California Corner: Cal-OSHA Steps up Pandemic Regulation—Workplace Safety Is Paramount

Caroline Powell Donelan

If you have googled “California” and/or “COVID‑19” this week, you undoubtedly know that many Golden State counties are again on the verge of shutdown as the state has now passed one million COVID‑19 cases. You also likely know that California’s Division of Occupational Safety and Health (“Cal-OSHA”) just enacted new emergency temporary COVID‑19 safety regulations that went into effect on Monday, November 30.

As with too many California rules, the new regulations are long on technical requirements and short on practical guidance. Cal-OSHA is supposed to meet this month to offer further clarification, and the state has at least published FAQs and an “employer one-pager” to cover the more basic terms and definitions; but in the meantime, below is a high-level snapshot of what you need to know now.

The new regulations cover nearly all California employers with three limited exceptions: (1) workplaces with just one employee who does not have contact with other people; (2) employees who are working from home; and (3) employees covered by Cal-OSHA’s Aerosol Transmissible Disease standard, which applies to certain health care employees and laboratories. For employees that split their time between home and the employer’s workplace, the regulations only apply when the employee works at the workplace or is exposed at work, not when working from home.

As many California businesses have done already, employers must develop a written COVID-19 Prevention Program. Cal-OSHA has posted a Model COVID-19 Prevention Plan for employers to review and adapt.

This newly mandatory Prevention Program requires employers to implement the following:

    • Communication to employees about the employer’s COVID‑19 prevention procedures, including information on how to report COVID‑19 symptoms, accommodating high-risk employees, how to obtain testing, notice of potential exposure to COVID‑19, as well as cleaning and disinfection protocols.

    • Health screenings and protocols for responding to employees with symptoms of COVID‑19, reviewing state and local guidance and orders on prevention, reviewing existing practices for controlling COVID-19, evaluating and inspecting the workplace for risks and compliance, and implementing procedures to correct identified hazards.

    • Physical distancing of at least six feet whenever possible; otherwise, employees should be as far from others as possible (and, in that case, be prepared to demonstrate to Cal-OSHA why six feet is not possible).

    • Use of employer-provided (or employer-reimbursed) face coverings when indoors or within six feet of one another.

    • Engineering controls (such as partitions and ventilation), administrative controls (such as cleaning procedures of high-touch surfaces and tools; informing employees of cleaning and disinfection protocols; minimizing the use of shared tools, equipment, and vehicles; and providing, encouraging, and allowing time for frequent handwashing and sanitization), and personal protective equipment as required to reduce transmission risks.

    • Procedures to investigate and respond to COVID‑19 cases in the workplace.

    • COVID‑19 training to employees covering topics like transmission and symptoms, the importance of physical distancing, handwashing, and PPE, as well as COVID-19-related benefit information (such as workers’ compensation insurance and paid sick leave).

    • Confidential, no-cost, “on-the-clock” COVID‑19 testing to employees who are exposed to COVID-19 at work; and, in the case of an “outbreak,” immediate and then periodic (weekly or twice-weekly depending on the size of the outbreak) COVID-19 testing for employees in the “exposed workplace.”

    • Exclusion of COVID‑19 cases and exposed employees from the workplace until they are no longer an infection risk based on timelines (not testing) as set forth in the regulations—and, if the employee is able and available to work during this time, the employer must continue to provide the employee’s pay and benefits

    • Maintenance of records of COVID‑19 cases and reporting of serious illnesses and multiple cases to Cal-OSHA and the local health department.

While many California employers already have their COVID‑19 safety roadmap and plan, which is likely in constant flux, these plans and protocols almost certainly need legal review, proper memorialization, and likely updating to ensure compliance with these new regulations as well as the most recent

Centers for Disease Control and Prevention (“CDC”) guidelines. We encourage you to take the time to review the FAQs and the Model Prevention Plan, as Cal-OSHA is pressing this issue and is likely only to continue to do so in light of the spike in cases and particularly worrisome few months ahead.  If you have any questions or need guidance specific to your workplace, please do not hesitate to contact Blank Rome for more information.

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