On November 30, 2020, emergency temporary COVID-19 workplace standards (“ETS”) issued by the California Division of Occupational Safety and Health (“Cal/OSHA”) took effect.  The ETS, which requires stringent workplace protocols intended to curb the spread of COVID-19, applies to all California employers, other than those subject to the Cal/OSHA Aerosol Transmissible Disease standard or those with only one employee at the workplace who does not have contact with others.  Under the ETS, employers must adopt and implement a comprehensive COVID-19 prevention program that includes identification and correction of COVID-19 risks, employee screening, investigation of cases, use of face coverings and other protective equipment, exclusion of exposed employees, and provision of free COVID-19 testing in certain circumstances, among other requirements.  The ETS also mandates testing and other action when there are multiple infections or an “outbreak” in a workplace.

Cal/OSHA promptly published a “Frequently Asked Questions” document (“FAQs”), a one-page summary of the ETS, and a Model Prevention Plan.  These documents shed additional light on the ETS and how it might be enforced.

Below is an overview of the key takeaways from the new ETS and subsequent Cal/OSHA publications.

Basic Elements of the COVID-19 Prevention Program

The central feature of the ETS is the requirement that all employers implement a written COVID-19 prevention plan.  At a high level, the prevention plan must include the following:

  • Communication to employees about the employer’s COVID-19 prevention procedures;
  • Screening of employees for COVID-19, although employees may be asked to evaluate their own symptoms before coming to work;
  • Identification, evaluation, and correction of COVID-19 hazards;
  • Physical distancing of at least six feet unless it is not possible;
  • Use of face coverings, with only limited exceptions;
  • Use of engineering controls, administrative controls, and personal protective equipment as required to reduce transmission risk;
  • Procedures to investigate and respond to COVID-19 cases in the workplace, including to verify cases and receive information on test results and symptom onset;
  • COVID-19 training to employees;
  • Testing of employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implementation of regular workplace testing for employees in the exposed work areas;
  • Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk; and
  • Maintenance of records of COVID-19 cases and reporting of serious illnesses and multiple cases to Cal-OSHA and local health departments.

Closer Look: Training Requirements

 The ETS requires employers to provide training and information on the following topics:

  • The employer’s COVID-19 policies and procedures;
  • Information regarding COVID-19-related benefits;
  • The fact that COVID-19 is an infectious disease that can be spread through the air when an infectious person talks, vocalizes, sneezes, coughs, or exhales, that COVID-19 may be spread through surface contact, and that an infected person may have no symptoms;
  • Methods of physical distancing at least six feet apart and the importance of face coverings;
  • The fact that particles containing the virus can travel more than six feet, especially indoors, so other controls, including face covers and hand hygiene, must also be used;
  • The importance of frequent hand washing with soap and water for at least 20 seconds and the proper use of hand sanitizer;
  • Proper use of face coverings and the fact that face coverings are not respiratory protective equipment; and
  • COVID-19 symptoms, and the importance of obtaining a COVID-19 test and not coming to work if the employee has symptoms.

Closer Look: Investigation of COVID-19 Cases and Notification of Exposure

The ETS contains strict requirements for investigating COVID-19 cases in the workplace.  Employers must determine the day and time the COVID-19 positive individual was last present and, to the extent possible, the date of the positive diagnosis or appearance of symptoms.  Employers must determine which employees may have had a COVID-19 exposure by evaluating the activities of the COVID-19 case and all locations in the workplace the individual visited during the “high-risk exposure period.”  The ETS defines the “high-risk exposure period” as either (1) from two days before they first develop symptoms until 10 days after the symptoms have first appeared, and 24 hours have passed with no fever, or (2) from two days before until ten days after the specimen for the individual’s first positive test for COVID-19 was collected.

Within one business day, the employer must notify all employees who may have had COVID-19 exposure (and any authorized representatives, such as their union), as well as any independent contractors or other employers present at the workplace during the high-risk exposure period.   Importantly, the notice must not reveal the identity of the employee with COVID-19.  The FAQs clarify that notification is required only to employees who were potentially exposed by being within 6 feet of a COVID-19 case for at least 15 minutes over a 24-hour period during the high-risk exposure period.

Employers also must offer the potentially exposed employees free testing during working hours, and the FAQs confirm that the time an employee spends being tested (including during outbreaks as described below) is compensable work time.  Employers must also provide these employees with information on benefits to which the employee may be entitled (such as workers’ compensation, paid sick leave, leave under the federal Families First Coronavirus Response Act, company leave benefits, or benefits under a collective bargaining agreement).

Closer Look: Exclusion of COVID-19 Cases and Return to Work

The ETS requires employers to exclude employees with COVID-19 until they meet specified return to work criteria.  Furthermore, all exposed employees must be excluded for at least 14 days after the last known exposure to a COVID-19 case.  However, if permitted by a local health department, an employee may be temporarily reassigned to work where they do not have contact with other persons until they meet the return to work criteria.  A negative test result cannot be required as a condition of returning to work.

The ETS also contains an exemption from the exclusion requirements for circumstances in which “removal of an employee would create undue risk to a community’s health and safety,” provided this does not violate a local or state health order for isolation or quarantine.  The employer must request such an exemption from Cal/OSHA, and if granted, the employer must implement effective additional controls, including isolation of the employee or use of respiratory protection.

The ETS specifies that COVID-19 cases with symptoms may not return to work until: (1) at least 24 hours have passed since a fever of 100.4 or higher has resolved without use of fever-reducing medications, (2) symptoms have improved, and (3) at least 10 days have passed since symptoms first appeared.  COVID-19 cases who tested positive but never developed symptoms may not return until a minimum of 10 days have passed since the specimen collection date of their first positive COVID-19 test.

For employees excluded from work but who are otherwise able and available to work, the employer is required to continue and maintain the employee’s earnings, seniority, and all other rights and benefits.  This does not apply, however, to any period of time when the employee is unable to work for reasons other than protecting others at the workplace from possible COVID-19 transmission, or when the employer can demonstrate that the exposure was not work related.

Multiple COVID-19 Infections and Outbreaks

If a local health department identifies a place of employment as the location of a COVID-19 outbreak, or when there are three or more cases in an “exposed workplace” within a 14-day period, the ETS requires employers to provide free COVID-19 testing during working hours to all employees.  At a minimum, all employees must receive an initial test and a follow-up test one week later.  The employer must also provide continuous testing at least once per week until there are no new cases in a 14-day period.  The FAQs explain that the testing requirement for outbreaks triggered by three or more cases is not based on three or more cases in the “entire building,” but rather in the “exposed workplace.”  The FAQs further clarify that areas where masked workers momentarily pass through the same space without interacting or congregating are not part of the “exposed workplace,” and that the “exposed workplace” only includes “the areas of the building where the COVID-19 cases were present during the ‘high-risk exposure period.’”

In the event of a COVID-19 outbreak, the employer is required to notify the local health department immediately, but no later than 48 hours after the employer knows, or should have known, of three or more COVID-19 cases within a 14-day period.  Additionally, the employer must immediately investigate and determine the possible workplace-related factors that contributed to the outbreak.

Major COVID-19 Outbreaks

The ETS defines a “major” COVID-19 outbreak as 20 or more COVID-19 cases in an exposed workplace over a 14-day period.  In the event of a major outbreak, employers must provide testing twice per week, exclude all COVID-19 cases, investigate workplace illnesses, and take steps to eliminate any COVID-19 hazards.  Employers are also required to report major outbreaks to the local health department within 48 hours.  Employers must comply with the major outbreak requirements under the ETS standards until no new COVID-19 cases are detected in the workplace for a 14-day period.

COVID-19 Prevention in Employer-Provided Housing and Transportation

 The ETS requires that employer-provided housing allow for six feet of physical distancing, including appropriately spacing beds to allow for six foot spacing in all directions.  Employers also must ensure that housing units, kitchens, bathrooms, and common areas are disinfected and cleaned at least once per day, maximize outdoor airflow and increase air filtration efficiency, provide face coverings and COVID-19 testing, and isolate exposed residents.  These standards apply to all housing, including hotels and motels, but do not apply to housing provided for emergency response purposes.

The ETS also sets out requirements for employer-provided transportation.  Employers must screen employees prior to boarding, separate employees by at least three feet in all directions in the vehicle, provide face masks and hand sanitizer and enforce their usage, and clean the vehicle’s high-contact surfaces before each trip.  Additionally, vehicle windows must be kept open, with limited exceptions for hot and cold weather, and the employer must ensure that the ventilation system maximizes outdoor air.  The employer-provided transportation standards do not apply to transportation necessary for emergency response, or when the driver and all passengers are from the same household outside of work.

Looking Ahead

Because the ETS standards are now in effect, employers will need to immediately review and update their COVID-19 protocols to ensure compliance; violation of the ETS could result in complaints to Cal/OSHA and/or significant penalties for employers.  As employers grapple with the challenges of implementing the measures required under the ETS, Cal/OSHA may issue additional guidance in the coming weeks to help employers better understand and comply with their training, notification, employee exclusion, testing, and other obligations.  Employers should also be aware that it is likely that the federal Occupational Safety and Health Administration will issue its own emergency workplace standards applicable to employers across the nation once President-elect Biden takes office.

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Photo of Carolyn Rashby Carolyn Rashby

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. She conducts workplace investigations and cultural assessments, leads audits regarding employee classification, wage and hour, and I-9 compliance, advises on…

Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. She conducts workplace investigations and cultural assessments, leads audits regarding employee classification, wage and hour, and I-9 compliance, advises on employment issues arising in corporate transactions, and provides strategic counsel to clients on a wide range of workplace matters, including harassment and #MeToo issues, wage and hour, worker classification, employee accommodations, termination decisions, employment agreements, trade secrets, restrictive covenants, employee handbooks, and personnel policies. Her approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.

Photo of Thomas Brugato Thomas Brugato

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean…

Thomas Brugato is special counsel in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean Water Act, RCRA, CERCLA, EPCRA, TSCA, FIFRA, the Endangered Species Act, and the Occupational Safety and Health Act.

Mr. Brugato has extensive experience with EPA’s Renewable Fuel Standard program. He also has particular expertise in advising companies on environmental-related issues arising in the context of product recalls (such as compliance with PHMSA’s hazardous materials transportation regulations), including recalls under NHTSA or CPSC jurisdiction. Finally, Mr. Brugato has significant experience advising clients on Indian law related issues, particularly relating to the Indian Gaming Regulatory Act and tribal sovereign immunity.

Photo of Daniel Auten Daniel Auten

Daniel Auten is an associate in the firm’s Litigation and White Collar Defense and Investigations practice groups. His practice focuses on complex civil litigation and government investigations, with particular focus on pharmaceutical litigation and product liability actions.