On Monday, November 30, 2020, the Office of Administrative Law approved the new COVID-19 emergency regulation, which went into effect immediately. As previously reported, the California Occupational Safety and Health Standards Board (OSHSB) voted to adopt a comprehensive and complex COVID-19 emergency regulation addressing a variety of issues related to COVID-19 in the workplace. The California Division of Occupational Safety and Health (Cal/OSHA) has released several guidance documents to help employers as they develop their written COVID-19 Prevention Program.
The new emergency regulation applies to most workers in California and requires employers to develop and implement a comprehensive written COVID-19 Prevention Program that addresses:
- A system for communicating COVID-19 information;
- Identification and evaluation of COVID-19 hazards;
- Investigating and responding to COVID-19 cases in the workplace;
- Correction of COVID-19 hazards;
- Training and instruction;
- Physical distancing;
- Face coverings;
- Other engineering controls, administrative controls and personal protective equipment;
- Reporting, recordkeeping and access;
- Exclusion of COVID-19 cases; and
- Return-to-work criteria.
For each of the above elements, the requirements are detailed and complex, and also include significant notification, reporting, testing and safety requirements. For example, employers must:
- Investigate any potential COVID-19 exposures in the workplace;
- Notify potentially exposed employees within one business day of the exposure; and
- Offer free COVID-19 testing to potentially exposed employees.
Employers must also report COVID-19 cases to their local public health departments within 48 hours when an “outbreak” occurs at the workplace, which is defined as three or more cases within two weeks. Additionally, employers must exclude exposed employees from the workplace for 14 days and “maintain the employee’s earnings, seniority, and all other rights and benefits” while they’re out.
The regulation’s complexity, along with the speed at which it was proposed, adopted and approved, raises a lot of compliance questions and concerns. In response, Cal/OSHA quickly released several guidance documents to help employers navigate the new standard — a FAQ page, a brief fact sheet and a model written COVID-19 Prevention Program.
The new COVID-19 Emergency Temporary Standards FAQs page summarizes many of the regulation’s requirements and clarifies some unresolved questions. For example, regarding who the standard applies to, for employees who split their worktime between their worksite and home, the new emergency regulation applies only when the employees work at the workplace, or are exposed at work, but not when they work from home. However, Cal/OSHA’s guidance doesn’t address all concerns, like the requirement to maintain an excluded employee’s earnings and benefits.
Cal/OSHA states that this guidance is just the start. The FAQs will be updated and revised on an ongoing basis. A stakeholder meeting in December will explain the new regulation and answer questions. Cal/OSHA is also developing training on the new standard that will be available in a webinar format. Employers should review the new guidance carefully and continue to consult with legal counsel on the development of their written COVID-19 Prevention Program. Cal/OSHA’s model program may provide some employers with a starting point, but employers should work with legal counsel on tailoring a program for their specific industries and worksites. HRWatchdog and CalChamber will continue to provide updates as circumstances develop.