On November 18, 2020, the California Division of Occupational Safety and Health (“Cal OSHA”) proposed emergency regulations (California Code of Regulations (CCR) sections 3205, 3205.1, 3205.2, 3205.3 and 3205.4) to adopt new workplace protocols that provide employers with more comprehensive guidelines to adequately and quickly enforce or modify existing safety rules to COVID-19. The main requirements of the rules are that employers must implement an effective COVID-19 prevention program. Some of the new requirements include, but not are not limited to, an employer’s obligation to provide COVID-19 testing, face covers and personal protective equipment to its employees at no cost to them.
These new rules are adopted under the CCR, Title 8, Division 1, Chapter 4, of the General Industry Safety Orders (GISO), and the new protocols can be merged into the employer’s existing injury and illness program. In addition to a COVID-19 prevention plan, the new regulations also discuss multiple COVID-19 infections, outbreaks, major outbreaks, and COVID-19 prevention in employer-provided housing and transportation.
CCR SECTION 3205 – COVID-19 PREVENTION
Who Does This Apply To?
The COVID-19 Prevention Program Guidelines applies to all employees and places of employment except (1) places of employment with one employee who does not have contact with other persons, (2) employees working from home, or (3) employees when covered by CCR Title 8, section 5199 pertaining to certain healthcare facilities, services, or operations.
What Does an Employer’s Prevention Plan Require?
The written elements of an employer’s COVID-19 Prevention Program must include the following 11 topics:
1. Systems For Communication
2. Identification and Evaluation of COVID-19 Hazards
3. Investigating and Responding to COVID-19 Cases in the Workplace
4. Correction of COVID-19 Hazards
5. Training and Instructions
6. Physical Distancing
7. Face Coverings
8. Other Engineering Controls, Administrative Controls, and Personal Protective Equipment (PPE)
9. Reporting, Recordkeeping, and Access
10. Exclusion of COVID-19 Cases
11. Return to Work Criteria
1. Systems for Communication: The employer must ask the employee to report the following three items without fear of retaliation:
a. (1) COVID-19 symptoms (i.e., fevers of 100.4 degrees Fahrenheit or higher, chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea, unless a licensed health care professional determines the person’s symptoms were caused by a known condition other than COVID-19);
b. (2) Possible COVID-19 exposures (i.e. being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the “high-risk exposure period” (i.e., the time period: (A) for persons who develop COVID-19 symptoms: from two days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved; or (B) for persons who test positive who never develop COVID-19 symptoms: from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected), and
c. (3) Possible COVID-19 hazards at the workplace (i.e., exposure to potentially infectious material that may contain SARS-CoV-2, the virus that causes COVID-19, including airborne droplets, small particle aerosols, and airborne droplet nuclei, which most commonly result from a person or persons exhaling, talking or vocalizing, coughing, sneezing, or procedures performed on persons which may aerosolize saliva or respiratory tract fluids, among other things).
The employer has an obligation to provide COVID-19 testing. If required to administer testing pursuant to sections 3205.1 and 3205.2 (see below), the employer must explain the reason for such testing and consequences of a positive test. An employer must also describe procedures and policies for accommodating employees who are at greater risk of severe COVID-19 illness.
2. Identification and Evaluation of COVID-19 Hazards: The employer must develop and implement a process for screening employees and for responding to employees with COVID-19 symptoms. Employers may ask employees to evaluate their own symptoms before reporting to work. If screening is conducted at the workplace, the employer should ensure face coverings are used, and if necessary, then use a non-contact thermometer.
The employer must provide guidance on how to respond effectively and immediately to individuals at the workplace who are a COVID-19 case to prevent or reduce the risk of transmission of COVID-19 in the workplace. A COVID-19 case means a person who (1) has a positive “COVID-19 test” approved by the FDA; (2) is subject to COVID-19-related order to isolate issued by a local or state health official; or (3) has died due to COVID-19, in the determination of a local health department or per inclusion in the COVID-19 statistics of a county. Note: a person is no longer a “COVID-19 case” in this section when a licensed health care professional determines that the person does not have COVID-19 as recommended by the California Department of Public Health (CDPH) or local health department.
The employer must conduct a workplace-specific identification of all interactions, areas, activities, processes, equipment, and materials that could expose employees to COVID-19 hazards, including (1) places and times when people may congregate or come in contact with one another, regardless of performing an assigned task, and (2) an evaluation of employees’ potential workplace exposure to all persons at the workplace or may enter the workplace, including coworkers, employees of other entities, members of the public, customers or clients, and independent contractors, including how employees and other persons enter, leave, and travel through the workplace.
For indoor locations, the employer should evaluate its efforts to maximize filtration efficiency with its existing ventilation system.
The employer must review applicable orders and guidance related to COVID-19 hazard and preventions and conduct periodic inspections as need to identify unhealthy conditions, practices, and procedures and to ensure compliance with employers’ COVID-19 policies and procedures.
3. Investigating and Responding to COVID-19 Cases in the Workplace: The employer should have an effective procedure to investigate COVID-19 cases in the workplace including verifying COVID-19 case status, receiving information regarding COVID-19 test results and onset of COVID-19 symptoms, and identifying and recording COVID-19 cases.
When a COVID-19 case at the place of employment occurs, the employer should take the following actions:
a. Determine the day and time the COVID-19 case was last present and, to the extent possible, the date of the positive COVID-19 test(s) and/or diagnosis, and the date the COVID-19 case first had one or more COVID-19 symptoms, if any were experienced;
b. Determine who may have had a COVID-19 exposure which requires an evaluation of the activities of the COVID-19 case and all locations at the workplace which may have been visited by the COVID-19 case during the high-risk exposure period;
c. Provide notice of potential COVID-19 exposure within one (1) business day in a way that does not reveal any personal identifying information of the COVID-19 case, to (a) all employees who may have had COVID-19 exposure and their authorized representatives and (b) independent contractors and other employers present at the workplace during the high-risk exposure period;
d. Offer COVID-19 testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace and provide them with the information on benefits to which employees may be entitled to applicable federal, state, or local laws including workers’ compensation, federal Families First Coronavirus Response Act (FFCRA), sections 3212.86 through 3212.88 as discussed in our prior Alert, and the employer’s own leave policies; and
e. Investigate workplace conditions related to contributing or reducing risk of exposure to COVID-19 hazards.
The employer must keep confidential all personal identifying information of COVID-19 cases or persons with COVID-19 symptoms including all COVID-19 testing or related medical services provided by the employer under this section and sections 3205.1 through 3205.4 except unredacted information on COVID-19 cases shall be provided to the local health department, CDPH, the Division, the National Institute for Occupational Safety and Health (NIOSH), or as otherwise required by law immediately upon request.
In addition to maintaining confidentiality, the employer shall not disclose or report such information without the employee’s express written consent to any person within or outside the workplace except (1) unredacted medical records shall be provided to the local health department, CDPH, the Division, NIOSH, or as otherwise required by law immediately upon request and (2) records that do not contain individually identifiable medical information or from which individually identifiable medical information has been removed.
4. Correction of COVID-19 Hazards: Employers must implement effective policies and/or procedures for correcting unsafe or unhealthy conditions, work practices, policies and procedures in a timely manner based on the severity of the hazard.
5. Training and Instructions: The employer must provide training including the following: (1) the employer’s COVID-19 policies and procedures, (2) information regarding employee’s COVID-19-related benefits, (3) the fact that COVID-19 is an infectious disease that can be spread through the air when an infectious person talks or vocalizes, sneezes, coughs, or exhales; that COVID-19 may be transmitted when a person touches a contaminated object and then touches their eyes, nose, or mouth, although that is less common; and that an infectious person may have no symptoms; (4) methods of physical distancing of at least six feet and the importance of combining physical distancing with the wearing of face coverings; (5) the fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing must be combined with other controls, including face coverings and hand hygiene, to be effective; (6) the importance of frequent hand washing with soap and water for at least 20 seconds and using hand sanitizer when employees do not have immediate access to a hand washing facility, and that hand sanitizer does not work if the hands are soiled; (7) proper use of face coverings and the fact that face coverings are not respiratory protective equipment; and (8) COVID-19 symptoms, and the importance of not coming to work and obtaining a COVID-19 test if the employee has COVID-19 symptoms.
Note: It is highly recommended for employers to require its employees in both management and non-management positions to complete Cal OSHA’s Training Academy to help comply with the regulations. The training takes roughly 30 minutes for either the company or its employees.
6. Physical Distancing: The employer must ensure all employees separated from other persons by at least six feet, except where an employer can demonstrate such separation is not possible, and except for momentary exposure while persons are in movement. Methods of physical distancing include: telework or other remote work arrangements; reducing the number of persons in an area at one time, including visitors; visual cues such as signs and floor markings to indicate where employees and others should be located or their direction and path of travel; staggered arrival, departure, work, and break times; and adjusted work processes or procedures, such as reducing production speed, to allow greater distance between employees.
7. Face Coverings: Employers should provide face coverings and ensure they are clean, undamaged, worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person, and where required by orders from the CDPH or local health department. Face shields, however, are not a replacement for face coverings, although they may be worn together.
Exceptions to these requirements are: (1) when an employee is alone in a room; (2) while eating and drinking at the workplace, provided employees are at least six feet apart and outside air supply to the area, if indoors, has been maximized; (3) employees wearing respiratory protection; (4) employees who cannot wear face coverings due to a medical (mental or physical) condition including a hearing-impaired or communicating with a hearing-impaired person; and (5) specific tasks which cannot be performed with a face covering which is limited to the time period in which such tasks are actually being performed, and the unmasked employee is at least six feet away from all other persons unless unmasked employees are tested at least twice weekly for COVID-19.
An employee who is exempt must wear an effective non-restrictive alternative if their condition or disability permits it. Any employee not wearing any covering, other effective alternative, or respiratory protection, must maintain physical distancing unless the unmasked employee is tested at least twice weekly for COVID-19.
Employers may not use COVID-19 testing as an alternative to face coverings when face coverings are otherwise required by this section.
An employer may not prevent any employee from wearing a face covering when not required to do so, unless it creates a safety hazard.
The employer must implement measures to communicate to non-employees the face coverings requirements and develop COVID-19 policies and procedures to minimize employee exposure to COVID-19 hazards originating from any person not wearing a face covering, including a member of the public.
8. Other Engineering Controls, Administrative Controls, and Personal Protective Equipment (PPE): The employer must install cleanable solid partitions that effectively reduce aerosol transmission between the employee and other persons at fixed locations when it is not possible to maintain physical distancing. For buildings with mechanical or natural ventilation, employers may maximize the quantity of outside air provided to the extent feasible, except when the United States Environmental Protection Agency (EPA) Air Quality Index is greater than 100 for any pollutant or if opening windows or letting in outdoor air by other means would cause a hazard, excessive heat or cold to employees.
In a manner that is not hazardous to employees, the employer must implement cleaning and disinfecting procedures, which require: (1) identifying and regularly cleaning and disinfecting frequently touched surfaces and objects and informing them of the planned frequency and scope of regular cleaning; (2) prohibiting the sharing of personal protective equipment and to the extent feasible, items that employees come in regular physical contact, but when it is not feasible to prevent sharing, sharing must be minimized and disinfected between use by different people, and (3) cleaning and disinfection of areas, material, and equipment used by a COVID-19 case during the high-risk exposure period.
The employer must evaluate its handwashing facilities, determine the need for additional facilities, encourage and allow time (i.e., at least 20 seconds each time) for employee handwashing, and provide employees with an effective hand sanitizer excluding those with methyl alcohol.
Regarding the use of PPE, the employer must evaluate the need for PPE to prevent exposure, such as gloves, goggles, and face shields, and provide such personal protective equipment as needed, which may also include respiratory protection.
9. Reporting, Recordkeeping, and Access: The employer must report information about COVID-19 cases at the workplace to the local health department whenever required by law or requested by the local health department and also report immediately to the Division any COVID-19-related serious illnesses or death. The employer must continue its obligation to maintain records of its steps as outlined in the COVID-19 Prevention Program in accordance with section 3203(b).
The written COVID-19 Prevention Program must be made available at the workplace to employees, authorized employee representatives, and to representatives of the Division immediately upon request.
The employer must keep a record of and track all COVID-19 cases with the employee’s (1) name, (2) contact information, (3) occupation, (4) location where the employee worked, (5) the date of the last day at the workplace, and (6) the date of a positive COVID-19 test. Medical information shall be kept confidential as required by law. The information must be made available to employees, authorized employee representatives, or as otherwise required by law, with personal identifying information removed.
10. Exclusion of COVID-19 Cases: The employer must ensure COVID-19 cases are excluded from the workplace until the return to work requirements are met, and also exclude employees with COVID-19 exposure from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case.
For those who are excluded from work and otherwise able and available to work, employers must continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee's right to their former job status, as if the employee had not been removed from their job. Employers may use employer-provided employee sick leave benefits for this purpose and consider benefit payments from public sources in determining how to maintain earnings, rights and benefits, where permitted by law and when not covered by workers’ compensation.
An employer, however, is not obligated to maintain an employee’s earnings and benefits if: (1) any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission, (2) where the employer demonstrates that the COVID-19 exposure is not work related, or (3) such employee is temporarily reassigned to work where they do not have contact with other persons until the return to work requirements are met and has yet to be excluded or isolated by the local health department.
11. Return to Work Criteria: The employer must ensure that COVID-19 cases with COVID-19 symptoms must not return to work until: (1) at least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications; (2) COVID-19 symptoms have improved; and (3) at least 10 days have passed since COVID-19 symptoms first appeared.
Employees who tested positive but never developed COVID-19 symptoms (i.e., asymptomatic), however, may return to work once a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.
Whether an employee is symptomatic or non-symptomatic, an employer may not require a negative COVID-19 test to return to work.
If an order to isolate or quarantine an employee is issued by a local or state health official, the employee must not return to work until the period of isolation or quarantine is completed or the order is lifted. If no period was specified, then the period shall be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.
If there are no violations of local or state health officer orders for isolation or quarantine, the Division may, upon request, allow employees to return to work on the basis that the removal of an employee would create undue risk to a community’s health and safety. In such cases, the employer must develop, implement, and maintain effective control measures to prevent transmission in the workplace including providing isolation for the employee at the workplace and, if isolation is not possible, the use of respiratory protection in the workplace.
CCR SECTION 3205.1 – MULTIPLE COVID-19 INFECTIONS AND COVID-19 OUTBREAKS
When a COVID-19 Outbreak exists or “when there are three or more COVID-19 cases in an exposed workplace within a 14-day period” occurs, an employer covered has an obligation—until no new COVID-19 cases are detected for a 14-day period—to provide COVID-19 testing, exclude COVID-19 cases, and abide by additional investigating, reporting, and hazard correction requirements.
Testing During a COVID-19 Outbreak
At no cost to employees during their working hours, the employer must provide COVID-19 testing to all employees at the exposed workplace except for employees who were not present during the period of an outbreak.
Once an outbreak occurs, the employer must test such employees and then tested again one week later. Negative COVID-19 test results of COVID-19 exposures does not impact the duration of quarantine periods. After the first two COVID-19 tests occur, employers must provide continuous testing of employees who remain at the workplace at least once per week until it is no longer obligated to per this section.
Additional Investigating, Reporting, and Hazard Correction Requirements
In addition to the investigation requirements of subsection 3205(c)(2) and 3205(c)(4), the employer must immediately perform and document a review of potentially relevant COVID-19 policies, procedures, and controls and implement changes as needed to prevent further spread of COVID-19. Such investigation should address and include: (1) new or unabated COVID-19 hazards related to policies and practices, (2) updated review every 30 days an outbreak continues, and (3) changes implemented to reduce transmission of COVID-19 based on the investigation.
When a COVID-19 outbreak occurs, within 48 hours, the employer must notify the local public health agency in the jurisdiction of the worksite of the names and number of qualifying employees and other relevant information while being mindful not to disclose any privacy-protected medical information, and continue to cooperate with the local health agency.
CCR SECTION 3205.2 – MAJOR COVID-19 OUTBREAKS
When a Major COVID-19 Outbreak exists or “when there are 20 or more COVID-19 cases in an exposed workplace within a 30-day period,” an employer is under the same obligation—until no new COVID-19 cases are detected for a 14-day period—to exclude and investigate when there is a COVID-19 Outbreak outlined in 3205.1, but is subject to different COVID-19 testing guidelines and additional requirements for hazard corrections.
Testing During a Major COVID-19 Outbreak
At no cost to employees during their working hours, employers must provide COVID-19 testing twice a week, or more frequently if recommended by the local health department, to all employees exposed, and those who remain, at the workplace during the relevant 30-day period(s).
Additional Hazard Correction Requirements
In addition to the requirements of subsection 3205(c)(4), the employer must (1) filter recirculated air with Minimum Efficiency Reporting Value (MERV) 13 or compatibly higher efficiency filters and evaluate the need and implementation of additional filtration units to reduce the risk of transmission, (2) determine the need for or modification of a respiratory protection program, (3) evaluate whether to halt some or all operations until COVID-19 hazards have been corrected, and (4) any other control measures deemed necessary by the Cal OSHA.
If you have any questions regarding this Alert, please contact the authors, David L. Cheng, partner in our Los Angeles office at dcheng@fordharrison.com, or Paul M. Suh, associate in our Los Angeles office at psuh@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.