March 1, 2021

Volume XI, Number 60

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March 01, 2021

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February 26, 2021

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Cal/OSHA Issues FAQs Addressing COVID-19 Testing and Outbreaks Under the Emergency Temporary Standards

On January 8, 2021, the California Division of Occupational Safety and Health (Cal/OSHA) released an updated version of its frequently asked questions (FAQs) guidance, entitled “COVID-19 Emergency Temporary Standards Frequently Asked Questions,” which includes information about COVID-19 Emergency Temporary Standards. The FAQs address a number of issues about COVID-19 testing and outbreak procedures and processes.

Under the emergency temporary standards adopted on November 30, 2020, California employers must comply with a multitude of duties and responsibilities for workplace testing, and in the event of multiple COVID-19 positive cases in a short period, outbreak procedures to minimize COVID-19 hazards in the workplace.

The FAQs provide answers to common questions posed by California employers regarding COVID-19 testing and outbreak procedures:

  • Employers do not have to provide testing to employees at their work locations. Employers “may provide testing to employees at a testing site separate from their work location.”

  • Employers can use free testing provided by cities and counties as long as the employees do not incur any testing costs. According to the FAQs, this “would also include reimbursing employees for travel costs to the testing site (e.g., mileage or public transportation costs).”

  • An employee’s refusal to take a COVID-19 test does not violate the emergency temporary standards. The FAQs state that employers are “not required to obtain a signed declination from employees who refuse to take a COVID-19 test.” This new position on employee testing refusals surprised many workplace safety professionals because section 3205.1(b)(2)(A) of the emergency temporary standards is very specific that in outbreak situations, “all employees in the exposed workplace shall be tested” [Emphasis added.] The FAQs appear to soften this language by requiring that employers simply offer or provide testing.

  • When Assembly Bill 685 went into effect on January 1, 2021, the “exposed workplace” definition did not change. According to the FAQs, the term “exposed workplace” includes “only the areas of the building where the COVID-19 cases were present during the ‘high-risk exposure period’.”

  • Employers should not consider common areas through which COVID-19 cases pass or spend transitory time when calculating an outbreak and the “exposed workplace.”

  • Employers can consider non-overlapping shifts as separate workplaces “[i]f the facility is well ventilated and the cleaning and disinfection requirements of the [emergency temporary standards] are met between or before shift changes.”

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© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 22
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Kevin Bland, Ogletree Deakins Law Firm, Workplace Safety and Construction Attorney
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Kevin D. Bland joined Ogletree Deakins law firm in their Orange County office in 2011. Mr. Bland provides a wealth of experience in Health and Safety.  Before he began his legal career, Mr. Bland had nearly 20 years of construction, safety, and business experience.  In 2000, he launched his legal career after graduating cum laude from Whittier School of Law. Mr. Bland holds a Contractor’s “A” License and his practice focuses primarily on safety, risk management, Cal-OSHA regulatory rulemaking, and Cal/OSHA citation appeals. He counsels and represents various...

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Karen Tynan, employment lawyer, Ogletree Deakins
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Karen Tynan is an of counsel attorney in the Sacramento office of Ogletree Deakins. Karen is originally from the state of Georgia, and after graduating with honors from the United States Merchant Marine Academy, she worked for Chevron Shipping Company for ten years – sailing as a ship's officer on oil tankers rising to the rank of Chief Officer with her Unlimited Master’s License as well as San Francisco Bay pilotage endorsement.  Karen was the highest ranking woman in the Chevron fleet when she left her seafaring life.  This maritime and petroleum experience is unique among employment...

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Charles Thompson, Ogletree Deakins Law Firm, Employment Law Attorney
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Charles L. Thompson IV counsels and defends employers in wrongful termination, discrimination, and other employment-related matters.  These areas include trade secrets and unfair competition, California and federal leaves of absence, ADA compliance, and wage and hour compliance.

Charles also represents employers in traditional labor law matters. He advises and represents employers in collective bargaining. He also represents employers in matters before the National Labor Relations Board, including in unfair labor practice and representation...

415-536-3430
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