By Eric J. Conn, Andrew J. Sommer, and Beeta B. Lashkari

On November 30, 2020, Cal/OSHA issued its COVID-19 Emergency Temporary Standard and it became effective immediately — all provisions.  Cal/OSHA has signaled that there will be some early enforcement discretion, except for actions thought already to be required by the Injury Illness Prevention Plan regulation and other pre-existing regulations.  But getting into compliance with this burdensome new rule should be a high priority.

And how to get into compliance, or at least what Cal/OSHA is expecting from California employers, has gotten a little clearer. As promised by Division Chief Doug Parker and Deputy Chief of Standards Eric Berg, we have a new set of Cal/OSHA FAQs about the agency’s COVID-19 Emergency Temporary Standard.

The FAQs were announced by Cal/OSHA in a communication confirming that the agency would continue to issue guidance as needed, and continue to implement the formal Advisory Committee Process through which improvements and fixes to the rule may be adopted.  Here’s an excerpt from the communication:

“There are now 69 FAQs with seven additional subheadings to help clarify and answer questions that we have received about the COVID-19 Prevention ETS …. We will continue to update the FAQs as needed in the future….”

And here is a link to full set of FAQs Cal/OSHA has issued about the rule.

Based on our review, we think these FAQs provide some important clarifications about the ETS, and in some instances, essentially rewrite the regulatory language (mostly in helpful ways).  But it is also our view that the FAQs do not appear to be as flexible as the agency had signaled in some informal guidance (e.g., regarding how to determine the scope of an outbreak), and it does not address several important questions (e.g., what are employers options and obligations for employees who decline testing required by the rule).  Here are some of the new FAQs that we thought were particularly noteworthy:

Testing Related FAQs:

Q: What do employers do if employees refuse to take the tests required by various provisions of the emergency regulations?

A:  An employer that offers a test at no cost to the employee does not violate the regulation if an employee declines or refuses to take it. The employer is not required to obtain a signed declination from employees who refuse to take a COVID-19 test offered by the employer.

Q: Is there a difference between “offer testing” and “provide testing” in the ETS?

A: No. The meaning is the same for both terms.

Q: Does the employer have to provide testing to employees at their work location?

A: No. The employer may provide testing to employees at a testing site separate from their work location.

Q: Can employers send their employees to a free testing site for testing (e.g., run by their county) and is this considered to be “at no cost to employees?”

A: Yes, as long as employees incur no cost for the testing. Ensuring that an employee does not incur costs would include paying employees’ wages for their time to get tested, as well as travel time to and from the testing site. It would also include reimbursing employees for travel costs to the testing site (e.g., mileage or public transportation costs).

Q: What does “during their working hours” or “during employees’ working hours” mean, in relation to providing COVID-19 testing?

A: These terms, as used in the regulations, mean that the test must be provided during paid time. While the employee must be compensated for their time and travel expenses, the employer is not obligated to provide the test during the employee’s normal working hours.

Outbreak Related FAQs:

Q: How does an employer determine what part of a workplace is an “exposed workplace” for purposes of determining if an outbreak has occurred and who must be tested?

A: An “exposed workplace” is defined at section 3205(b)(7) and includes “any work location, working area or common area used or accessed by a COVID-19 case during the ‘high-risk period.’” For purposes of determining whether an outbreak has occurred, there must be three COVID-19 cases, all of whom worked in, used, or accessed the same “work location, working area or common area used or accessed” in a 14-day period. If one of the three cases is in a different work location within an establishment, an outbreak has not occurred.
Areas a COVID-19 case passed through (i.e., travelled through en route to a work area and did not stop or stopped momentarily while wearing a face covering) are not considered in determining the area of an “exposed workplace.” For example, if all three COVID-19 cases have been in a common area, but one of the cases only passed through while wearing a face covering, an outbreak has not occurred for purposes of the ETS.

Q: Can an employer separate employees into cohorts to reduce the likelihood of COVID-19 cases occurring in the same work locations/areas?

A: Yes, that is an acceptable strategy to reduce risk and reduce testing obligations. The ETS requirements must still be implemented in the exposed workplace.

Q: For employers who have several non-overlapping work shifts at a facility, can each shift be considered as a separate “exposed workplace”, as defined by the ETS?

A: If the facility is well ventilated and the cleaning and disinfection requirements of the ETS are met between or before shift changes, each shift may be considered as a separate “exposed workplace.”

Q: How can an employer measure the 14- or 30-day period in which to look for positive cases to determine if there has been an outbreak or major outbreak?

A: The employer should look to the testing date of the cases. Any cases for which the tests occurred within a 14-day period would be reviewed to see if the other criteria for an outbreak have been met.

Pay Continuation Related FAQs:

Q: How long does an employee with COVID-19 exposure, or who tests positive for COVID-19 from the workplace, receive pay while excluded from the workplace?

A: An employee would typically receive pay for the period the employee is quarantined, which could be up to 14 days (see above for potential impact of EO N-84-20). If an employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness. . The employee, however, may be eligible for temporary disability or other benefits.

Q: Must an employer exclude an employee who claims a COVID-19 workplace exposure?

A: An employer should take any reports seriously and should investigate any evidence of an exposure. It is ultimately the employer’s responsibility to determine if an exposure occurred.

Q: How are employers proving that a COVID-19 exposure is not work related and rebutting the presumption under SB 1159 related?

A: SB 1159 provides a rebuttable presumption for certain workers and workplaces that an employee’s COVID-19-related illness is an occupational injury entitling the employee to workers’ compensation benefits. Rebutting that presumption and proving that COVID-19 exposure is not work related to avoid the ETS’ exclusion pay requirement involve an employer conducting comparable investigations and producing comparable evidence to show it is more likely than not that an employee’s COVID-19 exposure did not occur in the workplace.  

Q: Can an employee receive both temporary disability benefits under workers’ compensation and receive their regular wages (or a portion of them) because they are excluded for work under section 3205(c)(10)(C)

A: No. Cal/OSHA does not consider an employee receiving workers’ compensation temporary disability benefits for wages lost during the period in which they are excluded from the workplace to be “able and available to work” within the meaning of section 3205(c)(10)(C). Therefore, an employee cannot receive both types of benefits.

Return to Work Related FAQs:

Q: What are the criteria for an employee exposed to a COVID-19 case in the workplace to return to work?

A: Applying Executive Order N-84-20 and current CDPH quarantine guidance, while a 14-day quarantine is recommended, an exposed employee who does not develop symptoms of COVID-19 may return to work after 10 days have passed since the date of last known exposure. Additionally, CDPH has provided guidance permitting health care, emergency response and social services workers to return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage.”

Q: What should an employer consider before seeking a waiver from Cal/OSHA from the return-to-work requirements of section 3205(c)(11)?

A: The ETS provides that employers can request a waiver of the requirement to quarantine/isolate exposed or COVID-19 positive employees from the workplace if doing so would create an undue risk to public health and safety. Cal/OSHA will not grant a waiver in violation of any order issued by a local or state health official pertaining to isolation or quarantine. An operation must provide goods or services, the interruption of which would cause an undue risk to a community’s health and safety in order to qualify. This exception is narrower than the definition of “critical infrastructure,” though such operations may qualify if there is an adverse impact on a community’s health and safety. A facility must be facing a potential staffing shortage based on actual COVID-19 cases or exposures in order to qualify for a waiver. Requests should not be made in anticipation of a future outbreak.

Other Notable FAQs:

Q: How will Cal/OSHA enforce the ETS as employers implement the rule? 

A: All employers are expected to comply with all provisions of the ETS, and Cal/OSHA will enforce the ETS, taking into consideration an employer’s good faith efforts to comply. In addition to consideration of an employer’s good faith effort to comply before issuing a citation, for the first two months the rules are in effect (i.e., through  February 1, 2021), Cal/OSHA will cite but not assess monetary penalties for violations of the ETS that would not have been considered a violation of the employer’s Injury and Illness Prevention Program, respiratory protection program or other applicable Cal/OSHA standard in place prior to November 30, 2020. This brief period of relief from monetary penalties will allow Cal/OSHA and employers to focus on obtaining compliance, while ensuring workers still benefit from the protections in the ETS. This policy will not apply where an employer fails or refuses to abate a violation of the ETS Cal/OSHA has identified, or in the case of imminent hazards.

Q: What is a “fixed work location” that would require solid partitions?

A: A “fixed work location” is a workstation where a worker is assigned to work with minimal movement from that location for extended periods of time. Examples include cashiers, greeters, receptionists, workers at desks or in cubicles, and food production line workers. It does not include construction or maintenance work.

Q: Once an employee is vaccinated, must the ETS still be followed for vaccinated persons?

A: For now, all prevention measures must continue to be implemented. The impact of vaccines will likely be addressed in a future revision to the ETS.

For more details, plan to join Andrew Sommer, Fred Walter and Megan Shaked on Tuesday, January 26th at 12 PM PT / 3 PM ET for a complimentary webinar: Cal/OSHA’s COVID-19 Emergency Temporary Standard.  This program will provide an overview of the regulation, existing and anticipated guidance provided by Cal/OSHA about it, as well as enforcement efforts by Cal/OSHA to date.  We will also examine the interplay between the emergency temporary standard and other new, related California legislation, including AB 685 and SB 1159.  The agenda includes:

• An overview of the ETS and its compliance obligations
• Frequently Asked Questions about the ETS
• Recent Cal/OSHA COVID-19 enforcement trend
• Common pitfalls from trickier sections of the regulation, such as regarding outbreaks and testing

Click here to register for the Cal/OSHA COVID-19 ETS webinar.