California Employers are now Grappling with Cal OSHA’s COVID-19 Emergency Temporary Standard
Shortly before Thanksgiving, California’s Department of Industrial Relations Occupational Safety & Health Standards Board (“Board”) adopted a general safety order that creates an emergency temporary standard specific to potential workplace COVID-19 exposures (“Rule”). The Rule was quietly approved by the Office of Administrative Law without detailed analysis on November 30th and went into effect upon approval. While this gave little time for employers to come into compliance with the new requirements, the Division of Occupational Safety & Health (“Cal OSHA”) has maintained that many of the requirements are not entirely new and align with guidance previously issued on measures to address COVID-19 hazards in connection with employers’ Injury Illness and Prevention Program. Cal OSHA has also informally conveyed that the agency will work with employers to achieve compliance with the Rule, particularly in situations where employers are making a diligent effort to comply.
At a high level, the Rule imposes certain minimum requirements on covered California workplaces:
Implementation of written COVID-19 Prevention Program
Implementation of COVID-19 Preventive Measures
Reporting and Recordkeeping Requirements
Worker exclusion when employees have COVID-19 or have been exposed
Management of COVID-19 infections and outbreaks
Investigation of COVID-19 cases and outbreaks
Note that some workplaces, such as those subject to Cal OSHA’s Aerosol Transmissible Disease Standard (e.g., healthcare facilities), are exempt from the Rule’s requirements.
To help employers comply with the Rule, Cal OSHA released a Frequently Asked Questions page on December 1st that details their expectations for how employers can comply with the new regulations. The page provides insight into many of the new requirements, including components of a written COVID-19 Prevention Program, systems to communicate with employees on COVID-19 matters, dealing with COVID-19 hazards in the workplace, and measures for managing a COVID-19 case.
Several areas of note in the FAQs, are Cal OSHA’s guidance on new requirements for testing, notifications, and employee training. For testing, Cal OSHA specifically states that employers should “offer testing to potentially exposed employees at no cost and during working hours” as well as inform employees of testing resources. In addition, employers must “provide periodic” COVID-19 testing for employees in an “exposed workplace” during an outbreak or major outbreak. To comply with these requirements, employers may need to vet and line up a third party testing resource. Cal OSHA’s FAQ also indicates that employers must notify “employees of any potential exposures within one business day,” creating a notification obligation that is distinct from the notification required following the passage of Assembly Bill 685.
In addition to the FAQ, Cal OSHA also released a fact sheet summarizing the new requirements for employers, a Model COVID-19 Prevention Plan, and guidance communicating the agency will release further resources for employers to use to comply with the Rule, such as training resources. While the Model Plan provides substantial detail, employers should be aware that the Rule provides a “performance-based” requirement, so the Plan needs to be carefully tailored to address business, industry, and operational needs. Because of the layers of regulatory requirements applicable to COVID-19 issues, employers should also ensure their plan adheres to all federal and state laws, including relevant state and local health department orders and requirements.