COVID-19 continues to make life more difficult! On November 19, 2020, the Occupational Safety & Health Standards Board approved an emergency temporary safety standard related to COVID-19 (“Standard”). It will be codified as 8 C.C.R. §§ 3205-3025.4. Find it here: https://www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Emergency-apprvdtxt.pdf
For most employers in this State, developing the framework for a COVID-19 Prevention Program will be extremely time-consuming and expensive. Complying with the numerous requirements for evaluating risks, providing appropriate training, meeting the notification rules and dealing with COVID-19 in the workplace, including testing, will overwhelm many employers, particularly small and mid-sized businesses who don’t have the resources to dedicate to this project. Many employers will consider purchasing a pre-fabricated Program as they did when SB 198 and the Injury and Illness Prevention Program became law. We are concerned, however, that without proper adaptation to the specific workplace, and understanding of the requirements of this law, employers will not develop and implement an effective Program that will minimize the risk of COVID-19 transmission or minimize the risk of a fine for non-compliance.
Some of the requirements of the Standard are already required by the state Public Health Department or local Public Health Departments, or by the previously-issued Cal/OSHA Guidance. New requirements imposed by the Standard will go into effect on January 1, 2021. Every business must include the provisions of those local and state orders in its policies and practices. Because of the time involved in developing these policies, we encourage employers to move quickly on implementing a comprehensive Covid-19 Prevention Program.
The Standard Covers Nearly All Workplaces
Almost every employee in the state is covered by the Standard. The only exceptions are for: (1) workplaces with only one employee who does not have contact with other persons (a lonely job indeed); (2) employees working from home; and (3) employees who are covered by the state Aerosol Transmissible Disease Standard found in 8 C.C.R. § 5199. Employees in this third category are those who are subject to exposure from work activity or conditions that create an elevated risk of contracting any disease caused by aerosol transmissible pathogens.
COVID-19 Prevention Program
A covered employer must establish, implement and maintain an effective, written COVID-19 Prevention Program (“Program”). I will add that the Program must include appropriate procedures for responding to COVID-19 exposure as well. This Program should look much like your existing Injury and Illness Prevention Program and include a system of communication, identification and evaluation of COVID-19 hazards, investigating and responding to COVID-19 cases, correcting hazards, and employee training. There are specific requirements for each of the elements of this Program. How to implement these specific requirements must be evaluated by each business and decisions made based on the characteristics of each business.
The Program should also include specific requirements and obligations for physical distancing, face coverings, engineering controls or PPE, reporting and recordkeeping, and return-to-work criteria.
Obligations in the Event of Multiple Infections or COVID-19 Outbreaks
The Standard imposes particular duties, including testing, in the event that the workplace has been identified by a local health department as the location of a COVID-19 outbreak, or when there are three or more COVID-19 cases in a workplace within a 14-day period.
COVID-19 Testing. The employer must provide testing to all employees at the exposed workplace unless an employee was not present during the outbreak or the 14-day period. The employer must provide testing at no cost to the employee, and during the employee’s working hours.
The first test must take place immediately. The second test must take place one week later. Weekly testing (or more frequent if required of the health department) is required of employees who remain at the workplace.
Exclusion & Return-to-Work Criteria. An employer must exclude employees with COVID-19 or COVID-19 exposure as set forth in the company’s Program. The Program must exclude employees with COVID-19 until at least 24 hours has passed since the employee had a fever of 100.4 or higher, COVID-19 symptoms have improved; and at least 10 days have passed since the symptoms first appeared. Employees with COVID-19 exposure must be excluded from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case. Finally, an employee who tested positive but never developed COVID-19 symptoms cannot return to work until a minimum of 10 days have passed since the date of specimen collection of the first positive test.
A negative COVID-19 test is not required for an employee to return to work.
If an order to isolate or quarantine an employee is issued by a local or state health official, the employee cannot return to work until the period of isolation or quarantine is completed. If no time period is specified, the period is 10 days from the effective date of the isolation order or 14 days from the effective date of the quarantine order.
An employer is not required to exclude an employee who has not been excluded or isolated by the local health department if temporarily assigned to work where the employee does not have contact with other persons until the return-to-work requirements are met.
Continue Earnings and Other Rights and Benefits. The employer must “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” if the employee who is excluded from work is otherwise able and available to work. This includes restoring the employee to his/her former job status as if the employee had not been removed from the job.
According to the Cal/OSHA FAQ page, this means that “the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments.”
This requirement to continue providing the employee’s pay and benefits does not apply if the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission, or if the employer shows the COVID-19 exposure is not work-related.
Notice of Benefits at Exclusion. At the time of exclusion, an employer is required to provide the employee notice of benefits to which the employee may be entitled from federal, state or local sources. The employer must also notify the employee of the right to maintain pay, seniority and other employee rights and benefits.
Investigation. An employer must immediately investigate and determine possible workplace-related factors that contributed to the COVID-19 outbreak as set forth in the company’s Program. The employer must also review of potentially relevant COVID-19 policies, procedures and controls, and implement changes to prevent the spread of COVID-19. The review must be documented and include: (1) The investigation of COVID-19 hazards, including leave policies and practices, including whether employees are discouraged from remaining home when sick, testing policies, insufficient outdoor air, insufficient air filtration and lack of physical distancing; (2) a review updated every 30 days that the outbreak continues, and in response to new information or previously unrecognized COVID-19 hazards; and (3) the implementation of changes to reduce COVID-19 transmission. With respect to this requirement, an employer must consider moving tasks outdoors, having tasks performed remotely, increasing outdoor air supply, improving air filtration, increasing physical distancing, respiratory controls and other applicable controls.
Notification to Local Health Department. An employer must contact the local health department within 48 hours after the employer knows, or with diligent inquiry, would have known of three or more COVID-19 cases. The information that must be provided includes: The total number of cases, and for each COVID-19 case, the name and contact information, occupation, workplace location, business address, hospitalization or fatality status, the ICS code, and any other information requested by the local health authority.
Major COVID-19 Outbreaks
Additional requirements are imposed when there are 20 or more COVID-19 cases in an exposed workplace within a 30-day period. Testing must be done at least twice each week to all employees present at the exposed workplace and who remain at the workplace at no cost and during working hours. The employer must also exclude persons with COVID-19 and conduct an investigation of the illnesses.
In addition to hazard corrections, an employer must use high efficiency filters with the ventilation system. Employers must also consider the use of portable or mounted HEPA filtration units or other air cleaning systems. An employer must determine the need for a respiratory protection program to address COVID-19 issues. Finally, an employer must evaluate whether to halt some or all operations.
Employer-Provided Housing
In the event an employer provides housing, employers must assign housing units in the following priority: (1) House residents together who usually maintain a household together outside of work; (2) House persons on the same crew in the same unit; (3) House employees who do not work together or maintain a household together in the same unit when there are no other alternatives.
Employers must ensure the units are of sufficient size to permit at least six feet of physical distancing between residents in all areas, ensure beds are six feet apart in all directions, or follow other directions. Bunk beds are prohibited. The employer must also maximize the quantity and supply of outside air.
Employers must provide face coverings and train on their use. Employers must also ensure that units are cleaned and disinfected daily, while protecting the privacy of residents. Employer must ensure that dishes, utensils and cups are not shared.
The employer must encourage residents to report COVID-19 symptoms. The employer must then test occupants who have or have had symptoms. The employer must then isolate COVID-19 exposed residents from other occupants. Persons with COVID-19 must be isolated with other infected residents.
Employer-Provided Transportation
An employer has yet additional duties if it provides for, arranges for or secures transportation to and from work. The employer must prioritize transportation. First, members of the same housing unit should be transported together. Next, members of the same crew should be transported together. Finally, persons who do not work together or share the same household should be transported together when no other options are available.
While waiting for transportation, employees must remain physically distanced. In the vehicle, passengers must be separated by three feet in all directions. The employer must provide masks for the driver and passengers.
An employer must develop and implement procedures to screen and exclude drivers and passengers with COVID-19 symptoms. High contact surfaces must be disinfected before each trip or change of drivers.
Employers must ensure windows are kept open and the ventilation system is set to maximize outdoor air. Windows can be shut if the outside are is greater than 90 degrees and the air conditioner functions, or if the temperature is below 60 degrees and the heater functions, if it is raining or snowing, or if the vehicle has a cabin filter and the EPA Air Quality Index is greater than 100. Finally, the employer must provide sanitizer and ensure driver and passengers use it entering and exiting the vehicle.
Summary
There is no doubt that this new Standard is comprehensive, and that the Program required to develop and implement, is overwhelming for most employers. It will take significant time and effort to develop and implement a Program that meets the requirements of the Standard. It will be challenging for most employers to implement the program in order to meet the exacting requirements imposed by regulatory fiat.
Fishman, Larsen & Callister and Sierra HR Partners have developed COVID-19 Prevention and Response Programs for businesses in various industries. Feel free to contact us if you have questions about the new Standard or if you need assistance developing your Program.
Fishman, Larsen & Callister
559.256.5000 or [email protected]