** UPDATE ** Dec. 18, 2020 — Rules are changing rapidly – see also this post on changes to quarantine limits.
** UPDATE ** Dec. 14, 2020 — Listen to Michelle Freeman’s podcast on this subject here.
** UPDATE ** Dec. 2, 2020 — As we previously reported (below), on Nov. 19, Cal/OSHA approved new safety regulations targeted to reduce COVID-19 infection rates in the workplace. On Monday, Dec. 1, these regulations went into effect following approval by the Office of Administrative Law. The regulations will now appear in the California Code of Regulations, Title 8, sections 3205 – 3205.4.
An immediate review of your company’s COVID-19 procedures is necessary to ensure compliance with the new rules.
Our previous post outlining the new regulations is below.
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Nov. 24, 2020 – The board that oversees the California Department of Industrial Relations, Division of Occupational Safety and Health (Cal/OSHA) voted unanimously last week to advance new safety regulations targeted to reduce COVID-19 infection rates in the workplace. These regulations are set to take effect pending a review and comment period.
Many employers have already created policies and implemented procedures that adhere to the new regulations. Still, you should carefully review your existing policies and practices in light of these new guidelines, to determine if any additional changes are needed.
Employees Excluded From the Workplace Are Still Entitled to Pay
Employers are required to exclude all COVID-19 cases from the workplace until certain return to work requirements are met, as well as COVID-19 exposures for a 14-day quarantine period.
A COVID-19 case refers to any individual who:
- has a positive COVID-19 test;
- is subject to an order to isolate issued by a local or state health official; or
- has died due to COVID-19.
A COVID-19 exposure refers to any person who was within six feet of a COVID-19 case for a cumulative total of 15 minutes or more during any 24-hour period.
If an employee is excluded from the workplace, the employer must continue an employee’s earnings, seniority, and all other rights and benefits. Employers are permitted to use employer-provided sick leave benefits and may “consider benefits payments from public sources in determining how to maintain earnings.” If an employer can prove that an employee’s exposure is not work-related, they are not required to continue an employee’s earnings.
Written COVID-19 Prevention Program
All employers must create a written COVID-19 Prevention Program, which may be integrated into the employer’s injury and illness prevention program, or maintained as a separate document. A COVID-19 Prevention Program must include a form that communicates specific COVID-19 information to employees, and identifies and evaluates COVID-19 hazards.
Specifically, the COVID-19 information form must include:
- A request that employees report, without fear of reprisal, COVID-19 symptoms, possible COVID-19 exposures, and potential COVID-19 hazards in the workplace
- The policies and procedures for accommodating employees with medical conditions or other conditions putting them at increased risk for COVID-19
- Directions about access to COVID-19 testing. If an employee must be tested as a result of workplace exposure, the employer must inform affected employees about the possible consequences of a positive test
- Additional information concerning COVID-19 hazards and employer’s policies and practices
With respect to identifying and evaluating COVID-19 hazards, employers must also:
- Allow employees to participate in the identification and evaluation of COVID-19 hazards
- Implement a procedure for screening employees for COVID-19 and responding to employees with COVID-19 symptoms
- Develop policies and procedures regarding how to handle a COVID-19 case in the workplace
- Conduct work-specific identification of all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19
- Evaluate how to maximize the quantity of outdoor air and whether it is possible to increase filtration efficiency to the highest level compatible with existing ventilation system
- Review state and local guidance regarding COVID-19 hazards and prevention
- Evaluate existing COVID-19 prevention controls and determine if there is a need for different or additional controls
- Conduct periodic inspections of the workplace to identify potential COVID-19 hazards and ensure compliance with employer’s COVID-19 policies and procedures
Procedures to Investigate COVID-19 Cases in the Workplace
Employers must create and implement a procedure for investigation of, and responding to, COVID-19 cases in the workplace. If an employee in the workplace tests positive for the virus, an employer must perform contact tracing and provide notice to exposed employees within one business day. Employers are prohibited for revealing any personal identifying information of a COVID-19 case to other employees.
If an employee is exposed to COVID-19 in the workplace, an employer must provide COVID-19 testing, COVID-19 benefit information, and advise the employee they are entitled to pay during the 14-day quarantine period.
Training and Instruction to All Employees
Employers will be required to provide employees with extensive training on a number of COVID-19-related topics, including:
- The employer’s COVID-19 policies and procedures
- Information regarding COVID-19 related benefits (i.e., FFCRA, sick pay, workers’ compensation)
- Transmission education, including that COVID-19 is an infectious disease that can be transmitted through the air or coming into contact with contaminated objects, and that infectious persons may have no symptoms
- Methods of social distancing and the importance of combining social distancing with wearing face coverings
- That particles containing the virus can travel more than six feet, and therefore, social distancing must be combined with other controls like face coverings and hand hygiene
- Importance of frequent handwashing with soap and water for at least 20 seconds, or using hand sanitizer when an employee does not have immediate access to a sink
- Proper use of face coverings
- COVID-19 symptoms
- The importance of not coming to work if an employee is experiencing symptoms
Social Distancing, Face Coverings, and Cleaning and Disinfecting Requirements
Employers must ensure that all employees are separated by at least six feet, unless the employer can demonstrate that six feet of separation is not possible. At fixed workstations where social distancing is not possible, employers must install cleanable solid partitions.
Employers must provide face coverings and ensure they are worn properly. There are narrow exceptions to this rule, including when an employee is alone in a room, or is eating or drinking in the workplace, or cannot wear a face covering due to a medical or mental health condition or disability, or is hearing-impaired or communicating with a hearing-impaired person.
Employers must implement cleaning and disinfecting procedures, which include regular cleaning of frequently touched surfaces, and prohibiting sharing of PPE and other items employees come into frequent physical contact with (i.e., desks, keyboards, tools, etc.).
Reporting and Record Keeping
Employers are expected to report any workplace COVID-19 case to the local health department as required by law. In addition, employers must report any COVID-19-related serious illness or death that arises from employment to Cal-OSHA.
In addition to making a written COVID-19 Prevention Program available to employees, an employer is required to keep a record of all COVID-19 cases. This information must be made available to employees, with all personal identifying information removed.
Although these new rules will not have the full force of law until after the comment period (likely a few months), employers should review their COVID-19 plans sooner, rather than later, to ensure these new guidelines are incorporated.
We will continue to monitor developments closely and will keep you informed.
For more information, please contact the Hirschfeld Kraemer lawyer who normally provides your legal counsel, or you can reach out to Michelle Freeman in the San Francisco office, firstname.lastname@example.org, or (415) 835-9003.