CAL/OSHA adopts new emergency, temporary COVID-19 regulations

The California Occupational Safety and Health Standards Board has approved emergency, temporary COVID-19 regulations under California's Occupational Safety & Health Act (Cal/OSHA). California employers must now establish specific measures to curb the spread of COVID-19 in nearly every workplace in California.

The emergency regulations, which the Standards Board approved on Thursday night by a unanimous vote, must first be submitted to the Office of Administrative Law (OAL) for final approval. Upon submission, the OAL will have only 10 calendar days to approve or deny the proposed emergency regulations. If approved, the OAL will file the emergency regulation with the Secretary of State, and the emergency regulation will remain in effect up to 180 days. Under this timetable, the earliest date the new regulations could take effect is November 29, 2020.

The emergency regulations contain detailed mandates that most employers subject to California's Occupational Safety & Health statute must abide by in order to control, prevent, and mitigate the spread of COVID-19 in the workplace. The regulations do not apply to employees that work from home or to employers covered under Cal/OSHA's Aerosol Transmissible Diseases standard, including hospitals, skilled nursing facilities, clinics, and others.

One of the principal requirements of the new regulations is to establish, implement, and maintain an effective, written COVID-19 Prevention Program, which can be incorporated into the employer's Injury and Illness Prevention Program or maintained in a separate document. The COVID-19 Prevention Program must cover 11 different subjects, some in considerable detail. In summary, the Program must include:

1. A system for communicating with employees about COVID-19 testing and to encourage employees to identify hazards and symptoms without fear of reprisal.


2. Procedures for identification and evaluation of COVID-19 hazards. Employers must allow employees and their authorized representatives to participate in the identification and evaluation of COVID-19 hazards. The regulations detail more specifically what employers must do to identify and anticipate opportunities for potential exposure, including "places and times when people may congregate or come in contact with one another."


3. Procedures for investigating and responding to COVID-19 cases in the workplace. These must include contact tracing and disclosing a potential COVID-19 exposure within one business day, without revealing any personal identifying information of the affected employee. Unredacted information on COVID-19 cases must be provided to the local public health authorities upon request. Employers must offer COVID-19 testing at no cost to all employees who had potential COVID-19 exposure in the workplace.


4. Correction of COVID-19 hazards. This may include the provision of more personal protective equipment or other controls.


5. Training and instruction. Employers are expected to train employees on their COVID-19 rules and procedures; on the coronavirus itself, its transmission, and mitigation; and on leave rights available to the employees under California and federal law.


6. Physical distancing. The regulation reads: "All employees shall be separated from other persons by at least six feet, except where an employer can demonstrate that six feet of separation is not possible, and except for momentary exposure while persons are in movement." The regulation cites methods for achieving this requirement, including telework; reducing the number of employees in any one area at a time; and staggered arrival, departure, and break times, among others.


7. Face coverings. Employers must provide face coverings for employees and enforce their use. Some limited exceptions exist for eating (with physical distancing); for the hearing-impaired and for those who communicate with them; and when an employee is alone in a room.


8. Other engineering controls, administrative controls, and personal protective equipment. Depending on the circumstances, this may include cleanable solid partitions. Hand sanitizers with methyl alcohol are prohibited.


9. Reporting, recordkeeping, and access. The Program should restate the employer's reporting and recordkeeping obligations under Cal/OSHA. Employers shall also maintain records of the steps taken to implement this Program, and specific information regarding all COVID-19 cases in the workplace. Employers shall make the Program available to employees and their representatives upon request.


10. Exclusion of COVID-19 cases. Employers must keep employees with COVID-19 exposure out of work for 14 days, and for those employees who are otherwise able to work but are required to self-quarantine, the employer must continue paying those employees (through sick leave benefits or otherwise) and protect their jobs.


11. Return to work criteria. Employees with symptoms of COVID-19 should 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.

The emergency regulations also contain stricter requirements for multiple COVID-19 infections and outbreaks in the workplace. Employers with knowledge of three or more COVID-19 cases among employees must notify the local public health officials of the COVID-19 outbreak within 48 hours. Moreover, employers must provide free COVID-19 testing to all employees who remain at the workplace after an outbreak.

Finally, the regulation contains additional requirements for "major outbreaks" (defined as 20 or more COVID-19 cases in a 30-day period); for employer-provided housing; and for employer-provided transportation to and from work.