definitions of “outbreak” that employers will have to track.
• The regulations contain another set of notification rules, different from and in addition to those going into effect on January 2, 2021 under AB 685.
• These regulations overstep Cal-OSHA’s statutory authority. It does not have the authority to regulate work hours, employee leaves, housing or transportation. It is expected that litigation will be filed, seeking to overturn this part of the emergency regulations.
• Privacy concerns. The regulations put employers in the position of asking employees personal questions about onset of disease symptoms that employers are not allowed to ask employees under other circumstances.
• The exclusion from work provision does not provide sufficient detail on coordination with other paid and unpaid leave provisions in the law, including workers’ compensation.
• The employer testing provisions lack clarity on whether employers can rely on health insurance or publicly available community testing to defray costs. While they specify that testing must be done during work hours, they do not say whether the testing must be done at the worksite or can be done at another location.

In light of the immediate effective date of this standard, Cal-OSHA noted that many of the ETS provisions have already been required under the employer’s IIPP, including the requirement to identify and address hazards, the use of face coverings and physical distancing. The FAQ guidance notes that, “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.” The Division of Occupational Safety and Health (DOSH) has stated that it expects this emergency standard to be effective for between 18 and 21 months and will soon begin a stakeholder process to develop an ATD permanent standard for general industry.

Impact on Keenan Clients

These regulations do not apply to workplaces and employees to whom the existing ATD standards apply. Therefore, certain employee groups covered by hospitals, clinics, and medical offices are likely exempt from these regulations. The ETS applies to employees at these facilities who are not identified in the employer’s Aerosol Transmissible Diseases Exposure Control Plan, as required under the ATD standard (CCR section 5199), as having occupational exposure to aerosol transmissible diseases, such as administrative employees who work only in an office environment separated from patient care facilities. Likewise, paramedic and emergency medical services employees (including firefighters and other emergency providers), and those providing police services are also not subject to the new regulations.

While the existing ATD standard has limited application to school nurses, schools and colleges will have to comply with the new Cal-OSHA standard, and it will also apply to non-emergency municipal personnel.

Keenan is working on developing additional tools, resources and services to assist clients with other requirements of this regulation. In coming days, we will continue to release more details. Please contact your Loss Control Consultant or Account Manager for further assistance or if you have any questions.

Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.