On November 19, 2020, the California Occupational Safety and Health Standards Board implemented new temporary emergency COVID-19 regulations related to prevention and response to COVID-19 in the workplace. Yesterday, the California Office of Administrative Law (“OAL”) approved the emergency regulations.

Now that the OAL has approved the emergency regulation, employers will have to immediately familiarize themselves with the new emergency regulation and implement necessary changes to workplace policies and procedures.

One of the main requirements of the new emergency regulation requires employers to “establish, implement, and maintain an effective, written COVID-19 Prevention Program,” similar to California’s Injury and Illness Prevention Program requirements. The COVID-19 Prevention Program may be integrated into the employer’s existing Injury and Illness Prevention Program or be maintained in a separate document.

The requirements of the COVID-19 Prevention Program are codified in section 3205 of the Cal-OSHA’s General Industry Safety Orders. Below is a general overview of the key requirements that employers must include in their COVID-19 Prevention Programs:

System for Communicating.

Employers must ask employees to report COVID-19 symptoms, possible exposures, and possible COVID-19 hazards at the workplace.  Employers must describe procedures or policies for accommodating employees with conditions that put them at increased risk of severe COVID-19 illness.  Employers must also provide information about access to COVID-19 testing, COVID-19 hazards, and the employer’s policies and procedures related to COVID-19.

Procedures for Identifying and Evaluating COVID-19 Hazards.

Employers are required to establish procedures to regularly identify and evaluate COVID-19 related hazards in the workplace. Employers are required to develop and implement  a system that provides for screening employees for symptoms associated with COVID-19 and employers should let employees participate in the process of identifying and evaluating COVID-19 related hazards.

Investigating and Responding to COVID-19 Cases.

Employers are required to establish a procedure to investigate COVID-19 cases[1] in the workplace. This includes procedures for verifying COVID-19 case status, receiving information regarding COVID-19 test results, the onset of COVID-19 symptoms, and identifying and recording COVID-19 cases.

Employers also must take specific steps in response to a case of COVID-19 in the workplace, including, but not limited to, determining when the COVID-19 case was last present in the workplace, who may have been exposed, and notifying those employees or contractors who may have been exposed within one business day (without revealing any personal identifying information). Additionally, employers must offer free COVID-19 testing during working hours to all employees who were potentially exposed to the COVID-19 case and provide information on COVID-19-related benefits.

Employers must also conduct an investigation to determine whether any workplace conditions could have contributed to the risk of COVID-19 exposure and what could be done to reduce exposure to hazards.

Procedures for the Correction of COVID-19 Hazards.

Employers must correct unsafe or unhealthy conditions, policies, and procedures in a timely manner after either learning of a COVID-19 positive case or concerns raised by employees.

 COVID-19 Training.

The employer needs to include policies for training employees on topics relating to COVID-19. Employer must train employees on COVID-19 prevention measures such as physical distancing and hand washing. Employer must provide information about the transmission of the virus that causes COVID-19. Employers must also instruct employees on the symptoms of COVID-19, the importance of not coming to work and obtaining a test if the employee has symptoms, COVID-19-related benefits available to employee, and how COVID-19 is spread.

Physical Distancing.

Employees must be separated from other persons by at least six feet, except where employers can demonstrate that six feet of separation is not possible and except where there is momentary exposure while persons are moving.  If it is not possible to maintain at least six feet of distance, individuals must be as a far apart as possible.

Face Coverings.

Employers must include policies and procedures for enforcing the wearing of face coverings. Employers must provide face coverings and ensure that they are properly worn, clean, and undamaged.  There are various exceptions, such as when an employee is alone in a room and when an employee cannot wear a face covering due to a medical condition.

Other Controls and Personal Protective Equipment (PPE).

Employers must evaluate and consider additional site-specific engineering, administrative, and PPE controls to minimize the risk of COVID-19 infections such as installing partitions between individuals who cannot maintain physical distancing; increasing the supply of fresh air where possible; and implementing procedures for identifying and regularly cleaning and disinfecting frequently touched surfaces and objects.

Employers must evaluate the need for PPE such as gloves, goggles, and face shields, and provide such PPE as needed.

Reporting, Recordkeeping, and Access.

Employers must implement recordkeeping and reporting guidelines for COVID-19, including reporting COVID-19 cases at the workplace to local health departments whenever required by law and notifying the Department of Public Health about an outbreak. In addition, employers must continue to report to CAL-OSHA any COVID-19 related serious illnesses or deaths. Employer must also implement procedures for recording work-related COVID-19 cases. Further, employers must maintain records of the steps taken to implement the COVID-19 Prevention Program and must make the COVID-19 Prevention Program available at the workplace to employees, and to CAL-OSHA immediately upon request.

Additionally, employers must keep and 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.

Exclusion of COVID-19 Cases.

Employers must be sure to exclude COVID-19 cases from the workplace until return-to-work requirements are met (discussed below).  Employers shall exclude employees with COVID-19 exposure from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case. “COVID-19 exposure” is defined as being 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.

For employees that are excluded from the workplace and are otherwise able and available for work, employers must continue and maintain an employee’s earnings, seniority, and all other rights and benefits, including the employee’s right to their former job status. An employer, however, is not required to maintain an employee’s earnings if the employee is absent for reasons other than protecting the workforce, the “employer demonstrates that the COVID-19 exposure is not work related,” or the employee is “temporarily reassigned to work where they do not have contact with other persons until the return-to-work requirements … are met.”

Return-to-Work Criteria.

COVID-19 cases with COVID-19 symptoms cannot return to work until (1) at least 24 hours has passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications; (2) COVID-19 symptoms have improved; and (3) at least 10 days have passed since COVID-19 symptoms first appeared.  For asymptomatic but positive COVID-19 cases, at least 10 days must pass “since the date of specimen collection of their first positive COVID-19 test” before those individuals may return to work.  A negative COVID-19 test is not required for an employee to return to work.  Employers must also adhere to local or state health orders related to COVID-19 employee isolation or quarantine.

Multiple COVID-19 Infections and COVID-19 Outbreaks.

On top of the new requirement of maintaining a COVID-19 Prevention Program, employers need to take additional steps in the event of workplace outbreaks. Employers are required to conduct additional investigations and report the outbreak to the local health department in the event: (1) there are three or more COVID-19 cases in the workplace within a 14-day period; (2) a local health department has identified the workplace as the location of a COVID-19 outbreak; or (3) a major COVID-19 outbreak (20 or more cases) occurs at the workplace within a 30-day period. Lastly, employers must provide COVID-19 testing to all exposed employees if any of the three scenarios described above occur.

The emergency regulations will be in effect for only 180 days, with possible extensions. Considering the voluminous requirements, employers should immediately review the emergency regulation and begin to take steps to implement their COVID-19 Prevention Program. Please do not hesitate to contact NavBat if you need help to comply with Cal-Osha’s new emergency rule.

[1] A “COVID-19 case” refers to a person who has tested positive for COVID-19, has been ordered to isolate by a state or local health official, or has died of COVID-19.