Keenan Briefings

Briefing

COVID-19 Emergency Temporary Standards FAQs

On January 8, 2021, Cal-OSHA issued updated Q&A guidance regarding its COVID-19 Emergency Temporary Standards (ETS), which govern the steps most employers must take to protect employees from COVID-19 transmission at the workplace. A summary of the ETS can be found in Keenan’s December Briefing, Cal-OSHA Enacts New COVID-19 Workplace Safety Standards.

The guidance, which can be found here, addresses 68 questions regarding the scope of coverage of the ETS, enforcement, the COVID-19 Prevention Program and communicating with employees.

Interaction with the Aerosol Transmissible Diseases (ATD Standard)

Notably for employers with employees already covered by the ATD standard (including hospitals, medical providers, emergency service providers and police), the FAQs clarify that the ETS applies to employees at these facilities who are not identified in the employer’s ATD Exposure Control Plan as having occupational exposure to aerosol transmissible diseases, such as administrative employees who work only in an office environment separated from patient care facilities. It also clarifies that an employee in a single workplace cannot be subject to both the ETS and Labor Code section 5199 (ATD standards) at different times. A facility or operation that is within the scope of section 5199, employees with occupational exposure to ATDs, as defined in section 5199, are covered by the requirements of section 5199, and not the ETS. This is true even when an employee who has occupational exposure performs tasks that do not include exposure to ATDs, e.g., when a hospital nurse who performs patient care spends time in the hospital’s human resources office. Moreover, the guidance allows an employer at a workplace covered by section 5199 to deem all employees on site to have occupational exposure to COVID-19 and exempt them from the ETS, if the employer provides all employees with protections under its ATD Exposure Control Plan and has incorporated those employees into the plan in accordance with section 5199 because they have an occupational exposure to COVID-19.

COVID-19 Testing

The guidance reiterates that an employer’s COVID-19 testing obligations under the ETS are to:

• Inform all employees on how they can obtain testing. This could be through the employer, local health department, a health plan, or at a community testing center. The only obligation to all employees is to provide information;
• 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.

It further states that information must be provided in a manner that ensures employee confidentiality. The FAQs clarify that there is no difference between the terms “offer testing” and “provide testing” in the ETS. The guidance clarifies that an employer may provide testing to employees at a testing site separate from their work location, and it can send employees to a free testing site for testing (e.g., run by their county) as long as employees incur no cost for the testing. Ensuring that an employee does not incur costs would include paying employees’ wages for their time to get tested as well as travel time to and from the testing site. It would also include reimbursing employees for travel costs to the testing site (e.g., mileage or public transportation costs). While the ETS provides that testing must be provided “during employees’ working hours,” the FAQs clarify that this means that the test must be provided during paid time. While the employee must be compensated for their time and travel expenses, the employer is not obligated to provide the test during the employee’s normal working hours.

Furthermore, the guidance provides that an employer that offers a test at no cost to the employee does not violate the regulation if an employee declines or refuses to take it. The employer is not required by the ETS to obtain a signed declination from employees who refuse to take a COVID-19 test offered by the employer (though it may still be advisable).

Exclusion Pay and Benefits

The FAQs answer a number of questions regarding an employer’s obligation under section 3205(c) of the ETS to provide pay and benefits to an employee who is excluded from the workplace because of COVID-19 exposure. They clarify that if an employee is unable to work because of his or her COVID-19 symptoms, then he or she is not eligible for exclusion pay and benefits under section 3205(c)(10)(C). The employee, however, may be eligible for workers’ compensation or State Disability Insurance (SDI) benefits.

The guidance clarifies that an employee can be required to exhaust available sick leave before providing exclusion pay. It further clarifies that an employee cannot receive both temporary disability (TD) benefits under workers’ compensation and receive their regular wages (or a portion of them) because they are excluded for work under section 3205(c)(10)(C). Cal/OSHA does not consider an employee receiving TD for wages lost during the period in which they are excluded from the workplace to be “able and available to work” within the meaning of section 3205(c)(10)(C). Similarly, the guidance states that an employee receiving TD because they have tested positive for COVID-19 but do not have symptoms that would otherwise prevent them from working, should not receive exclusion pay under the ETS. However, if an asymptomatic employee is able and available to work but is not eligible to receive payment through workers’ compensation for lost wages during the period in which they are excluded from work, they should be paid for that time according to section 3205(c)(10).

Waivers of Exclusion Requirements Based on Community Health and Safety

The ETS provides that employers can request a waiver of the requirement to quarantine/isolate exposed or COVID-19 positive employees from the workplace if doing so would create an undue risk to public health and safety. An operation must provide goods or services, the interruption of which would cause an undue risk to a community’s health and safety, in order to qualify. This exception is narrower than the definition of “critical infrastructure,” though such operations may qualify if there is an adverse impact on a community’s health and safety. A facility must be facing a potential staffing shortage based on actual COVID-19 cases or exposures in order to qualify for a waiver.

The FAQs provide that while there are no set criteria for granting a waiver in the ETS, the following information would constitute a complete waiver request which Cal/OSHA could quickly review and provide a response:

• Employer name and business or service;
• Employer point-of-contact name, address, email and phone number;
• Statement that there are no local or state health officer orders for isolation or quarantine of the excluded employees;
• Statement describing the way(s) in which excluding the exposed or COVID-19 positive employees from the workplace impacts the employer’s operation in a way that creates an undue risk to the community’s health and safety;
• Number of employees required to be quarantined under the ETS, and whether each was exposed to COVID-19 or tested positive for COVID-19; and
• The employer’s control measures to prevent transmission of COVID-19 in the workplace if the employee(s) return or continue to work in the workplace, including the prevention of further exposures. These include measures such as isolating the returned employee(s) at the workplace, use of respiratory protection by other employees in the exposed workplace, or other equally effective measures.

VACCINES

The FAQs clarify that all preventative measures outlined by the ETS must continue to be followed even after an employee has been vaccinated. The deployment of vaccines has no impact on the applicability or enforcement of the ETS.

RECORDKEEPING

The FAQs reiterate that when contacting the local health department when there are three or more COVID-19 cases in the workplace within a 14-day period, the following information must be provided:

• The total number of COVID-19 cases;
• For each COVID-19 case, the name, contact information, occupation, workplace location, business address, the hospitalization and/or fatality status, and North American Industry Classification System code of the workplace of the COVID-19 case; and
• Any other information requested by the local health department.

Employers are encouraged to review the entire guidance, which also provides links to additional resources. For compliance assistance on the ETS, please see Keenan’s Briefing, COVID-19 Employee Notice of Potential Exposure Template. For information regarding Keenan’s web-based portal to assist with recordkeeping requirements, please reach out to your Keenan Account Manager or Risk Management Analyst.

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.