Keenan Briefings


Emergency Temporary Guidance About Cal/OSHA Standards Requiring Medical Surveillance Examinations and COVID-19 Risks

July 10, 2020

During the current COVID-19 pandemic, medical providers and patients have been advised by the US Centers for Disease Control and Prevention and by the California Department of Public Health to avoid or postpone non-urgent medical visits, especially those requiring face-to-face contact, in order to decrease the risk of COVID-19 exposure.

However, 28 Cal/OSHA standards require employers to offer their employees medical surveillance examinations and other medical services on a specified schedule when employees may be exposed to certain workplace hazards above an Action Level (AL).

Under their fundamental duty “to first do no harm,” physicians and other licensed health care professionals (PLHCPs) must balance risks and benefits in deciding to offer any medical service. Applying this principle to occupational surveillance exams, a PLHCP may judge that certain surveillance exams are not needed urgently because they are aimed primarily at detecting chronic health problems that may arise slowly over months-to-years.

In these situations, the risk of potential COVID-19 exposures during a face-to-face encounter may outweigh the likely medical benefit, especially since COVID-19 is often spread by persons with no symptoms.

On June 5, 2020, the California Division of Occupational Safety and Health (Cal/OSHA) issued temporary guidance on balancing the need for medical surveillance examinations with the risk of COVID-19 exposure during face-to-face contact. This guidance comes in the form of a table (Table 1) that helps PLHCPs through the decision-making process in various scenarios where they may be planning to conduct mandated surveillance exams. The table suggests surveillance elements that might reasonably be delayed, and which should not be delayed, along with specific advice about certain standards. The table separately lists those elements required at initial placement and those required at periodic intervals.

Table 1: Mandated Surveillance Exams and Consideration of Temporary Delay due to COVID-19 Risks

Cal/OSHA emphasizes that this guidance does not relieve an employer of its duty to offer mandated surveillance exams. However, it is recognized that in the current pandemic many employees will be engaged in “essential” jobs and tasks, and that employers must rely on the medical judgment of a PLHCP in fulfilling these surveillance obligations.

When a PLHCP judges that the risk of a possible COVID-19 exposure outweighs the possible benefit of a surveillance exam, the PLHCP should supply the employer with written documentation outlining the reasons for such a decision. Additionally, it is hoped that PLHCPs who continue to conduct surveillance exams will observe “best practices” by using telemedicine and questionnaires whenever possible, in place of face-to-face encounters.

Finally, if certain elements of a required surveillance exam have been delayed because of a PLHCP’s medical judgment, it is advised employers prepare a written plan describing how they will bring any delayed surveillance exams up-to-date once public health authorities have finally declared the COVID-19 pandemic over.

For questions or additional advice, employers and PLHCPs can contact Cal/OSHA Consultation at: (800) 963-9424.

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.