The California Chamber of Commerce is urging the California Division of Occupational Safety and Health (Cal/OSHA) to delay enforcement of the emergency COVID-19 rules.
The emergency regulations went into effect on November 30, 2020, less than two weeks after the Cal/OSHA Standards Board voted to adopt them. They apply to all employers with employees working outside the home (except health care employers covered by the Aerosol Transmissible Diseases standard) and were enforceable immediately.
In a letter sent to Cal/OSHA officials on December 18, 2020, and at a virtual stakeholder meeting joined by more than 1,000 interested groups the same day, the CalChamber asked that enforcement be delayed until January 15, 2021, because employers were given no advance notice on what was required of them and many were struggling just to become familiar with compliance.
The regulations are separated into five compliance categories: COVID-19 Prevention Program; Outbreaks; Major Outbreaks; Employer-Provided Housing; and Employer-Provided Transportation.
Issues for Employers
The CalChamber has identified a number of areas that need to be reviewed and offered suggestions for improving the new requirements. Specifically, CalChamber has asked that Cal/OSHA clarify and change language in the regulation to:
- Address feasibility concerns regarding testing obligations;
- Determine how vaccinated employees will be considered under the new regulation;
- Address employees who refuse testing;
- Clarify employees’ and employers’ rights regarding investigating COVID-19 status;
- Reduce disruption of essential workplaces by shortening exclusion;
- Clarify obligation to “maintain earnings”;
- Clarify triggering of outbreaks from nonworkers;
- Address the application of the California Consumer Privacy Act to the emergency standard; and
- Clarify requirement to provide testing during “working hours.”
COVID-19 Prevention Program
The prevention effort’s centerpiece is the COVID-19 Prevention Program (Prevention Program). Although employers already were required to include COVID-19 elements in their Injury and Illness Prevention Program (IIPP) pursuant to prior Cal/OSHA guidance documents, the regulation added some specifics and broadened those requirements. According to the regulation, the Prevention Program must be in writing and contain information on the following subjects:
- System of Communicating COVID-19-Related Information.
- Identification and Evaluation of Hazards.
- Investigating and Responding to COVID-19 Cases in the Workplace.
- Correcting Workplace COVID-19 Hazards.
- Effective Training and Instruction to Employees Regarding COVID-19.
- Procedures for Physical Distancing.
- Face Coverings.
- Other Infection Controls and Personal Protective Equipment.
- Reporting, Recordkeeping and Employee Access to Employer COVID-19 Records.
- Excluding Employees from the Worksite and Job Protection.
- Return to Work Criteria.
Within each subject matter are several specific protocols that must be addressed.
Under the regulations, when an employee tests positive — regardless of the source of the infection — the employer must conduct contact tracing to determine which areas of the workplace were exposed, as well as whether any close contact occurred between the infected employee and other employees.
Recognizing that the Prevention Program requirements are extensive and detailed, Cal/OSHA released guidance for creating and implementing the Prevention Program. Within this guidance is a model Prevention Program that employers may use as a template to comply with the new mandate.
The emergency regulations provide separate rules for employers should they experience an outbreak or a major outbreak.
An “outbreak” is defined as three or more positive cases at an exposed workplace within a 14-day period. If an employer experiences an outbreak, they must, in addition to the Prevention Program, immediately provide no-cost testing to all employees in the exposed workplace, contact their local health department within 48 hours of discovering the outbreak and investigate workplace hazards that may have contributed to the outbreak.
Additional requirements are spelled out when there is a “major outbreak,” defined as 20 or more positive cases in a 30-day period.
More details on the requirements for dealing with a major outbreak, employer-provided transportation and housing appears in the CalChamber update story.
Cal/OSHA will be holding an advisory committee meeting this month to discuss changes to the regulation’s text or the Frequently Asked Questions document.
The Cal/OSHA Standards Board is expected to hear testimony about the regulations during its March meeting.
At the December stakeholder meeting, Cal/OSHA specifically asked employers to provide feedback about difficulties they have had complying with the regulations’ testing requirements. All employers struggling to locate sufficient testing supplies, or unable to find medical facilities where their employees can get prompt testing to comply with the regulation, should document their situations and forward that information to email@example.com.
The CalChamber will continue to provide updates on developments on COVID-19 regulation here.
Robert Moutrie, Policy Advocate, CalChamber and Matthew J. Roberts, Employment Law Counsel/Subject Matter Expert
Visit the CalChamber Coronavirus (COVID-19) webpage for more COVID-19-related federal, state and local resources, including CalChamber coverage.