California Occupational Safety and Health Administration (Cal-OSHA) just issued 21 pages of COVID-19-related emergency rules, effective for up to six months. The new rules require employers to establish a written COVID-19 Prevention Program.
Here’s what employers must do now.
Communicate and train
- Inform employees about how COVID-19 is transmitted and how to limit transmission.
- Ask employees to report to the employer, without fear of reprisal, COVID-19 symptoms, possible COVID-19 exposure, and possible COVID-19 workplace hazards.
- Inform employees of their eligibility for COVID-19-related government benefits.
- Describe employer policies for accommodating employees with conditions that increase their risk of severe COVID-19 illness.
- Inform employees about access to COVID-19 testing.
- Inform those in the workplace about COVID-19 hazards.
- Train employees how to protect themselves against COVID-19 hazards.
Identify COVID-19 hazards
- Identify COVID-19 hazards with employee input.
- Conduct a comprehensive workplace-specific identification of all interactions, areas, etc. that could expose employees to COVID-19 hazards.
- Screen employees, ensuring that both screeners and employees use face coverings during any onsite screening and, if temperatures are measured, that non-contact thermometers are used.
- Establish policies for responding quickly to information that employees have, or have been exposed to, COVID-19.
- For indoor workspaces, evaluate how to maximize outdoor air and increase the efficiency of air filtration systems.
- Have an effective policy of correcting unsafe or unhealthful workplace conditions.
Face coverings
- Provide face coverings and ensure they are worn properly. Face shields are not a replacement for face coverings, but may be worn with face coverings.
- Face covering need not be worn by: an employee alone in a room; employees eating and drinking in the workplace with proper social distancing: employees who cannot wear face coverings due to physical or mental health conditions or who are hearing-impaired or communicating with the hearing-impaired; or by an employee while engaged in tasks which cannot be performed with a face covering.
Physical distancing and other control practices
- Where possible, separate all employees by at least six feet, except for momentary exposure when people are moving.
- Install cleanable partitions between employees not separated by at least six feet.
- Limit the sharing of regularly touched items, such as keyboard, phones, and pens.
- Evaluate the need for additional personal protective equipment, such as gloves and goggles, and provide it where needed.
Investigate and respond to COVID-19 cases
An employer faced with a “COVID-19 case” in the workplace, that is, a person connected to the workplace who has tested positive for COVID-19, is subject to a public health official’s COVID-19-related order to isolate, or who has died from COVID-19, must:
- Determine exactly when the individual was last present and, if possible, the date of the positive COVID-19 test or diagnosis and the first date of any symptoms.
- Determine where and with whom the COVID-19 case may have had contact in the workplace during the high-risk exposure period.
- Notify, within one business day, all employees and independent contractors who may have been exposed to the COVID-19 case, without disclosing the identity of the COVID-19 case.
- Offer free COVID-19 testing during working hours to all employees who may have been exposed to the COVID-19 case.
- Investigate whether workplace conditions may have increased the risk of COVID-19.
Reporting, recordkeeping, and access
- Report COVID-19 cases in the workplace to public health authorities where required by law.
- Immediately report to Cal-OSHA an employee’s serious illness or death that occurs in the workplace or that is employment-related.
- Keep a written record of, and track, all COVID-19 cases “with the employee’s name, contact information, occupation, location where the employee worked, the employee’s last day at the workplace, and the date of a positive COVID-19 test.” Make such records available to employees, with personal identifying information removed.
Exclude COVID-19 cases from workplace
- Exclude symptomatic COVID-19 cases from the workplace until: at least 24 hours have passed without a fever of 100.4 without the use of fever-reducing medication; COVID-19 symptoms have improved; and at least ten days have passed since the onset of symptoms.
- Exclude COVID-19 cases who tested positive but never developed symptoms for at least ten days after the date of specimen collection of their first positive COVID-19 test.
- Exclude employees with COVID-19 exposure from the workplace for 14 days after the last known exposure.
- An employer may not require a negative COVID-19 test for an employee to return to work.
- Employees excluded from the workplace who otherwise are able and available to work, such as asymptomatic COVID-19 cases, must continue to be paid and are entitled to all of their other rights and benefits “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” as the law permits and as not covered by workers’ compensation.
- An employee is not entitled to continued compensation and benefits (1) while an employee cannot work for reasons other than protecting other employees from COVID-19 transmission and (2) where the employer demonstrates the employee’s COVID-19 exposure was not work related.
The regulations also address what an employer must do when faced with multiple COVID-19 infections and COVID-19 outbreaks, including a mandate that employers provide testing to all employees present in the workplace during an outbreak and provide certain information to local health officials. There also are rules on COVID-19 prevention in employer-provided housing.
These rules may not last through May. And yet while the cavalry is on the move, so is COVID-19.
Dan Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com. His Twitter handle is @DanEatonlaw
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