As we head into the new year, California continues to see a surge in the number of COVID-19 infections, and some employers are starting to experience their first positive cases at the workplace.
In response to the ongoing pandemic, Cal/OSHA adopted emergency regulations with the goal of preventing infections and responding to cases and outbreaks in the workplace.
The regulations went into effect on November 30, apply to all employers with employees working outside the home (except health care employers covered by the Aerosol Transmissible Diseases standard), and are immediately enforceable.
As discussed below, the regulations are separated in to five compliance categories: COVID-19 Prevention Program; Outbreaks; Major Outbreaks; Employer-Provided Housing; and Employer-Provided Transportation.
COVID-19 Prevention Program
The prevention effort’s centerpiece is the COVID-19 Prevention Program (Prevention Program). Though employers were already required to include COVID-19 elements in their Injury and Illness Prevention Program pursuant to prior guidance documents from Cal/OSHA, 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. For example, employers must create a system of communicating COVID-19-related information that includes, but is not limited to, how an employee may report COVID-19 symptoms, exposures and hazards without fear of reprisal; how the employer addresses COVID-19 hazards in the workplace; reasonable accommodations for employees with elevated risk factors for COVID-19; and cleaning and disinfection protocols.
Some key components of the Prevention Program deserve special attention, primarily concerning COVID-19 exposures in the workplace. 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.
First, the employer must determine what areas are now considered an “exposed workplace” pursuant to the regulation, which roughly means any work area the infected employee used or accessed. Notably, Cal/OSHA doesn’t expect employers to include areas where masked workers momentarily pass through the same space without interacting as part of an “exposed workplace,” so employers may focus on areas where transmission is more likely, according to Cal/OSHA’s most recent Frequently Asked Questions page.
Once the employer has determined the exposed workplace, it must determine whether the infected employee had close contact with any other employee during the “high-risk period,” which is calculated in two ways:
- If the infected employee developed symptoms, the high-risk period is two days before symptoms developed until 10 days after the symptoms appeared—as long as the employee has been fever-free for 24 hours without use of fever-reducing medication, and other symptoms have improved.
- If the infected employee never developed symptoms, the high-risk period is two days before until 10 days after the initial specimen collection for the employee’s first positive test.
“Close contact” means the infected employee was within six feet of another employee for a cumulative 15 minutes during any 24-hour period. Whether the employees were wearing face coverings doesn’t change this definition.
Once an employer has determined whether any close contact with the infected employee occurred during the high-risk period, the employer must do the following:
- Notify all employees who may have had an exposure and their authorized representatives within one business day without revealing the infecting employee’s personal information;
- Offer no-cost testing during work hours to all exposed employees;
- Prevent the exposed employees from returning to the worksite until the return-to-work criteria has been satisfied (usually a 10-day isolation, pursuant to recent CDPH guidance) and continue their salary and benefits while the exposed employees remain away from the worksite;
- Investigate the outbreak and determine whether any protocol changes need to be made; and
- Record and report COVID-19 cases as appropriate.
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.
Outbreaks and Major Outbreaks
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, do the following:
- Immediately provide no-cost testing to all employees in the exposed workplace and repeat testing again one week later. Employers must continue testing weekly after that until there are zero cases in the workplace for a 14-day period.
- Employers must contact their local health department within 48 hours of discovering the outbreak.
- Employers must investigate workplace hazards that may have contributed to the outbreak and make any modifications or corrections to their Prevention Program accordingly.
- A “major outbreak” is defined as 20 or more positive cases in a 30-day period. If an employer experiences a major outbreak, the employer must, in addition to the Prevention Program, do the following:
- Immediately provide no-cost testing to all employees in the exposed workplace twice weekly until there are zero cases in the workplace for a 14-day period.
- Implement ventilation changes to the worksite’s mechanical ventilation systems including using at least a MERV-13 filter or the highest efficiency compatible with the system.
- Evaluate whether portable HEPA air filtration units are needed due to poor ventilation.
- Determine the need for a respiratory protection program or changes to an existing program.
- Consider whether to halt all or part of operations.
Employer-Provided Transportation and Housing
When supplying transportation or housing to workers, employers must meet additional and specific COVID-19 safety protocols, such as providing face coverings, symptom screenings, physical distancing measures, testing availability for exposures, and frequent cleaning and disinfecting of the vehicle and housing. Employers must prioritize assigning vehicles and housing as follows:
- Group employees together that reside in the same household outside of work.
- Group employees who work in the same crew or worksite.
- Group all other employees only if there are no other transportation or housing alternatives available.
Issues for Employers
On December 18, CalChamber and other business groups presented a number of concerns to Cal/OSHA during a virtual stakeholder meeting to voice concerns about these new regulations. More than 1,000 interested groups joined the meeting. CalChamber’s most significant concerns are detailed in a letter that can be found here.
Specifically, CalChamber is asking Cal/OSHA to delay enforcement of these new mandates until January 15, 2021 because employers were given no advance notice on what was required or them and many are struggling just to become familiar with compliance.
CalChamber has identified a number of areas that need to be reviewed and offered suggestions for improvement to the new requirements. Specifically, CalChamber has requested 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 earning;”
- Clarify triggering of outbreaks by workers/non-workers;
- Address CCPA Application to the emergency standard;
- Clarify requirement to provide testing during “working hours.”
Cal/OSHA will be holding an advisory committee meeting in January to discuss changes to the regulation’s text or to the present Frequently Asked Question document. Cal/OSHA has also promised to release additional FAQ documents in the next few weeks to address ambiguities surrounding some of the most burdensome portions of the regulation, including: (1) employers’ obligation to “maintain” an employee’s “earnings” while they are excluded from the workplace because of potential COVID-19 exposure; (2) the regulation’s notice requirements and their consistency with last year’s AB 685’s similar notice requirements; and (3) the definition of an “exposed workplace” which employers will need to identify when a case is identified in the workplace. After that, the Cal/OSHA Standards Board is expected to hear testimony about the regulations during the March Standards Board meeting.
Notably, during last Friday’s stakeholder meeting, Cal/OSHA specifically requested employers to provide feedback regarding difficulties they have had with complying with the regulations’ testing requirements. So 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 firstname.lastname@example.org.
CalChamber will continue to provide updates on developments on COVID-19 regulation here.
Staff Contacts: Robert Moutrie and Matthew Roberts