The coronavirus pandemic has undoubtedly transformed workplaces across the country, which has resulted in millions of people working from home or remotely. Along with these changes has come a wave of new COVID-19 related laws and regulations that impact employers and employees alike. The following is a brief overview of California workplace safety rules as they relate to the COVID-19 pandemic, including a discussion of the newly approved emergency regulations applicable to all employers.
Under the California Occupational Safety and Health Act of 1973, employers are required to “furnish employment and a place of employment that is safe and healthful for the employees therein.” (Lab. Code § 6400, subd. (a).) Employers’ obligation to ensure their employees a safe and healthful workplace extends beyond those areas controlled by the employer. Thus, this duty applies when employees are working remotely, such as from their homes, or off-site at a client or vendor’s facilities.
What are the new Cal/OSHA Emergency Temporary Standards?
On November 19, 2020, the California Occupational Safety and Health Standards Board, which sets standards within Cal/OSHA, unanimously adopted emergency temporary standards to protect workers from hazards related to COVID-19. The emergency regulations, which became effective on November 30, 2020, apply to all employers, all employees, and all places of employment, with three exceptions: (1) workplaces where there is only one employee who does not have contact with others; (2) employees who are working from home; and (3) employees who are covered by the Aerosol Transmissible Disease standard.
What is a COVID-19 Prevention Program?
Employers who are covered by the new requirements must prepare, implement, and maintain a written COVID-19 Prevention Program that includes:
System for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
- Identification and evaluation of hazards – screening employees for symptoms, identifying workplace conditions and practices that could result in potential exposure.
- Investigating and responding to cases in the workplace – responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one business day about potential exposures, and offering testing to workers who may have been exposed.
- Correcting COVID-19 hazards – including correcting unsafe conditions and work practices as well as providing effective training and instruction.
- Physical distancing – implementing procedures to ensure workers stay at least six feet apart from other people if possible.
- Face coverings – providing face coverings and ensuring they are worn.
- Adopting site-specific strategies such as changes to the workplace and work schedules and providing personal protective equipment to reduce exposure to the virus.
- Positive COVID-19 case and illness recording requirements and making the COVID-19 Prevention Plan accessible to employees and employee representatives.
- Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
- Criteria for employees to return to work after recovering from COVID-19.
- Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
- Specific requirements for infection prevention in employer-provided housing and transportation to and from work.
In addition to these obligations, employers must offer COVID-19 testing at no cost to their employees during their working hours who had a potential COVID-19 exposure in the workplace. They also must notify the local health department immediately but no longer than 48 hours after learning of three or more COVID-19 cases in a 14-day period. Employers are additionally subject to recordkeeping and reporting requirements. They must record and track all COVID-19 cases and make this information available to employees and authorized employee representatives while ensuring that any medical information remains confidential. Upon learning of a COVID-19 related death or serious illness, the employer must report it immediately to the nearest Cal/OSHA district office.
Are these Emergency Regulations Temporary or Permanent?
Following their adoption on November 30, 2020, the emergency temporary standards were codified in the new Title 8, sections 3205-3205.4, of the California Code of Regulations. Under the state’s emergency rule making procedures, the new regulations will remain in effect for 180 days unless the Cal/OSHA Board decides to renew, withdraw or replace them with a permanent standard. The Board may renew the emergency temporary standards up to two times for an additional 90 days each. If the emergency temporary standards are eventually submitted through the regular rulemaking process—which involves a period of notice and comment, then formal approval by the California Office of Administrative Law—they will become permanent.
What if My Employer Does Not Comply with the Emergency Standards?
Cal/OSHA recognizes that employers will need time to develop a written COVID-19 Prevention Plan and has indicated that it will consider an employer’s good faith efforts to implement the emergency temporary standards when evaluating compliance with the new rules. Employers should nevertheless be aware that failure to comply with the new emergency regulations can result in a Cal/OSHA citation and penalty, which can be very serious and costly. If employees believe that their employer is refusing or failing to comply with the new standards and is exposing them to COVID-19-related hazards as a result, employees can file workplace safety complaints by calling the Cal/OSHA district office that serves the location of their job site.
