On January 8, 2021, Cal/OSHA significantly expanded the FAQs for California’s emergency temporary standard addressing COVID-19 workplace safety. As we previously reported, the standard took effect on November 30, 2020, and will remain in effect until October 2, 2021. Some of the key clarifications are:
Enforcement: Until February 1, 2021, Cal/OSHA will cite noncomplying employers but won’t impose monetary penalties as long as the violations wouldn’t have been violations under existing workplace safety requirements (such as Injury and Illness Prevention Programs or respiratory protection programs) that were in effect before November 30, 2020.
Testing: The requirement to offer testing at no cost during working hours to potentially exposed employees means that you must pay employees wages for the time spent taking the test. A test doesn’t necessarily need to occur during normal working hours. If you send workers to an offsite location for testing, Cal/OSHA says you must reimburse them for travel costs (such as mileage or public transportation) and pay for their travel time to and from the testing site. If employees refuse to be tested, you don’t have to force them to do so. (We recommend documenting your offer of the free testing, however.)
Exposed workplace: In determining whether an outbreak (three or more COVID-19 cases in a 14-day period) or major outbreak (20 or more COVID-19 cases within a 30-day period) has occurred, a COVID-19 case doesn’t count if the person is wearing a mask and they only “momentarily pass through the same space without interacting or congregating” with others. Also if you run non-overlapping shifts and the workplace is well-ventilated, you may consider each shift to be a separate exposed workplace.
Exclusion of COVID-19 cases: Cal/OSHA has reduced the mandatory 14-day quarantine period for exposed workers to 10 days, consistent with the current California Department of Public Health quarantine guidance.
Physical distancing: If it’s not possible to keep workers at least 6 feet from other people, you must install cleanable solid partitions. However, unless the partitions completely enclose the worker (thus eliminating all risk of transmission), workers within 6 feet of each other are still considered to be in close contact for purposes of determining exposure to COVID-19, despite the partitions.
Paid leave: The requirement to pay workers who are excluded from the workplace due to a COVID-19 workplace exposure is generally expected to last a maximum of 14 days; Cal/OSHA says if they’re gone longer than that, it could indicate they’re actually not able to work. (Contact your Vigilant Law Group employment attorney before deciding to cut off pay, however.)
COVID-19 prevention in employer-provided housing: The FAQs address the option of providing hotel rooms to workers who need to isolate after contracting the virus.
Tips: Cal/OSHA says it will continue to update the FAQs as needed. The agency is developing a webinar on the COVID-19 workplace safety rule and will also post any new or updated materials on Cal/OSHA’s COVID-19 webpage. Questions? Contact your Vigilant safety professional.