Publication

As of November 30, 2020, California employers are required to have a written COVID-19 Prevention Plan. Title 8, Division 1, Chapter 4, §§3205-3205.4. 

Overview:  Effective November 30, 2020 employers with more than one employee must comply with new Cal OSHA Emergency Temporary Standards ("ETS") when employees are at the workplace and not when they are working from home, regarding COVID-19 prevention, exclusion of COVID-19 cases from the workplace, return to work, outbreaks, and housing and transportation. The ETS does not apply to employees of Aerosol Transmissible Diseases facilities if they are identified in the employer’s Aerosol Transmissible Diseases Exposure Control Plan.

Department of Industrial Relations Guidance:  The Department of Industrial Relations ("DIR") has published a FAQ, advise they will be updating it regularly, indicate that stakeholders will meet in December to answer questions and accept feedback, and an advisory committee should report the results ”within four months”.  The FAQ can be found here. 

Action Plan:  By now, most employers are already complying with many of the requirements of the ETS.  Employers need to ensure their COVID-19 policies and procedures are formalized in writing and follow the specific directives of the ETS.  Below, we outline the most important requirements of the ETS and include the definitions that apply to each section of the required COVID-19 Prevention Program for ease of understanding.  This guidance is intended to be as specific as possible and simple to understand, though for the precise wording of the standards, please refer to the ETS directly, which can be found here.

Next Steps:  Cal OSHA has posted a Model COVID-19 Prevention Plan.  Because of the nuances of the ETS, and ambiguity in some of the standards required, we recommend you consult with trusted employment counsel in the preparation and execution of the required plan.

COVID-19 PREVENTION PROGRAM

In California every employer has an existing legal obligation to provide and maintain a safe and healthful workplace for employees and must have a written, effective Injury and Illness Prevention Program ("IIPP").  The ETS builds on this by requiring every employer develop a written COVID-19 Prevention Program ("CPP") that can be a stand-alone program, or included in their existing IIPP. Since this program is hopefully temporary, we recommend creating a stand-alone program that can be discontinued when no longer necessary.

The ETS identifies 11 sections that must be included in the CPP.  Pay particular attention to Section 10 which discusses quarantine requirements and the requirement to pay employees when excluded from work due to COVID-19.

1. Employee Communication

“COVID-19 symptoms” means fever of 100.4 degrees Fahrenheit or higher, chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea, unless a licensed health care professional determines the person’s symptoms were caused by a known condition other than COVID-19.

1. Inform employees they must report symptoms, exposures and hazards and should not fear reprisal.
2. Outline procedures for accommodating high-risk employees.
3. Advise about COVID-19 testing, when testing is required, and the consequences of a positive test.
4. Provide notice to all employees, other employers, persons and entities in contact with the workplace regarding hazards, COVID-19 policies and procedures and COVID-19 cases.
   Note: Personal identifying information of positive or symptomatic individuals must be kept confidential.

2. COVID-19 Hazards

“COVID-19 hazard” means exposure to potentially infectious material that may contain SARS-CoV-2, the virus that causes COVID-19 including: airborne droplets, small particle aerosols, and airborne droplet nuclei, which most commonly result from a person or persons exhaling, talking or vocalizing, coughing, sneezing, or procedures performed on persons which may aerosolize saliva or respiratory tract fluids, among other things. This also includes objects or surfaces that may be contaminated with SARS-CoV-2.

1. Employees and employee representatives (such as union stewards and attorneys) must be permitted, but are not required, to participate in hazard identification and evaluation.
2. The employer must have a COVID-19 symptom screening process that is done by self-report before work or at the workplace, provided screeners and employees wear face coverings during non-contact thermometer temperature checks.
3. The employer must be ready to respond immediately to notification of symptomatic or positive individuals;
4. The employer must assess the workplace for COVID-19 hazards and assume all persons are potentially infectious.
   • Identify all places where people congregate, not just work areas.
   • Evaluate all persons with whom employees interact including members of the public customers and independent contractors.
5. Maximize outdoor airflow and filtration efficiency for indoor spaces.
6. Become familiar with industry specific guidance issued by the State of California and the California Department of Public Health.
7. Evaluate existing COVID-19 prevention to ensure compliance with ETS’s requirements on physical distancing, face coverings and cleaning/disinfecting.
8. Conduct periodic inspections to identify needed changes to comply with the ETS.  

3. Investigating COVID-19 Cases in the Workplace

“COVID-19 case” means a person who:

• Has a positive “COVID-19 test” as defined in this section;
• Is subject to a COVID-19-related order to isolate issued by a local or state health official; or
• Has died due to COVID-19, in the determination of a local health department or per inclusion in the COVID-19 statistics of a county.

A person is no longer a “COVID-19 case” when a licensed health care professional or the local health department determines that the person does not have COVID-19.?

“COVID-19 exposure” means regardless of whether a face covering is worn, a person is within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the “high-risk exposure period.” 

"High-risk exposure period” means the following time period:

• For persons who develop COVID-19 symptoms: from two days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved; or
• For persons who test positive who never develop COVID-19 symptoms: from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.

1. Create a procedure to identify, verify and record COVID-19 cases, test results and symptoms.
2. If there has been a COVID-19 case take action:
   • Determine the day and time the COVID-19 case was last present and, to the extent possible, the date of the positive COVID-19 test(s) and/or diagnosis, and the date the COVID-19 case first had one or more COVID-19 symptoms, if any.
   • Perform contact tracing: evaluate the activities of the COVID-19 case and all locations at the workplace which may have been visited during the high-risk exposure period.  
   • COVID-19 cases must be excluded from the workplace (sent home) as outlined in Section 10 below.
   • Give notice of the potential COVID-19 exposure, within one business day, without personal identifying information, to (1) all employees who may have had COVID-19 exposure; (2) employee authorized representatives if any; (3) independent contractors; and (4) other employers present at the workplace during the high-risk exposure period. Note this requirement overlaps with AB 685 which is effective January 1, 2021.  Please see the firm's alert regarding this.  
   • Offer testing at no cost during working hours to employees who had exposure and provide information on paid leave benefits available to them.
     • Testing can be through the employer, local health department, a health plan, or at a community testing center.
     • The time spent testing for COVID-19 is compensable as hours worked.
     • Please note that this section only mandates the employer offer testing.  It does not require testing.  Testing is required for outbreaks only (see Sections below on “Multiple COVID-19 Infections and Outbreaks” and “Major Outbreaks”).
   • Investigate whether workplace conditions contributed to the risk of exposure and how to correct those if any are found.

• Keep personal identifying information confidential as it relates to positive results, symptoms and testing.
• Keep records confidential and do not disclose without consent, except unredacted records shall be provided to the local health department, CDPH, Cal OSHA, and NIOSH.

4. Correction of COVID-19 Hazards

Employers shall implement effective policies and procedures identifying and correcting unsafe or unhealthy conditions, work practices, policies and procedures in a timely manner based on the severity of the COVID-19 hazard to include physical distancing, face coverings and cleaning/disinfecting.

5. Training

Employers shall train employees on:

1. COVID-19 policies and procedures;
2. COVID-19 related benefits;
3. Information on COVID-19 as an infectious disease and its manner of spread;
4. Physical distancing of six feet or more;
5. The virus’ ability to travel more than six feet, especially indoors, hence the importance of adding face coverings and hand washing when indoors;
6. Frequent hand washing for 20 seconds and use of hand sanitizer when hand washing is not possible;
7. Symptoms, staying home when sick, and testing when symptomatic.

6. Physical Distancing
   1. Employees shall be separated by at least six feet unless it is not possible and except for momentary exposure;
   2. Employees shall be as far apart as possible if six feet of distance is not possible.
       
7. Face Coverings
   a. Employers shall provide clean and undamaged face coverings (not face shields alone) and require them to be worn over the nose and mouth when indoors and when outdoors if within six feet of another person except:
   • When an employee is alone in a room.
   • While eating and drinking at the workplace, provided employees are at least six feet apart and outside air supply to the area, if indoors, has been maximized to the extent possible.
   • Employees are wearing respiratory protection.
   • Employees who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person.
   • Specific tasks which cannot feasibly be performed with a face covering only when such tasks are actually being performed, and the unmasked employee is least six feet away from all other persons unless unmasked employees are tested at least twice weekly for COVID-19. See CDPH guidance for examples.

b. Employees exempted from wearing face coverings shall wear an effective non-restrictive alternative, such as a face shield with a drape on the bottom, if their condition or disability permits it.

c. Any employee not wearing any face protection shall be at least six feet apart from all other persons unless the unmasked employee is tested at least twice weekly for COVID-19. Note: Employers may not use COVID-19 testing as an alternative to face coverings when face coverings are otherwise required.

d. Unless it would create a safety hazard, employees may wear face coverings even if not required by the regulations.

e. Employers shall communicate to non-employees the face coverings requirements on their premises.

f. Minimize employee exposure to COVID-19 hazards originating from any person not wearing a face covering, including a member of the public.

8. Cleaning, Safety and PPE

1. At fixed work locations where it is not possible to maintain six feet of distance, cleanable solid partitions are required;
2. Employers shall maximize the quantity of outside air provided to the extent feasible unless opening windows or letting in outdoor air by other means would cause a hazard to employees, for instance from excessive heat or cold or poor air quality (over 100 AQI).
3. Employers shall implement cleaning and disinfecting procedures without generating additional hazard to employees, which require:
   • Regularly cleaning and disinfecting frequently touched surfaces and objects and advising employees this is done;
   • Prohibiting the sharing of personal protective equipment and shared office equipment to the extent feasible, or if not feasible, disinfect between uses by different people. Minimize sharing of vehicles and disinfect between users.
   • Cleaning and disinfection of areas, material, and equipment used by a COVID-19 case during the high-risk exposure period.
4. Employers shall evaluate handwashing facilities, determine the need for additional facilities, encourage and allow time for employee handwashing, and provide employees with an effective hand sanitizer.
5. Personal protective equipment.
   • Employers shall evaluate the need for gloves, goggles, and face shields, and provide as needed.
   • Employers shall evaluate the need for respiratory protection when six feet of distance cannot be maintained.
   • Employers shall provide and ensure use of respirators if ordered.
   • Employers shall provide and ensure use of eye protection and respiratory protection in accordance employees are exposed to procedures that may aerosolize potentially infectious material (i.e. dental procedures).

9. Reporting and Recordkeeping

1. Report to the local health department as required.
2. Report OSHA recordable “serious injury or illness” related to COVID-19 at the place of employment. (As defined by Section 330 as injury or illness which required inpatient hospitalization, amputation, the loss of an eye, or any serious degree of permanent disfigurement).
3. Keep records of the steps taken to implement the CPP for one year.  See General Industry Safety Order §3203(b) for limited exceptions.
4. Provide copies of the CPP to employees, authorized representatives and to Cal OSHA upon request.
5. Keep a confidential record COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. This record may be provided to employees and authorized representatives with personal identifying information redacted.

10. Excluding COVID-19 Cases from the Workplace

1. COVID-19 cases are excluded (sent home) from the workplace until the return to work requirements (discussed in Section 11 below) are met. Exception: an employee need not be excluded if he/she can be temporarily reassigned to work where they do not have contact with other persons until the return to work requirements have been met (unless the local health department issues an isolation order for the employee).
2. Employees with COVID-19 exposure (defined under Section 3 above) must be excluded for 14 days after the last known COVID-19 exposure to a COVID-19 case.
3. If an employee is excluded from work and otherwise able and available to work, employers shall:
   • 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 unless the employer establishes the exposure was not work-related.
     • An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay.
     • An employer may offset payments by the amount an employee receives in “other benefit payments”. The DIR does not define “other benefit payments”. The ETS says that employers may consider “benefit payments from public sources” in determining how to maintain, earnings, rights and benefits when not covered by workers’ compensation.  
       5. Note, the DIR guidance on this controversial portion of the standards references the DIR’s webpage with information on all sources of COVID-19 paid sick leave and paid family leave.
       5. Based on this, and absent further guidance, we believe that an employer may require an employee to use any available paid leave before paying an employee who is excluded (i.e. quarantined) from the workplace.
       5. While all California and federal paid sick and family leave laws have a cap on the number of paid hours/weeks an employee can receive for qualifying reasons, there does not appear to be any limitation on the number of times an employee can be excluded from the workplace under these Cal OSHA regulations.  Thus, if an employee has exhausted all available paid sick or family leave, the employer must continue to pay the employee while excluded for the period of time mandated by the ETS.
   • Exceptions to Pay Requirement:
     • If the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission.
     • If the employer demonstrates that the COVID-19 exposure is not work related.
       5. Take clear notes on any information from an employee regarding his/her contact with exposed or positive individuals who are not connected to the workplace.  
       5. We suggest employers make a determination that a COVID-19 exposure is not work related judiciously and only when based on sufficient evidence.
4. Employers may provide for greater pay and benefits protections than required by the ETS.
5. Employer shall provide employees the information on benefits available to them when they are excluded from work.

11. Return to Work Criteria

1. COVID-19 cases with COVID-19 symptoms shall not return to work until:
   • At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
   • Symptoms have improved; and
   • At least 10 days have passed since symptoms first appeared.
2. COVID-19 cases who tested positive but never developed symptoms shall not return to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.
3. A negative COVID-19 test shall not be required for an employee to return to work.
4. If a local or state health official orders an employee to isolate or quarantine, the employee shall not return to work until the period of isolation or quarantine is completed or the order is lifted. If no period was specified, then the period shall be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.
5. Cal OSHA may allow employees to return to work on the basis that the removal of an employee would create undue risk to a community’s health and safety. In such cases, the employer shall develop, implement, and maintain  effective control measures to prevent transmission in the workplace including  providing isolation for the employee at the workplace and, if isolation is not possible, the use of respiratory protection in the workplace.
    

MULTIPLE COVID-19 INFECTIONS AND OUTBREAKS

An “exposed workplace” is a work location, working area, or common area used or accessed by a COVID-19 case during the high-risk period,

If an employer has three or more COVID-19 cases in an exposed workplace within 14 days or if a local health department has identified a workplace as the site of an outbreak, then, until there are no new COVID-19 case detected for 14 days, the employer shall:

• Provide COVID-19 testing at no cost during employee working hours to all employees present during the period of outbreak as follows:
  • One test immediately upon discovery of the outbreak and a second test one week later. Note that test results do not alter the period of any ordered quarantine.
  • After the first two tests, continue testing once per week until there are no new COVID-19 cases detected for 14 days.
  • Remember, employees must be compensated for the time spent testing.
  • 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.
• Ensure COVID-19 cases are excluded from the workplace as outlined above under Section 10.
• Investigate and determine any workplace factors that contributed to the outbreak.
• Review COVID-19 procedures and implement changes to prevent the further spread of the virus.
  • Investigate hazards and determine whether employees may have been discouraged from remaining home when sick; ensure proper testing policies; outdoor air; air filtration and physical distancing.
  • Update the review every 30 days that the outbreak continues, in response to new information or to new or previously unrecognized COVID-19 hazards.
  • Implement changes to reduce the transmission of COVID-19 based on the investigation.
• Notify the health department as soon as an outbreak is known but no longer than 48 hours after discovery.
  • Provide the total number of cases and the name, contact information, occupation, workplace location, business address, the hospitalization and/or fatality status, and North American Industry Classification System code of the workplace of the COVID-19 case, and any other information requested by the local health department.
  • Effective January 1, 2021, provide the local health department the same notice as required by AB 685 (the new Labor Code 6409.6). See our related alert on AB 685. 
     

MAJOR COVID-19 OUTBREAKS

If an employer has 20 or more COVID-19 cases in an exposed workplace within 30 days, then, until there are no new COVID-19 case detected for 14 days, the employer shall:

• Provide COVID-19 testing at no cost during employee working hours to all employees present during the period of outbreak and who remain at the workplace as follows:
  • Twice per week or more if required by the local health department.
• Ensure COVID-19 cases are excluded from the workplace as outlined above under Section 10.
• Investigate and determine any workplace factors that contributed to the outbreak.
• Review COVID-19 procedures and implement changes to prevent the further spread of the virus and comply with the requirements of 3205(c)(3) which are described in Section 3 above.
• Implement effective policies and procedures identifying and correcting unsafe or unhealthy conditions, work practices, policies and procedures in a timely manner based on the severity of the COVID-19 hazard to include physical distancing, face coverings and cleaning/disinfecting.
• Filter recirculated air with Minimum Efficiency Reporting Value (MERV) 13 or higher efficiency filters if compatible with the ventilation system. If MERV-13 or higher filters are not compatible with the ventilation system, employers shall use filters with the highest compatible filtering efficiency. Employers shall also evaluate whether portable or mounted High Efficiency Particulate Air (HEPA) filtration units, or other air cleaning systems would reduce the risk of transmission and shall implement their use to the degree feasible.
• Determine the need for a respiratory protection program or changes to an existing respiratory protection program.
• Evaluate whether to halt some or all operations at the workplace until COVID-19 hazards have been corrected.
• Notify the health department as soon as an outbreak is known but no longer than 48 hours after discovery.
  • Provide the total number of cases and the name, contact information, occupation, workplace location, business address, the hospitalization and/or fatality status, and North American Industry Classification System code of the workplace of the COVID-19 case, and any other information requested by the local health department.
  • Effective January 1, 2021, provide the local health department the same notice as required by AB 685 (the new Labor Code 6409.6). See our related alert on AB 685.

Please contact the Gordon Rees Scully Mansukhani Employment Law Group for assistance.