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As COVID-19 Cases Overwhelm the Golden State, Cal/OSHA Imposes More Burdens on Employers

California’s Division of Occupational Safety and Health, better known as “Cal/OSHA,” recently issued new emergency temporary standards to protect workers from COVID-19 (the “Emergency Temporary Standards”), which were approved by the Office of Administrative Law earlier this week.  The Emergency Temporary Standards, which are now in effect, apply to virtually all California employers, employees, and places of employment, with three exceptions:  (1) workplaces where there is only one employee who does not have contact with other people; (2) employees who are working remotely; and (3) employees covered by Cal/OSHA’s Aerosol Transmissible Diseases regulation.

Under the Emergency Temporary Standards, all covered employers must establish, implement, and maintain “an effective, written COVID-19 Prevention Program,” which may either be a standalone document or incorporated into employers’ preexisting Injury and Illness Prevention Programs.  Among other things, the COVID-19 Prevention Program must:

  • Ensure that employees know they must, without fear of reprisal, report COVID-19 symptoms, possible exposures and/or possible COVID-19 hazards in the workplace;

  • Communicate to employees about the employer’s COVID-19 prevention procedures and available testing resources;

  • Identify, evaluate, and correct COVID-19 hazards;

  • Establish physical distancing, face covering protocols, and other controls or equipment to reduce transmission risk;

  • Develop procedures to investigate and respond to COVID-19 cases, including an effective employee screening process;

  • Provide COVID-19 training;

  • Provide testing to employees who are exposed to COVID-19, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas;

  • Require the exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk; and

  • Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and local health departments, as required.

Paradoxically (given the purported goal of preventing exposure in the workplace and further spread of this deadly virus), and in contrast to guidance from both the EEOC and California Department of Fair Employment and Housing, the Emergency Temporary Standards provide that “[a] negative COVID-19 test shall not be required for an employee to return to work” following infection or exposure.

Given that the Emergency Temporary Standards take effect immediately, employers with any employees in California may wish to contact counsel to assist them in developing a compliant COVID-19 Prevention Program.

© 2023 Proskauer Rose LLP. National Law Review, Volume X, Number 338

About this Author

Anthony J Oncidi, Employment Attorney, Proskauer Rose Law Firm

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office. Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection....

Phillipe Lebel labor & Employment Attorney Los Angeles Proskauer Law Firm

Philippe (Phil) A. Lebel represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, whistleblower, trade secrets, and breach of contract litigation, in both the single-plaintiff and class-action context, at both the trial and appellate level, and before administrative agencies. Phil also represents employers in connection with labor law matters, such as labor arbitrations and proceedings before the National Labor Relations Board. Additionally, Phil counsels clients to ensure compliance with federal...