By Conn Maciel Carey’s COVID-19 Task Force

Not to be outdone by Virginia OSHA, Oregon OSHA, or Michigan OSHA, Cal/OSHA is on the precipice of issuing an onerous COVID-19 specific regulation that is expected to be issued, with all provisions immediately effective, next week.  Below is detailed summary of how we got here, as well as an outline of what the California rule will require.

On November 19, 2020, the California’s Occupational Safety and Health Standards Board (“Board”) voted unanimously to adopt an Emergency COVID-19 Prevention Rule following a contentious public hearing with over 500 participants in attendance (albeit virtually).  The Emergency Rule has been presented to California’s Office of Administrative Law (“OAL”) for approval and publication. OAL has ten days to approve the Rule; if approved, the Rule will become immediately effective, likely next Monday, November 30^th.  The Rule brings with it a combination of requirements overlapping with and duplicative of already-existing state and county requirements applicable to employers, as well as a number of new and, in some cases, very burdensome, compliance obligations.

The Board’s emergency rulemaking was triggered last May with the submission of a Petition for an emergency rulemaking filed by worker advocacy group WorkSafe and National Lawyers’ Guild, Labor & Employment Committee.  The Petition requested the Board amend Title 8 standards to create two new regulations – the first, a temporary emergency standard that would provide specific protections to California employees who may experience exposure to COVID-19, but who are not already covered by Cal/OSHA’s existing Aerosol Transmissible Diseases standard (section 5199, which applies generally to healthcare employers); and the second, a regular rulemaking for a permanent infectious diseases standard, including novel pathogens such as SARS-CoV-2.  Note that emergency rulemakings are rare and must meet a very high threshold designed to allow this abbreviated process; only when a true emergency necessitates this process.  Here is a very simplified flowchart of the emergency standards rulemaking process.

Interestingly, the Standard Board’s staff found that a new COVID-19 rule was unnecessary because much of the proposed requirements recommended by WorkSafe’s Petition are already addressed under Cal/OSHA’s Injury and Illness Prevention Program Standard (“IIPP”), and therefore, recommended that the Petition be denied.  DOSH staff, however, recommended that the Petition be approved, finding that an emergency regulation is warranted by the COVID-19 public health crisis and that the agency’s enforcement efforts would benefit from a specific regulatory mandate related to COVID-19.

On September 17^th, the Standards Board accepted DOSH’s recommendation, finding that an emergency regulation “would strengthen, rather than complicate, [DOSH’s] enforcement efforts[,]” and issued a decision granting (in part) WorkSafe’s Petition.  While the Board did not agree to implement the specific proposed emergency regulation advanced by WorkSafe, it did instruct DOSH to work with Board staff to submit a new proposal for an emergency regulation by no later than November 19, 2020.

Accordingly, the Board published its proposed emergency rule late in the day on Thursday, November 12, 2020, giving the public only five days (and barely that) to comment on the 100-page rulemaking package.  Conn Maciel Carey worked with a coalition of California and national employers to quickly evaluate the proposed emergency rule and develop comments that raised a number of serious concerns, not only about the substance of the rule, but also about the extremely rushed nature of the rulemaking process, which afforded the regulated community no real opportunity for meaningful input, and the Board essentially no opportunity to consider comments.

Nonetheless, after a contentious public hearing last Thursday, the Board unanimously voted to adopt the Emergency Rule and forwarded it to the OAL, California final gatekeeper for new regulations, for final approval and publication. On behalf of our coalition, Conn Maciel today submitted an additional set of comments to the OAL focused on the inappropriate and impermissible restrictions that have prevented stakeholder participation in this emergency rulemaking process.

[UPDATE – As expected, late in the day on November 30th, California’s OAL officially approved the emergency rule, making all provisions immediately effective.  Here’s an additional article that summarizes what will happen next with the rule.]

To help California employers prepare for the likely issuance of this Rule by next week, below is an outline of the Rule and a detailed list of the compliance obligations imposed on most California employers:

• Executive Summary

At the heart of this emergency rulemaking is the requirement that employers develop a written COVID-19 prevention program consisting of well-established elements, such as physical distancing; face coverings; engineering and administrative controls; PPE; excluding from the workplace positive and exposed employees; return to work protocols; training; and employee communication.  Consistent with California’s Injury and Illness Prevention Program requirements, employers must also conduct workplace COVID-19 hazard assessments, adopt procedures for investigating and responding to every positive case, and develop procedures for correcting the hazards they identify.  There are also detailed reporting and recordkeeping mandates.

Additionally, California has adopted a series of unique requirements in the event of outbreaks (3 or more cases in 14 days) and major outbreaks (20 or more cases in 30 days), which include logistically challenging mandatory testing and mitigation measures.

• COVID-19 Prevention Program (CPP)

Establish, implement and maintain a written COVID-19 prevention program which may but is not required to be integrated into the Illness and Injury Prevention Program.

The 11 required elements an employer’s CPP include:

• • System for Communicating.  Employers must do the following in a form that is readily understandable by employees:
    • Ask employees to report, without fear of reprisal, symptoms, possible exposures and possible COVID hazards in the workplace.
    • Describe procedures or policies for accommodating employees with medical or other conditions that put them at increased risk.
    • Provide info about access to COVID testing.  If testing is required, inform affected employees of the reason for the testing and possible consequences of a positive test.
    • Communicate info about COVID hazards and the employer’s policies and procedures to protect them.
  • Identification and Evaluation of COVID-19 Hazards.
    • Allow for employee and authorized employee representative participation in the identification and evaluation of COVID-19 hazards.
    • Develop and implement a process for screening employees for and responding to employees with COVID-19 symptoms.
    • Develop SOP to respond immediately to individuals at the workplace who are a COVID-19 case to prevent/reduce  transmission of COVID-19 in the workplace.
    • Conduct a workplace-specific assessment of all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards.
    • Evaluate, for indoor workplaces, how to maximize the quantity of outdoor air and whether it is possible to increase filtration efficiency to the highest level compatible with the existing ventilation system.
    • Review applicable orders and guidance from the State of California and the local health department, including general and industry-specific guidance.
    • Evaluate existing COVID-19 prevention controls at the workplace and the need for different or additional controls.
    • Conduct periodic inspections as needed to identify unhealthy conditions, work practices, and work procedures related to COVID-19 and to ensure compliance with employers’ COVID-19 policies and procedures.
  • Investigating and Responding to COVID-19 Cases.  Adopt an effective procedure to investigate and respond to COVID-19 cases in the workplace, that includes procedures for verifying COVID-19 case status, receiving information regarding COVID-19 test results and onset of COVID-19 symptoms, and identifying and recording COVID-19 cases.  Take following actions in response to case:
    • Determine the day and time the COVID-19 case was last present and, to the extent possible, the date of the positive COVID-19 test(s) and/or diagnosis, and the date the COVID-19 case first had one or more COVID-19 symptoms, if any were experienced.
    • Determine who may have had a COVID-19 exposure.
    • Give notice of the potential COVID-19 exposure, within one business day, in a way that does not reveal any personal identifying information of the COVID-19 case, to the following:
      • All employees who may have had COVID-19 exposure and their authorized representatives.
      • Independent contractors and other employers present at the workplace during the high-risk exposure period.
    • Offer COVID-19 testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace and provide them with the information on benefits described in training and exclusion rules.
    • Investigate whether any workplace conditions could have contributed to the risk of COVID-19 exposure and what could be done to reduce exposure to COVID-19 hazards
  • Correction of Hazards.  Implement effective policies and/or procedures for correcting unsafe or unhealthy conditions, work practices, policies and procedures in a timely manner based on the severity of the hazard, including implementing controls and/or policies and procedures in response to the required evaluations conducted and implementing physical distancing, face coverings and/or other controls.
  • Training.  Provide training to employees on the following topics:
    • The employer’s COVID-19 policies and procedures to protect employees from COVID-19 hazards.
    • Information regarding COVID-19-related benefits to which the employee may be entitled.
    • How COVID-19 spreads.
    • Methods of physical distancing of at least six feet and the importance of combining distancing with face coverings.
    • That particles containing the virus can travel more than six feet, especially indoors, so distancing must be combined with other controls, including face coverings and hand hygiene, to be effective.
    • The importance of frequent hand washing with soap and water for at least 20 seconds and using hand sanitizer when employees do not have immediate access to a sink or hand washing facility, and that hand sanitizer does not work if the hands are soiled.
    • Proper use of face coverings and the fact that face coverings are not respiratory protective equipment.
    • COVID-19 symptoms, and the importance of not coming to work and obtaining a COVID-19 test if the employee has COVID-19 symptoms.
  • Physical Distancing.  All employees must be separated by at least 6 feet, except where it is demonstrated to be impossible (and except for momentary exposures while persons are moving).  Separation may be achieved through recognized means such as telework, visual cues and floor markings, staggered shifts and breaks, and adjusted work practices, such as reduced production speeds.  Maintain as much space as possible when 6 feet of separation is not possible.
  • Face Coverings.  Provide face coverings and ensure they are worn over nose and mouth when indoors and outdoors when less than 6 feet apart, and that they are clean and undamaged.  Face shields are not a replacement but may be used in addition.  There are a number of exceptions to this requirement, including if an employee is alone in a room.  Employees may remove face coverings to eat or drink, provided they are 6 feet apart and outside air supply has been maximized to the extent possible.
    • Adopt measures (signage, recordings, etc.) to advise non-employees of face covering requirements.
    • Develop policies and procedures to minimize expose to individuals not wearing a face covering.
  • Other Engineering & Admin Controls & PPE
    • Barriers.  Install cleanable solid partitions where it not possible to maintain 6 feet of separation.
    • Ventilation.  Maximize the quantity of outside air provided to the extent feasible, except when the US EPA Air Quality Index is greater than 100 for any pollutant or if opening windows or letting in outdoor air by other means would cause a hazard to employees, for instance from excessive heat or cold.
    • Sanitation.
      • Identify and regularly clean and disinfect high-touch surfaces, informing employees of protocols and frequency of same.
      • Prohibit the sharing of equipment and minimize when that is not possible.
      • Clean and disinfect areas, material and equipment used by COVID positive individual during high-risk exposure period.
    • Handwashing.  Evaluate handwashing facilities, determine the need for additional facilities, encourage and allow time for employee handwashing (encouraging them to do so for at least 20 seconds), and provide employees with an effective hand sanitizer.
    • PPE.
      • Evaluate the need for personal protective equipment to prevent exposure to COVID-19 hazards, such as gloves, goggles, and face shields, and provide such personal protective equipment as needed.
      • Evaluate the need for respiratory protection when the physical distancing is not feasible or are not maintained.
      • Provide and ensure use of respirators in accordance with Cal-OSHA standards when deemed necessary by the Division through the Issuance of Order to Take Special Action.
      • Provide and ensure use of eye protection and respiratory protection in accordance with section 5144 when employees are exposed to procedures that aerosolize fluids.
  • Reporting, Recordkeeping & Access
    • Report information about COVID-19 cases at the workplace to the local health department whenever required by law, and provide any related information requested by the local health department.
    • Report immediately to the Division any COVID-19-related serious illnesses or death, as required by the Cal-OSHA reporting rule, of an employee occurring in a place of employment or in connection with any employment.
    • Maintain records of the steps taken to implement the written COVID-19 Prevention Program.
    • The written COVID-19 Prevention Program shall be made available at the workplace to employees, authorized employee representatives, and to representatives of the Division immediately upon request.
    • Keep a record of and track all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. Medical information shall be kept confidential.  The information shall be made available to employees, authorized employee representatives, or as otherwise required by law, with personal identifying information removed.

• • Exclusion of COVID-19 Cases.
    • Ensure that COVID-19 cases are excluded from the workplace until the return to work requirements are met.
    • Exclude employees with COVID-19 exposure from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case.
    • For employees excluded from work under these rules and otherwise able and available to work, employers shall continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, 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, where permitted by law and when not covered by workers’ compensation.
      • EXCEPTION 1: Salary continuation does not apply to any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission. EXCEPTION 2: Salary continuation does not apply where the employer demonstrates that the COVID-19 exposure is not work related.

• • Return to Work Criteria.
    • COVID-19 cases with COVID-19 symptoms shall not return to work until:
      • At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
      • COVID-19 symptoms have improved; and
    • At least 10 days have passed since COVID-19 symptoms first appeared.
  • COVID-19 cases who tested positive but never developed COVID-19 symptoms shall not return to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.
  • A negative COVID-19 test shall not be required for an employee to return to work.

 

• Multiple COVID-19 Infections and COVID-19 Outbreaks
  • Criteria
    • When workplace is so designated by health department; or
    • When there are 3 or more cases in a 14-day period; and
    • Until there are no new cases for a 14-day period.
  • Required Actions

COVID-19 testing.

• • • Provide COVID-19 testing to all employees (at no cost, during working time) at the exposed workplace except for employees who were not present during the period of an outbreak identified by a local health department or the relevant 14-day period(s).
    • Testing shall consist of the following:
      • Immediately upon being designated test all employees in the exposed workplace and then tested again one week later.
      • After the first two COVID-19 tests, provide continuous COVID-19 testing of employees who remain at the workplace at least once per week, or more frequently if recommended by the local health department, until there are no new cases for a 14-day period.
      • Provide additional testing when deemed necessary by the Division through the Issuance of Order to Take Special Action.

Exclusion.  Ensure COVID-19 cases and employees who had COVID-19 exposure are excluded from the workplace in accordance with the exclusion and RTW sections of the employer’s CPP and local health officer orders if applicable

Investigation and Correction. Investigate immediately and determine possible workplace related factors that contributed to the COVID-19 outbreak by reviewing potentially relevant COVID-19 policies, procedures, and controls and implement changes as needed to prevent further spread of COVID-19.  Document said review.

• • • Investigate new or unabated COVID-19 hazards including (1) leave policies and practices and whether employees are discouraged from remaining home when sick; (2) COVID-19 testing policies; (3) insufficient outdoor air; (4) insufficient air filtration; and (5) lack of physical distancing.
    • Update the review every thirty days that the outbreak continues, in response to new information or to new or previously unrecognized COVID-19 hazards, or when otherwise necessary.
    • Implement changes to reduce the transmission of COVID-19 based on the investigation and review and consider (1) moving indoor tasks outdoors or having them performed remotely, (2) increasing outdoor air supply when work is done indoors, (3) improving air filtration, (4) increasing physical distancing as much as possible, (5) respiratory protection, and (6) other applicable controls.

Notifications to Local Health Department.

• • • Immediately but no longer than 48 hours after the employer knows, or with diligent inquiry would have known, of three or more COVID-19 cases for guidance on preventing the further spread of COVID-19 within the workplace.
    • Provide to the local health department the total number of COVID-19 cases and for each COVID-19 case, the name, contact information, occupation, workplace location, business address, the hospitalization and/or fatality status, and NAICS Code, and any other information requested by the local health department.
    • Continue to give notice to the local health department of any subsequent COVID-19 cases at the workplace.
• Major COVID-19 Outbreaks
  • Criteria
    • When there are 20 or more cases in an exposed workplace in 30 days; and
    • Until there are no new cases for 14 days.
  • Required Actions
    • COVID-19 testing. Provide twice a week COVID-19 testing (at no cost during working hours), or more frequently if recommended by the local health department to all employees present at the exposed workplace during the relevant 30-day period(s) and who remain at the workplace.
    • Exclusion.  Ensure COVID-19 cases and employees with COVID-19 exposure are excluded from the workplace in accordance with subsections 3205(c)(10) and (c)(11) and any relevant local health department orders.
    • Hazard Investigation. Conduct an investigation and implement changes, if any, as provided in the CPP.
    • Ventilation/Air Quality.
      • Filter recirculated air with Minimum Efficiency Reporting Value (MERV) 13 or higher efficiency filters if compatible with the ventilation system.
      • If MERV-13 or higher filters are not compatible with the ventilation system, use filters with the highest compatible filtering efficiency.
      • Evaluate whether portable or mounted HEPA filtration units, or other air cleaning systems would reduce the risk of transmission and implement their use to the degree feasible.
      • Determine the need for a respiratory protection program or changes to an existing respiratory protection program under section 5144 to address COVID-19 hazards.
    • Closure.  Evaluate whether to halt some or all operations at the workplace until COVID-19 hazards have been corrected.
    • Additional Controls.  Implement any other control measures deemed necessary by the Division through the Issuance of Order to Take Special Action.
    • Notifications.  Same as non-major outbreak section.

Assuming the emergency rule is approved by the OAL, there is some light at the end of the tunnel in that, during the November 19, 2020 hearing, the Standards Board asked DOSH to convene an Advisory Committee meeting as early as the first week of December to start working on improvements to the rule.  As such, the best opportunity for employers to influence this emergency rule will be coming soon.  Conn Maciel Carey plans to participate in the Advisory Committee process and will continue to monitor this developing situation.

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Conn Maciel Carey LLP

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Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace.  Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.