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UPDATED: Employers Beware: Sweeping Cal/OSHA COVID-19 Emergency Temporary Standard Is Now in Effect

Brownstein Client Alert, December 7, 2020 (Updated December 15, 2020)

Update:

Cal/OSHA Advisory Meeting Scheduled: The promised Cal/OSHA advisory meeting regarding the recently issued Emergency Temporary Standards (ETS) has been scheduled for Dec. 18, 2020, from 12 p.m. to 5 p.m PT. Stakeholders can join the meeting via Zoom using the login credentials found here.

Cal/OSHA ETS Modified by Executive Order: In addition, on Dec. 14, 2020, Gov. Gavin Newsom issued Executive Order N-84-20 to bring the ETS in line with evolving public health guidance. Specifically, the order, in relevant part, suspends the ETS’s workplace exclusion and return-to-work requirements if they exceed the longer of any applicable quarantine or isolation period recommended by the California Department of Public Health (CDPH) or a local health officer who has jurisdiction over the workplace. The same day, the CDPH updated its quarantine guidance to permit asymptomatic close contacts to discontinue quarantine after 10 days from the date of last exposure. The CDPH guidance also permits asymptomatic health care workers and certain emergency response and social service workers to return to work seven days after their last exposure provided they received a negative PCR test result.

Original alert:

This is a fairly lengthy article due to the scope and detail of the COVID-19 Emergency Temporary Standard (“ETS”). To skip ahead to our recommendations for steps employers should consider now, click here. The enforcement aspects of the ETS will be discussed in a future article.

On Nov. 30, 2020, the Office of Administrative Law (OAL) approved the ETS, making it effective immediately. The ETS—consisting of five new sections to title 8 of the California Code of Regulations (Sections 3205 - 3205.4)—includes stringent mandates regarding written COVID-19 safety plans, notice regarding potential exposure, testing mandates, paid leave, employer-provided housing and transportation and more.

The ETS will expire in 180 days (May 29, 2021), but Cal/OSHA is expected to move to make it permanent. That means employers must be prepared for potentially long-term enforcement of the onerous requirements of the ETS.

As employers are forced to rapidly implement these expansive new requirements, Cal/OSHA has issued a set of Frequently Asked Questions (FAQs) aimed at clarifying various ambiguities. In the weeks and months to come, Cal/OSHA intends to supplement the FAQs, develop training, assemble an advisory committee, and hold a stakeholder meeting (planned for December) to “explain the rule, answer questions and give interested parties an opportunity to provide feedback on the rule.” For now, the FAQs offer employers a small and qualified measure of comfort with respect to immediate enforcement of the ETS: “As employers implement the new standards in the ETS, Cal/OSHA enforcement personnel will consider an employer’s good faith efforts in working towards compliance, but some aspects, such as eliminating hazards and implementing testing requirements during an outbreak, are essential.” The qualifier in Cal/OSHA’s statement is a reminder that Cal/OSHA expects immediate compliance with certain safety aspects of the ETS. Employers are cautioned to act quickly, work with counsel and strive to be fully compliant with the ETS as soon as possible.

Key components of the ETS include the following:

Covered Employees. The ETS covers all employees and places of employment, except

Places of employment with one employee who does not have contact with other individuals;
Employees working from home; and
Employees already covered by Cal/OSHA’s aerosol transmission standard, which generally includes health care facilities, services and operations. (Guidance on aerosol transmission standards can be found here.)

Written COVID-19 Prevention Program. Employers are required to have a written COVID-19 Prevention Program (“CPP”) that can be incorporated into their existing Injury and Illness Prevention Program (“IIPP”) or can be a standalone document. Cal/OSHA has published a model CPP to be used by employers as a reference tool. Employers with existing written COVID-19 safety plans should review and update those plans as needed to ensure compliance with the CPP. Generally, employers must include and implement the following components in connection with the CPP:

System for communicating. This component includes asking employees to report COVID-19 test results and exposure, informing employees about COVID-19 hazards, policies and procedures (including available accommodations for employees who are at greater risk for severe illness), and providing information about testing.
Identification and evaluation of COVID-19 hazards. This requires implementing a COVID-19 screening process, as well as evaluating methods to improve air quality in indoor spaces. Employers must allow employees and authorized representatives (such as union reps) to participate in the identification and evaluation of COVID-19 hazards.
Investigating and responding to COVID-19 Cases in the workplace. Employers must have an effective procedure to investigate COVID-19 Cases (as defined below) in the workplace, including verifying COVID-19 Case status, receiving information regarding test results/onset of symptoms, conducting contact tracing, notifying affected employees (discussed below), and providing no-cost testing to employees during work hours (also discussed below). A “COVID-19 Case” is defined as a person who has tested positive for COVID-19, has an order to isolate from public health authorities, or has died due to COVID-19.
Training and instruction. The required training and instruction incorporates a number of topics, including the employer’s COVID-19 policies, benefits to which employees may be entitled to under federal, state and local law, social distancing and face covering requirements, and COVID-19 symptoms and infection.
Social distancing. Employers must take steps to ensure six feet of separation between employees, and must implement social distancing protocols such as staggering shifts/breaks. Employers also must install solid partitions at fixed work locations where it is not possible to maintain physical distancing.
Face coverings. Employers are required to provide face coverings to employees, with limited exceptions.
Other engineering controls, administrative controls and personal protective equipment. These requirements include implementing cleaning procedures, maximizing outside air flow, prohibiting the sharing of items (such as equipment) between employees to the extent feasible and evaluating the need for additional protective gear, such as respiratory protection, goggles and face shields.
Reporting, recordkeeping and access. Employers are required to report COVID-19 Cases to their local health department when required by law and as provided by the ETS (discussed below). Employers also are required to track all COVID-19 Cases within the workplace and make this information (excluding confidential medical information) available to employees.
Exclusion of COVID-19 Cases and those with COVID-19 Exposure. Employers must exclude individuals who meet the definition of “COVID-19 Cases” and “COVID-19 Exposure” (as defined below) from the workplace until they are no longer an infection risk, as detailed further below.
Return to work criteria. Employers must follow the return to work criteria discussed below in permitting excluded employees to return to work.

Notice of Potential COVID-19 Exposure and Cases. Within one business day, employers are required to give notice to: (1) all employees who may have had COVID-19 Exposure (defined as being within six feet of a COVID-19 Case for a total of 15 minutes or more in a 24-hour period during the individual’s infectious period) and their authorized representatives, and (2) independent contractors and employees of third parties who were present during the high-risk exposure period (defined as 48 hours before onset of symptoms or specimen for the positive test).

Notably, the ETS does not require that the notice be in writing. However, Assembly Bill (AB) 685 , which goes into effect on Jan. 1, 2021, and includes similar notice requirements for individuals who may have been exposed to COVID-19 at the workplace, does require written notice. AB 685 also requires that written notice be given to employers of subcontracted employees.

Under the ETS, employers who knew or should have known of three or more COVID-19 Cases in the workplace are required to notify their local health department within 48 hours. While the ETS does not indicate the time frame in which the three or more COVID-19 Cases had to occur to trigger the reporting requirement, the Cal/OSHA FAQs clarify that the three or more cases must be within a 14-day period. At present, this is consistent with AB 685, which requires employers to notify their local health department within 48 hours of a COVID-19 “outbreak,” as defined by the State Department of Public Health (DPH), currently defined as three or more cases within a 14-day period. However, the ETS requires employers to report more information than is required under AB 685, including hospitalization and/or fatality status of COVID-19 Cases.

Employer-Provided COVID-19 Testing. The ETS mandates a three-tiered testing system based on the number of COVID-19 Cases in the workplace. Notably, the testing mandate uses straight numbers rather than percentages, and does not take into account the size of the workforce in determining whether an outbreak has occurred, thereby triggering the testing requirements. Thus, the testing requirements are triggered for larger employers by an exponentially smaller percentage of COVID-19 Cases (e.g., an employer with five employees and one with 500 employees are subject to the same standard). Employers of all sizes must comply with the following three-tier system:

One or more COVID-19 Cases. Employers are required to provide free testing during working hours to all employees with potential COVID-19 Exposure in the workplace.
Three or more COVID-19 Cases in an “exposed workplace” within a 14-day period or when identified as an outbreak by the local health department. All employees in the “exposed workplace” (defined as any work location used or accessed by a COVID-19 Case during the high-risk period) are required to be tested immediately, again one week later, and continuing thereafter until there is no longer an “outbreak,” with testing provided for free during working hours. According to the FAQs, “[w]hen determining which areas constitute a single ‘exposed workplace’ for purposes of enforcing testing requirements, Cal/OSHA does not expect employers to treat areas where masked workers momentarily pass through the same space without interacting or congregating as an ‘exposed workplace,’ so they may focus on locations where transmission is more likely.”
20 or more COVID-19 Cases within a 30-day period. The same requirements as above apply, except that employees must be tested at least twice per week. In addition, employers are required to implement ventilation changes, determine whether a respiratory protection program is needed and consider the need to cease operations to control the spread of the virus.

Paid Time Off. Employees who are excluded from the workplace (discussed below) and are otherwise able and available to work must continue to be paid during the period of exclusion. Specifically, the ETS provides that employers must “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status.” The FAQs echo the requirement that excluded employees who are able and available to work must receive their “pay and benefits.” There is no proscription in the ETS requiring employees to telework if their jobs permit remote work. For those who cannot work remotely, the FAQs indicate that employers are permitted to require employees to “exhaust paid sick leave benefits before providing exclusion pay.” Presumably, this includes paid sick leave required under California’s COVID-19 Supplemental Paid Sick Leave law and the Families First Coronavirus Response Act (FFCRA), as well as general state and local paid sick leave laws and employer-provided paid sick leave. The FAQs also give employers the option of offsetting payments to the employee by the amount an employee receives in “other benefit payments.” The FAQs, however, do not clarify which benefits would qualify for an offset, or how employers can verify the payment of such benefits and apply the permitted offset.

Two exceptions apply to the requirement that the exclusion period be paid: (1) the employee is unable to work for reasons other than protecting persons at the workplace from COVID-19 transmission; or (2) the employer demonstrates that the COVID-19 Exposure is not work-related. The FAQs do not shed any light on how an employer can demonstrate that the COVID-19 Exposure is not work-related. Until further clarified by Cal/OSHA, however, employers can look to SB 1159, the recently passed workers’ compensation legislation, which permits employers to refute the presumption that the COVID-19 Exposure was work-related with, among other things, evidence of measures in the workplace implemented to reduce potential COVID-19 transmission, the employee’s non-occupational risks of COVID-19 infection and other pertinent factors.

The paid leave requirement is significant, burdensome and hotly disputed, particularly because the ETS does not limit the paid time off requirement to a one-time occurrence or a finite amount of time. The FAQs have thus far not offered any clarification on this issue.

COVID-19 Exclusion and Return-to-Work Criteria. The ETS has been critiqued for failing to have a mechanism to allow evolution in light of the changing guidance issued by state and federal agencies and public health authorities. The critiques are valid; just two days out, the ETS already is inconsistent with recent Centers for Disease Control and Prevention (CDC) guidelines allowing for reduced quarantine periods after possible exposure to COVID-19 (10 or seven days, depending on test results and symptoms).

Notwithstanding CDC’s evolving guidance, California employers must abide by the following requirements in excluding employees from the workplace:

Employees who had COVID-19 Exposure are required to be excluded from the workplace for 14 days after the last known COVID-19 Exposure. Unlike CDC guidelines or the revised “COVID-19 Employer Playbook” issued on Sept. 25, 2020, by the California Department of Public Health , the ETS makes no exceptions that would allow critical infrastructure employees to return to work sooner. The FAQs are also silent on this issue.
COVID-19 Cases are excluded from the workplace until they have satisfied the return to work criteria (discussed below).

Employees are permitted to return to work only when the criteria of one of the return-to-work categories below has been met. Importantly, the ETS does not permit employers to require a negative COVID-19 test as a condition to return to work.

COVID-19 Cases with COVID-19 symptoms. Employees cannot 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.
COVID-19 Cases who tested positive but never developed COVID-19 symptoms. Employees cannot return to work until a minimum of 10 days has passed since the date of specimen collection of their first positive COVID-19 test.
Employees subject to isolate or quarantine orders. Employees cannot return to work until either the period of isolation or quarantine is lifted or, if no period is specified, then the period will be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.

Employer-Provided Housing and Transportation. The ETS includes specific rules for employers who provide housing and/or transportation to employees.

Housing requirements include ensuring sufficient space in housing units to permit social distancing between residents, daily employer-provided cleaning and disinfection of common areas, and prioritizing shared-housing assignments based on the individual’s family status and crew or shift assignment. Employers also are required to isolate residents exposed to COVID-19 from all other occupants, and provide exposed individuals with a private bathroom, sleeping area and cooking and eating facility. Residents who are identified as COVID-19 Cases may be housed with one another.

Employer-provided transportation includes transportation to and from work that is provided, arranged or secured by the employer, including ride-share vans or shuttle vehicles, carpools, and private charter buses, regardless of the travel distance or duration involved. Employees using employer-provided transportation must be screened before boarding, sit at least three feet apart, and wear face coverings during transportation.

Recommendations for Employers. Employers should take immediate steps to comply with the ETS, in conjunction with legal counsel. Key steps include, among other things:

Reviewing existing COVID-19 safety plans to ensure compliance with the requirements of the CPP;
Considering whether the employer can modify the work facility to create separate work areas so as to minimize the size of the “exposed workplace” in the event of a COVID-19 Case (for instance, isolating different work areas such as office workers and production crew, or different units within a manufacturing facility, and restricting access to designated workers, taking into account common areas such as clock-in/clock-out areas, restroom facilities, locker rooms and break areas);
Implementing a process for investigating whether potential COVID-19 Exposure is work-related (see our prior client alert on this topic here);
Creating a tracking system to enable the employer to determine if a reportable “outbreak” has occurred (i.e., three or more cases within a 14-day period) and, if so, to take appropriate steps;
Ensuring that contact-tracing protocols are in place to identify potential workplace exposure and provide timely notice to affected individuals;
Contracting with a testing company or making other advance arrangements to ensure that if mass testing of employees is required, it can be accomplished in a timely manner from a logistical standpoint, particularly in the event of a shortage of testing kits;
Updating paid leave policies and implementing measures to track the various types of leave available in any given circumstance, as well as the interplay between those leaves, including “order of preference” (e.g., FFCRA leave should be exhausted first if applicable, due to the availability of a payroll tax credit with proper documentation (see our prior client alert on this topic here.)); and
Establishing a dialogue and good relationship with local public health agency representatives.

The ETS is new and is likely to evolve, for instance, in response to the December stakeholder meeting and future advisory committee meetings. Employers are encouraged to keep abreast of these changes and work with counsel to ensure their continued compliance with these complicated and detailed requirements.