As employers continue to grapple with the impact of the coronavirus pandemic upon the workplace, California’s Division of Occupational Safety and Health (Cal/OSHA) has adopted emergency temporary standards (ETS) that went into effect on November 30, 2020. The ETS, which will last for at least 180 days and are subject to extension, require most California employers to act immediately on several COVID-19-related fronts, including the implementation of written COVID-19 prevention programs that satisfy specific criteria.
Broadly, the ETS compel employers to put in place site-specific plans that address COVID-19 health hazards and correct unsafe or unhealthy conditions in the workplace. In addition, employers in the Golden State must furnish employees with face coverings and, when there are multiple COVID-19 infections or outbreaks at a given worksite, the employer in question must provide COVID-19 testing to employees and notify public health departments. Of note, the ETS also require accurate recordkeeping and reporting of COVID-19 cases.
Compliance With the ETS
Strict compliance with the ETS means that California employers must either (1) develop written standalone COVID-19 Prevention Programs or (2) ensure that the elements of such plans are included in existing Injury and Illness Prevention Programs (IIPP). Whatever the case may be, all of the following must be addressed:
- A system for communicating COVID-19 policies and procedures
- Identification and evaluation of COVID-19 hazards
- Investigation and response to COVID-19 cases in the workplace
- Correction of COVID-19 hazards
- COVID-19-related training and instruction
- Physical distancing
- Face coverings
- Engineering and administrative controls realted to COVID-19
- Personal protective equipment
- COVID-19 reporting and recordkeeping
- Workplace exclusion of employees with or exposed to COVID-19
- Return to work criteria
What Employers May Not Already Be Doing in the Wake of COVID-19
As a practical matter, it is likely that most California employers have many of these protocols (as required under the ETS) already in place. Still, the ETS impose additional and specific obligations that may not be on employer radar screens and could require immediate action. As indicated above, employers must now:
- Offer COVID-19 testing at no cost and during working hours to all employees who may have been exposed to COVID-19 in the workplace
- Exclude from the workplace any employees diagnosed with COVID-19, as well as those who have been exposed to the virus. Exclusion lasts until (1) the excluded employee has not had a fever of 100.4 degrees or higher for at least 24 hours (and that fever resolved without the use of fever-reducing mediations); (2) his or her COVID-19 symptoms have improved; and (3) at least 10 days have passed since the COVID-19 symptoms first appeared. Employees who are not symptomatic but test positive for COVID-19 may not return to work until a minimum of 10 days have passed since the date of the COVID-19 test. In all cases, a negative COVID-19 test shall not be required for an employee to return to work
It is important to emphasize that while any employee is excluded from the workplace due to COVID-19, employers are required to continue and maintain their excluded employee’s earnings, seniority, and benefits.
In the Event of an Outbreak
While somewhat redundant of the foregoing requirements, it is important to shine a light on what an employer needs to do if a workplace experiences an outbreak of COVID-19 (defined as when a local health department identifies a workplace as an outbreak location, or when there are three or more COVID-19 cases in an exposed workplace during a 14-day period). In such a circumstance, employers must:
- Provide testing immediately to all employees during the outbreak period and additional testing one week later
- After the first two COVID-19 tests, provide additional COVID-19 testing of employees who remain at the workplace, at least once per week or more frequently if required by a local health department
- Exclude from the workplace all employees who have tested positive for COVID-19, as well as employees exposed to the virus
- Immediately investigate and determine the possible workplace factors that contributed to the outbreak and take appropriate corrective action
- Document the investigation in accordance with the ETS and notify the local health department accordingly
In the Event of a Major Outbreak
A major COVID-19 outbreak is one involving 20 or more cases within a 30-day period (and lasts until there are no new cases for a 14-day period). Where a major outbreak is in effect, employers must (1) conduct twice-weekly free testing during employee work hours; (2) evaluate and possibly correct onsite ventilation systems; (3) determine the need for respiratory protection programs (or make changes to existing ones); and (4) evaluate whether to halt some or all operations until the COVID-19 hazards have been corrected.
A Final Word on the ETS
In addition to all of the foregoing, the ETS also include mandates related to employee housing and/or motor vehicle transportation to and from work. Rest assured, the employment lawyers at Michelman & Robinson, LLP are available to shed light on these additional requirements, answer any questions you may have about the ETS, and assist in implementing compliant COVID-19 Prevention Programs or IIPPs.
This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.
