On November 30, 2020, Cal-OSHA’s proposed temporary COVID-19-related emergency regulations became effective. The new regulations, which are found here, will remain in effect until October 2, 2021, unless they are extended.
The new regulations apply to most California employees, only excluding employees working from home, an employee at a site where the employee does not have contact with others and employees covered by Cal-OSHA’s Aerosol Transmissible Diseases standard (applies to certain healthcare facilities and labs).
Under the new regulations, employers must adopt and implement a written COVID-19 Prevention Program (CPP), which can be a part of or separate from the employer's regular Injury and Illness Prevention Program. In this regard, employers should be aware that the new CPP requirements will likely require supplementation of existing COVID-19 prevention programs.
The required CPP components include: a communication system to inform employees of COVID-19 preventions procedures (testing, symptoms, illnesses and an employee reporting system to report exposures without retaliation); employee training and instruction; identification and evaluation of hazards (including consideration of air quality and filtration systems, and analysis of times, places, surfaces and occurrences of potential exposure); a system to investigate and respond to COVID-19 cases, including providing notice to employees and independent contractors within one business day of potential exposure without disclosing personal identifying information of the COVID-19 case; a system to correct COVID-19 hazards, including period inspections; requirements regarding physical distancing, face coverings and other personal protective equipment, as necessary; site-specific methods to reduce exposure; positive COVID-19 case and illness recording; removal of workers exposed to or positive for COVID-19; return to work criteria; testing and health department notice requirements; and infection prevention in employer-provided housing and transportation to and from work.
Employers should note that the emergency Cal-OSHA notice requirements are not as expansive as the employer requirement to provide notice to employees of potential COVID-19 exposure under AB 685, which will become effective on January 1, 2021. As we reported here, employers learning of a worksite potential COVID-19 exposure under AB 685 must provide written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the qualifying individual within the infectious period that they may have been exposed to COVID-19.
An important new requirement is that an employer must continue an employee’s earnings, seniority, and all other rights and benefits for any employee who is able to and available for work, but who is excluded from the workplace due to a positive COVID-19 test, a local or state isolation order, or during a 14-day period after COVID-19 exposure or positivity, if the employee was within 6 feet of the positive individual for a cumulative total of 15 minutes or more during a 24-hour period. However, if an employer can prove that an employee’s exposure was not work-related, no continuation of pay or benefits is required during the period of any exclusion from the workplace.
To provide continued earnings, employers may use employer-provided sick leave and benefits from other public sources. Public sources may include government-provided wage replacement when Workers’ Compensation does not apply. As we previously reported here, SB 1159, Workers’ Compensation will apply if an employee tests positive for or is diagnosed with COVID-19 under certain circumstances. Emergency paid leave may also be available under the federal Families First Coronavirus Response Act (FFCRA), as we previously reported here. However, FFCRA paid leave requirements will expire on December 31, 2020 unless the Emergency Paid Sick Leave Act established by the FFCRA is extended beyond that date.
Certain protocols must be implemented if there is a COVID-19 workplace outbreak of three or more cases in a 14-day period. These include providing testing at no cost to employees during their working hours both immediately after an outbreak and one week later, excluding all employees exposed to or having COVID-19; investigating the exposure; reviewing the employer’s policies and controls in place and taking corrective action as necessary; documenting the investigation, review and corrective action taken; and notifying the local health department within 48 hours after knowledge of the outbreak. Employers cannot require a negative test in order for an employee to return to work. Additional measures must be taken in the event of a major workplace outbreak, defined as 20 or more cases within a 30-day period.
The failure to comply with the various requirements may expose an employer to a potentially serious and willful claim, and citations from Cal-OSHA. Guidance issued by Cal-OSHA regarding the regulations is expected soon.
The author would like to gratefully acknowledge the assistance of Joanne Warriner.
This publication is published by the law firm of Ervin Cohen & Jessup LLP. The publication is intended to present an overview of current legal trends; no article should be construed as representing advice on specific, individual legal matters, but rather as general commentary on the subject discussed. Your questions and comments are always welcome. Articles may be reprinted with permission. Copyright 2020. All rights reserved. ECJ is a registered service mark of Ervin Cohen & Jessup LLP. For information concerning this or other publications of the firm, or to advise us of an address change, please send your request to info@ecjlaw.com.
- Partner
Kelly Scott is a partner and head of the firm’s Employment Law Department.
Mr. Scott is also a member of the Litigation Department and has practiced law since 1987. His areas of practice include representation of employers in all ...
Subscribe
Recent Posts
- New Law Expands Posting Requirements Regarding Workers’ Compensation Rights | By: Cate A. Veeneman
- Entertainment Vendors Must Certify Safety Training for Employees By: Jared W. Slater
- California Employers Prohibited from Mandatory Religious or Political Meetings | By: Jared W. Slater
- California Expands Reach Of Crown Act to Prevent Discrimination Based On Natural and Protective Hairstyles | By: Cate A. Veeneman
- SB 1340 Allows Enforcement Of Local Employment Discrimination Laws | By: Kelly O. Scott
- Landlord: Look Out and Take Notice | By: Geoffrey M. Gold
- New Cal/OSHA Indoor Heat Standards Require New Prevention Measures and Written Prevention Plan | By: Joanne Warriner
- California Bans All Plastic Bags at Grocery Stores | By: Pooja S. Nair
- FTC’s Nationwide Ban on Non-Compete Agreements Stopped by Federal Court Ruling | By: Cate A. Veeneman
- Can the IRS Obtain a Receiver to Help Collect Taxes Owed? | By: Peter Davidson
Blogs
Contributors
Archives
- December 2024
- November 2024
- October 2024
- September 2024
- August 2024
- July 2024
- June 2024
- May 2024
- April 2024
- March 2024
- February 2024
- January 2024
- December 2023
- November 2023
- October 2023
- September 2023
- August 2023
- July 2023
- June 2023
- May 2023
- April 2023
- March 2023
- February 2023
- January 2023
- December 2022
- November 2022
- October 2022
- September 2022
- August 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
- December 2021
- November 2021
- October 2021
- September 2021
- August 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
- December 2020
- November 2020
- October 2020
- September 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- February 2020
- January 2020
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- July 2019
- June 2019
- May 2019
- March 2019
- February 2019
- January 2019
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- April 2018
- February 2018
- January 2018
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- July 2017
- June 2017
- May 2017
- April 2017
- March 2017
- February 2017
- January 2017
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- January 2016
- December 2015
- November 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
- December 2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- March 2014
- February 2014
- January 2014