California’s Office of Administrative Law (OAL) has approved a statewide emergency workplace safety regulation addressing COVID-19 (coronavirus), established by the state’s Occupational Safety and Health Standards Board. The approved rule took effect immediately, on November 30, 2020, and will remain in effect until October 2, 2021, according to the Board’s webpage for emergency rulemaking on COVID-19 prevention. Cal/OSHA is tasked with enforcing it. Here are the basics of the new rule:
Covered workers: All employees and workplaces are covered by the new rule except (1) workplaces with one employee who doesn’t have contact with any other people; (2) employees working from home; and (3) employees when covered by Cal/OSHA’s aerosol transmissible diseases standard (such as health care workers).
COVID-19 case: This term refers to a person who (1) tests positive for COVID-19; (2) is subject to a COVID-19-related isolation order by a local or state health official; or (3) dies due to COVID-19. As noted in the paragraph describing an “Exposed workplace” below, we recommend also considering a positive COVID-19 diagnosis from a licensed health care provider to be a COVID-19 case, consistent with a new California law that takes effect on January 1, 2021 (AB 685).
COVID-19 exposure: An employee is “exposed” to COVID-19 if they’ve been within six feet of a COVID-19 case for a cumulative total of 15 minutes or more in any 24-hour period during or overlapping with a “high-risk exposure period.” For people who develop COVID-19 symptoms, the high-risk exposure period starts two days before they develop symptoms and ends 10 days after the symptoms first appeared as long as at least 24 hours have passed with no fever and symptoms have improved. For people who test positive but never develop symptoms, the high-risk exposure period starts two days before their specimen was collected and ends 10 days after it was collected.
Exposed workplace: This includes any work location, work area, or common area at work where a COVID-19 case was present during the high-risk exposure period, including bathrooms, walkways, hallways, aisles, break areas, lunchrooms, and waiting areas. Effective January 1, 2021, this also includes the “worksite” of the person with COVID-19 as defined by a new California law, Labor Code section 6409.6(d)(5) (“the building, store, facility, agricultural field, or other location where a worker worked during the infectious period” but not “buildings, floors, or other locations of the employer” that a COVID-19 case didn’t enter). As we previously reported, this new Labor Code will require California employers to provide employees (as well as the employers of subcontracted employees) with specific notice after becoming aware of a potential COVID-19 exposure at work (AB 685). Most of Cal/OSHA’s new emergency regulation incorporates the requirements of Labor Code 6409.6, although surprisingly the regulation leaves out “[a] positive COVID-19 diagnosis from a licensed health care provider” as one of the scenarios that is a COVID-19 case. From a practical standpoint, if a health care provider makes a diagnosis, the individual will most likely be ordered by a state or local health official to self-isolate, thus creating a COVID-19 case under Cal/OSHA’s rule. Even if no such order exists, the approach that best protects other workers is to count a health care provider’s diagnosis as a COVID-19 case for purposes of determining that your workplace has been exposed to COVID-19. If in doubt as to whether to count an infection as a COVID-19 case, contact your Vigilant safety professional.
Written COVID-19 prevention program: Covered employers must create a written COVID-19 prevention program, either as a standalone document or by integrating it into their existing Illness and Injury Prevention Program (IIPP). The new written COVID-19 prevention program must include the following 11 elements:
- System for communicating. This includes asking employees to report COVID-19 symptoms, possible exposures, and possible workplace hazards. You must also describe procedures for accommodating workers who are at increased risk of illness from the virus; provide information about access to COVID-19 testing (and if testing is required by the regulation, inform affected employees of the reason for the test and possible consequences if they test positive); and communicate information about COVID-19 hazards and your COVID-19 policies and procedures not only to employees but to anyone else who comes within your workplace or in contact with it.
- Identification and evaluation of COVID-19 hazards. Employees and their authorized representatives (such as a union representative) must be allowed to participate in the process. You must establish a screening process (self-monitoring for symptoms is okay), develop a procedure for responding immediately when a COVID-19 case is present in the workplace, identify circumstances when potential exposures may occur, evaluate options for indoor workplaces to maximize outdoor air quantity and air filtration efficiency, review relevant COVID-19 guidance from state and local health authorities, evaluate COVID-19 prevention controls, and conduct periodic inspections.
- Investigating and responding to COVID-19 cases in the workplace. You must establish an effective investigation and response procedure to verify COVID-19 status, receive test results, be aware of symptoms, identify cases, and record them. If an infected person is present at the workplace, you’ll need to determine the date and time they were there, the date of the positive test or diagnosis, and the date any symptoms began. You’ll also need to determine who may have been exposed. Then give notice of the potential exposure within one business day (without revealing the identity of the infected person) to potentially exposed employees and their authorized representative (if applicable), as well as to any independent contractors or other employers present during the high-risk exposure period. You must offer free COVID-19 testing to all of your exposed employees during their work hours and explain available benefits. You must also investigate whether any workplace conditions could have contributed to the exposure and consider improved preventive measures going forward.
- Correction of COVID-19 hazards. You must implement policies and/or procedures to correct any COVID-19 hazards such as unhealthy conditions or work practices.
- Training and instruction. You must give employees information about your policies and procedures to protect them from COVID-19 hazards, as well as information about COVID-19 benefits to which they may be entitled by law (federal, state, or local), union contract, or company policy. You must also provide specific information about how the disease spreads, how to prevent transmission, how to recognize symptoms, and the importance of not coming to work with symptoms.
- Physical distancing. You must ensure employees are separated from other people by at least six feet unless it’s impossible to do so (in which case they must be kept as far apart as possible) or they’re only momentarily exposed while moving past each other.
- Face coverings. You must provide face coverings, ensure they’re clean and undamaged, and ensure employees wear them over their nose and mouth. Face coverings are required when employees are indoors, outdoors less than six feet away from another person, or when required by public health orders. Limited exceptions apply, such as when an employee is alone in a room, an employee is eating or drinking at work (provided workers are at least six feet apart and the outdoor air supply to indoor eating areas is maximized), or when a medical condition prevents use of the face covering. You must take additional protective measures (detailed in the rule) to minimize exposure from unmasked individuals, including members of the public.
- Other engineering controls, administrative controls, and personal protective equipment (PPE). You must take additional steps to minimize employees’ exposure to the virus. See Section (c)(9) of the rule for details. For example, if it isn’t possible to comply with the physical distancing requirements, you must install cleanable solid partitions to protect employees. The rule also addresses air ventilation, cleaning and disinfection, handwashing, and PPE.
- Reporting, recordkeeping, and access. You must report COVID-19 cases at the workplace to the local health department when required by law. You must continue to comply with the longstanding requirement to immediately report work-related serious illnesses or death (in this case, related to COVID-19) to Cal/OSHA. (See our Legal Guide, Catastrophe/Fatality Notification Procedure.) You must document your COVID-19 Prevention Program and make it available to employees, their authorized representatives, and Cal/OSHA immediately upon request. You must also keep records of any employee COVID-19 cases, including their name, contact information, occupation, work location, date they were most recently at the workplace, and the date of their positive COVID-19 test (if any). Medical information must be kept confidential, but you must make your records available to employees, authorized representatives, and as otherwise required by law (minus any personal identifying information).
- Exclusion of COVID-19 cases. You must exclude COVID-19 cases from the workplace until they meet the return-to-work criteria described below. For employees who were exposed but haven’t yet developed symptoms or tested positive, you must exclude them for 14 days after the last known exposure to COVID-19 (to see if they develop symptoms). Either way, if the exposure was work-related and the employees are otherwise able and available to work, you must maintain their pay, seniority, and all other rights and benefits, including the right to return to work, as if they never left. You may use company-provided paid sick leave and consider benefit payments from public sources in deciding how to maintain these rights, to the extent permitted by law and when not covered by workers’ compensation. You must give employees information on these benefits at the time you exclude them from work. However, if you temporarily reassign employees to work where they don’t have any contact with other people, then you don’t have to exclude them from work unless the local health department has ordered them to be excluded or isolated.
- Return to work criteria. COVID-19 cases who develop symptoms cannot return to work until all of the following are true: (a) at least 24 hours have passed since they last had a fever of 100.4 or higher, without the use of fever-reducing medications; (b) their symptoms have improved; and (c) at least 10 days have passed since their symptoms first appeared. Infected employees who test positive but never develop symptoms must remain away from work for at least 10 days since the first specimen collection that resulted in a positive test. You cannot require a negative COVID-19 test as a condition of returning to work. You must also comply with any isolation or quarantine orders by a local or state health official; if no duration is specified, allow 10 days for isolation (i.e., for an employee who was actually infected) and 14 days for quarantine (i.e., for an employee who was exposed, to see if symptoms develop).
Multiple COVID-19 infections and outbreaks: You must follow special reporting and investigation protocols if a local health department identifies your workplace as the location of a COVID-19 outbreak or if there are three or more COVID-19 cases in an exposed workplace within a 14-day period. You must also provide free COVID-19 testing during their work hours to all your employees at the exposed workplace who were present during the outbreak period or the 14-day period. Testing must occur immediately and then at least once a week thereafter, as directed by the local health department or Cal/OSHA. If you become aware (or reasonably should be aware) of three or more COVID-19 cases in your workplace within a 14-day period, you must contact the local health department immediately but within no more than 48 hours and continue to update them if new COVID-19 cases occur at the workplace.
Major COVID-19 outbreaks: You must take even more steps in addition to those noted above if there are 20 or more COVID-19 cases in an exposed workplace within a 30-day period. Testing of all your employees at the exposed workplace must take place twice a week. More stringent air filtration requirements apply and you must evaluate the need for creating a new respiratory protection program or improving an existing program. You must also evaluate whether to cease some or all operations at the workplace until the COVID-19 hazards have been corrected.
COVID-19 prevention in employer-provided housing. The rule establishes new requirements for ensuring the safety of workers and their families in employer-provided housing. The rule covers priority assignment of housing, physical distancing, cleaning and disinfecting, screening for symptoms, testing for COVID-19, and isolation of COVID-19 cases and exposed individuals.
COVID-19 prevention in employer-provided transportation to and from work. The rule establishes safety protocols for employer-provided transportation to and from work, including ride-share vans, shuttles, car-pools, and private charter buses. The rule addresses priority assignment of shared transportation, physical distancing and face coverings in shared vehicles, screening for symptoms, cleaning and disinfecting, ventilation, and the use of hand sanitizer.
Tips: Most of this new COVID-19 workplace safety rule covers protocols that you should already have in place, such as providing face coverings, enforcing physical distancing, conducting training, and cleaning and sanitizing the workplace. This rule provides a structure for you to review your existing procedures, beef them up if needed, and document them. Read the new rule carefully and contact your Vigilant safety professional for guidance if you have questions on how to apply it in your workplace. Also check out Cal/OSHA's COVID-19 guidance and resources. The agency has posted FAQs and a one-page fact sheet on the new rule as well as a model COVID-19 prevention program.