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A Deeper Dive into the New Cal/OSHA Temporary Emergency Standards for COVID-19 Prevention

Posted in FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations

As we wrote on December 3, 2020, an emergency COVID-19 rule was adopted and approved by the California Occupational Safety and Health Standards Board. The regulation contains significant new requirements including a mandatory written “COVID-19 Prevention Program,” paid time off in certain circumstances when a “COVID-19 case” is excluded from the workplace, notice and training requirements, and requires that employers offer testing in some situations.

The emergency standards will remain in effect for 180 days unless renewed, withdrawn or replaced. It applies to all California employers covered by Cal/OSHA (generally, employers with ten or more employees at any time during the year).

This blog summarizes and highlights some of the key provisions (other than the requirement that employers develop a written “COVID-19 Prevention Program” as discussed in our previous blog).

Training.

Employers must provide training to employees (the manner of training is not specified) that includes, in summary:

  • The employer’s COVID-19 policies and procedures to protect employees from COVID-19.
  • Information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws.
  • Information that COVID-19 is an infectious disease, methods of transmission, that a person can be asymptomatic, and how particles can travel.
  • Methods of physical distancing and the importance of combining physical distancing with the wearing of face coverings and hand hygiene to be effective.
  • The importance of frequent hand washing.
  • Proper use of face coverings and the fact that face coverings are not respiratory protective equipment.
  • COVID-19 symptoms, and the importance of not coming to work and obtaining a COVID-19 test if the employee has COVID-19 symptoms.

Cal/OSHA has set up a training academy with online training videos available free of charge, but this, alone, will not suffice to satisfy the training requirements because employers must provide workplace-specific information to employees about the company’s own policies and procedures.

Exposure Notification Requirements.

The emergency COVID-19 regulation requires that a business notify exposed employees, their authorized representatives, independent contractors, or employers at a worksite, within one business day of a potential COVID-19 exposure at a worksite.

Exclusion of COVID Cases.

Cal/OSHA exercised authority normally reserved to the California Division of Labor Standards Enforcement to require employers to provide paid time off to “COVID-19 cases” or employees with “COVID-19 exposure” during the time that employees must exclude them from the workplace.

The emergency rule requires employers to exclude a “COVID-19 case,” defined as “a person who (1) [h]as a positive ‘COVID-19 test’ as defined [by the rule]; (2) [i]s subject to COVID-19-related orders to isolate issued by a local or state health official; or (3) [h]as died due to COVID-19.”

Employers also must “exclude employees with COVID-19 exposure from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case.”

“COVID-19 exposure” is defined as “being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the ‘high-risk exposure period.’” The “high-risk exposure period” varies depending on whether the person develops symptoms or tests positive but remains asymptomatic:

  • If an employee develops COVID-19 symptoms after a COVID-19 exposure, the high-risk exposure period is “from [2] days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.”
  • If an employee tests positive but remains asymptomatic, the high-risk exposure period is “from [2] days before until [10] days after the specimen for their first positive test for COVID-19 was collected.”

Employers are not required to exclude employees from work if they “have not been excluded or isolated by the local health department … [or] if they are temporarily reassigned to work where they do not have contact with other persons until the return to work requirements … are met.”

Employer Obligations During Exclusion Period.

Employers must “maintain employees’ earnings” and all other job-related rights and benefits, for the time until they satisfy the return to work criteria, except (1) for any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission or (2) where the employer demonstrates that the COVID-19 exposure is not work related.

It appears that “maintain earnings” means that employers must provide “paid time off.”

Employers are required to continue to provide paid time off until the employees satisfy the new rule’s return to work criteria.  But, employers may use California paid sick leave, COVID-19-related supplemental paid sick leave (SPSL), FFCRA leave (if applicable) or “benefit payments from public sources” such as State Disability Insurance where permitted by law and when not covered by worker’s compensation, to satisfy paid time off obligations.

Employees excluded from the workplace also must be given “[i]nformation regarding COVID-19-related benefits to which the employee[s] may be entitled under applicable federal, state, or local laws. This includes any benefits available under workers’ compensation law, the federal Families First Coronavirus Response Act, [California] Labor Code sections 248.1 [SPSL] and 248.5 [penalties and enforcement for not paying SPSL], Labor Code sections 3212.86 through 3212.88 [workers’ compensation presumptions for certain COVID-19 injuries and/or illness], local governmental requirements, the employer’s own leave policies, and leave guaranteed by contract [i.e. employment agreements or collective bargaining agreements].”

Return to Work Criteria.

The regulation provides different criteria depending on whether a person who is a COVID-19 case develops symptoms.

A COVID-19 case with COVID-19 symptoms shall not return to work until:

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

A COVID-19 case who tested positive but never developed COVID-19 symptoms shall not return to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.

The regulations expressly state that a negative COVID-19 test shall not be required for an employee to return to work.

In addition, if the employee is ordered by a local or state health official to isolate or quarantine,  the employee shall not return to work until the period of isolation or quarantine is completed or the order is lifted. If no period was specified, then the period shall be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.

If there are no violations of local or state health officer orders for isolation or quarantine, Cal/OSHA may, upon request, allow employees to return to work on the basis, under very limited circumstances.

Recordkeeping and Reporting.

In addition to keeping OSHA logs up to date with respect to workplace illness and injury, and existing rules requiring reporting, employers are specifically required to track all COVID-19 cases in the workplace.  Employers must also maintain medical records related to COVID-19 and provide those records to the local health department, the California Department of Public Health (CDPH), Cal/OSHA, and the National Institute for Occupational Safety and Health (NIOSH) upon request.  Employers must take care to protect medical records as confidential personal health information.

California employers that are required to record work-related fatalities, injuries and illnesses must record a work-related COVID-19 fatality or illness like any other occupational illness. To be recordable, an illness must be work-related and result in one of the following:

  • Death.
  • Days away from work.
  • Restricted work or transfer to another job.
  • Medical treatment beyond first aid.
  • Loss of consciousness.
  • A significant injury or illness diagnosed by a physician or other licensed health care professional.

If a work-related COVID-19 case meets one of these criteria, then employers must record the case on their 300, 300A and 301 or equivalent forms.

In addition to the recordkeeping requirements, California employers must also report to Cal/OSHA any serious illness, serious injury or death of an employee that occurred at work or in connection with work within eight hours of when they knew or should have known of the illness. (See section 342(a).) This includes a COVID-19 illness if it meets the definition of serious illness. A serious illness includes, among other things, any illness occurring at the place of employment or in connection with employment that requires inpatient hospitalization for other than medical observation or diagnostic testing.