Cal/OSHA Emergency Regulations Related to COVID-19 Now in Effect

Cal/OSHA’s emergency regulations requiring employers to protect workers from hazards related to COVID-19 became effective on November 30, 2020.  This is a snapshot of some of the requirements imposed on employers by these new regulations.

Coverage. The emergency standards apply to most workers in California except those covered by Cal/OSHA’s Aerosol Transmissible Diseases standard, employees working from home, and workplaces where there is only one employee who does not have contact with others.

Written Prevention Program. The regulations require that employers implement a site-specific written COVID-19 prevention program to address COVID-19 health hazards, correct unsafe or unhealthy conditions and provide face coverings. A prevention program must address the following topics:

• Communication to employees about the employer’s COVID-19 prevention procedures
• Identify, evaluate and correct COVID-19 hazards
• Physical distancing of at least six feet unless it is not possible
• Use of face coverings
• Use engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk
• Procedures to investigate and respond to COVID-19 cases in the workplace
• Provide COVID-19 training to employees
• Provide testing to employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas
• Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk
• Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required

Response to Workplace Infections. When there are multiple COVID-19 infections or outbreaks at the worksite, employers must provide COVID-19 testing at no cost to employees during their work hours and notify public health departments. The regulations also require accurate recordkeeping and reporting of COVID-19 cases.

Notices Regarding Workplace Infections.  Employers must provide notice of the potential COVID-19 exposure within one business day to all employees who may have been exposed to a COVID-19 case, their authorized representatives, and independent contractors and other employers who were present during the high-risk exposure period while maintaining employee confidentiality. Employers must also provide notice to employees regarding testing and benefits information. Employers must provide specific notice to the local health department within 48 hours after knowledge of an outbreak and continuous notice thereafter.

Return to Work. An employee with COVID-19 may return to work when any of the following occur:

• For employees with symptoms all of these conditions must be met:
  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
• For employees without symptoms, at least 10 days have passed since the COVID-19 case’s first positive test
• If a licensed health care professional determines the person is not/is no longer a COVID-19 case, in accordance with California Department of Public Health (CDPH) or local health department recommendations
• An employee who was exposed to COVID-19 may return to work 14 days after the last known COVID-19 exposure.
• An employer may not require a negative test from an employee in order to return to work.

Maintenance of Earnings and Benefits to Employees while Not at Work Due to COVID-19. For employees excluded from work due to COVID-19, the employer must continue to provide the employee’s pay, benefits (including seniority), and right to their former job status. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments. These obligations do not apply if an employer establishes the employee’s exposure was not work-related.

Unlike other COVID-19 relief laws, these obligations appear to create an indefinite obligation to continue earnings and benefits.  It is expected that these obligations will face a legal challenge.

Recordkeeping and Reporting. Employers must maintain a record of and track all COVID-19 cases, while ensuring medical information remains confidential. These records must be made available to employees, authorized employee representatives, or as otherwise required by law, with personal identifying information removed. When a COVID-19-related serious illness (e.g., COVID-19 illness requiring inpatient hospitalization) or death occurs, the employer must report this immediately to the nearest Cal/OSHA enforcement district office.

Training. Employers must also provide COVID-19 prevention, identification, and response training to employees.

Employers must work (with counsel) to ensure compliance with these new regulations. This legal update is not intended to be legal advice. Please contact our office so we can assist you to comply with these new legal requirements.

By, Rodrigo J. Torres, Esq.