California’s Division of Occupational Safety and Health, better known as “Cal/OSHA,” recently issued new emergency temporary standards to protect workers from COVID-19 (the “Emergency Temporary Standards”), which were approved by the Office of Administrative Law earlier this week. The Emergency Temporary Standards, which are now in effect, apply to virtually all California employers, employees, and places of employment, with three exceptions: (1) workplaces where there is only one employee who does not have contact with other people; (2) employees who are working remotely; and (3) employees covered by Cal/OSHA’s Aerosol Transmissible Diseases regulation.
Under the Emergency Temporary Standards, all covered employers must establish, implement, and maintain “an effective, written COVID-19 Prevention Program,” which may either be a standalone document or incorporated into employers’ preexisting Injury and Illness Prevention Programs. Among other things, the COVID-19 Prevention Program must:
- Ensure that employees know they must, without fear of reprisal, report COVID-19 symptoms, possible exposures and/or possible COVID-19 hazards in the workplace;
- Communicate to employees about the employer’s COVID-19 prevention procedures and available testing resources;
- Identify, evaluate, and correct COVID-19 hazards;
- Establish physical distancing, face covering protocols, and other controls or equipment to reduce transmission risk;
- Develop procedures to investigate and respond to COVID-19 cases, including an effective employee screening process;
- Provide COVID-19 training;
- Provide testing to employees who are exposed to COVID-19, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas;
- Require the exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk; and
- Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and local health departments, as required.
Paradoxically (given the purported goal of preventing exposure in the workplace and further spread of this deadly virus), and in contrast to guidance from both the EEOC and California Department of Fair Employment and Housing, the Emergency Temporary Standards provide that “[a] negative COVID-19 test shall not be required for an employee to return to work” following infection or exposure.
In addition, the Emergency Temporary Standards direct employers to “continue to maintain … [the] earnings, seniority, and all other employee rights and benefits” of any employee who has to be excluded from work due to actual COVID-19 infection or potential COVID-19 exposure in the workplace, if the employee is “otherwise able and available to work.” The Emergency Temporary Standards provide that the obligation to maintain earnings and benefits does not apply to any period when an employee is unable to work “for reasons other than protecting persons at the workplace from possible COVID-19 transmission” or if the employer can demonstrate that the COVID-19 exposure is not work related. Further, employers are permitted to use “employer-provided employee sick leave … and consider benefit payments from public sources in determining how to maintain earnings…, where permitted by law and when not covered by workers’ compensation.”
Given that the Emergency Temporary Standards take effect immediately, employers with any employees in California may wish to contact counsel to assist them in developing a compliant COVID-19 Prevention Program.