Written by Jeremy Mittman and Thea Rogers

On November 30, 2020, Cal-OSHA’s proposed temporary emergency COVID-19 safety regulations were approved, and went into effect (currently through October 2, 2021).   Helpful FAQ’s have also been published, with more on their way. 

Broad Application to Employers

These temporary regulations are applicable to all employers and places of employment in California, with the following exceptions: (1) those places of employment with one employee who does not have contact with others; (2) employees working from home; and (3) employees covered by Cal-OSHA’s Aerosol Transmissible Disease standard (which covers hospitals, long term healthcare facilities and hospices, medical transport, etc.).

Written Policies Required

Pursuant to the regulations, employers are now required to maintain a written COVID-19 training program, as well as a written COVID-19 prevention program with detailed requirements, (which can be incorporated into the employer’s existing Illness and Injury Prevention Program).  Such requirements include such concepts as:

• identification and evaluation of COVID-19 hazards
• a system for communicating employee reports of COVID-19 symptoms and exposure without fear of reprisal
• training to employees on COVID-19 including face covering, personal hygiene and the importance of isolating when possibly infected,
• providing clean and undamaged face coverings to employees and ensuring, with limited exceptions for medical issues, that employees wear them properly over the nose and mouth when indoors (and when outdoors and less than six feet away from another person).

Helpfully, Cal/OSHA has posted a Model COVID-19 Prevention Plan on its website for employers to use.

Mandatory Testing of Employees For Outbreaks

If a place of employment has been identified by a local health department as the location of a COVID-19 outbreak or that has had three or more COVID-19 cases reported in the workplace within a 14-day period, the employer is now required to (1) provide COVID-19 testing to exposed employees at no cost to those employees; (2) exclude COVID-19 infected employees from the workplace; (3) investigate and determine workplace-related factors contributing to the COVID-19 infections; (4) review their COVID-19 policies and procedures and implement changes to prevent further spread in the workplace; and (5) notify the local health department. 

Additionally, if a workplace has had a major outbreak  (i.e. 20 or more COVID-19 cases reported in an exposed workplace within a 30-day period), the employer is required to: (1) provide COVID-19 testing at no cost to the employee at least twice a week (or more frequently if recommended by the local health department); (2) correct COVID-19 hazards; and (3) comply with the requirements for multiple COVID-19 infections and outbreaks reported in the workplace, items (1) – (5) outlined directly above.

Mandatory Pay for Employees Exposed to COVID-19. 

In what would seem to be an overreach for Cal-OSHA, the regulations also state that for employees who have been “excluded from work” because they have been exposed to COVID-19, but who are “otherwise able and available to work,” an employer 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, as if the employee had not been removed from their job.”  In other words, employers must provide paid time off to employees until they are ready to return to work, even if they do not have any accrued and available paid leave left. 

Fortunately, at least, the FAQ’s clarify that “An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments” and also that “these obligations do not apply if an employer establishes the employee’s exposure was not work-related.”   No doubt many employers will have questions (and concerns) about this surprising new obligation, and it is quite likely that additional guidance will be forthcoming on this topic in the near future.

Guidance on When Employees Can Return to Work.

As to when employees who have contracted or have been exposed to COVID-19 may return to work, the regulations make a distinction between employees who have COVID-19 symptoms, and those who have tested positive but who are asymptomatic. 

For those with symptoms, an employee may return to work when all of the following have been satisfied: (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) their symptoms have improved and (3) at least 10- days have passed since their symptoms first appeared.

For those employees who tested positive without symptoms, such employees cannot return “until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.” 

Notably, employers can no longer require that the employee produce evidence of a COVID-19 test before returning to work.  The reasoning behind this prohibition is that an individual’s test could indicate that they are still COVID-19 positive, even long after they are infectious to others. 

Conclusion

Employers should familiarize themselves with these new regulations, and ensure that their policies and procedures are in compliance, as the failure to do so may expose the employer to citations from Cal/OSHA.