Key Takeaways

• In response to the rising number of reported COVID-19 cases in California, California’s Division of Occupational Safety and Health Standards Board adopted emergency temporary standards (ETS), which went into effect immediately on November 30, 2020

• The ETS introduces significant new requirements for covered employers to implement specific written COVID-19 Prevention Plans, provide training to employees related to COVID-19 prevention, and provide paid leave to individuals due to COVID-19 exposure

• One of the most notable aspects of the ETS is that it requires employers to provide testing to employees at no cost during work hours

In response to the rising number of reported COVID-19 cases in California, California’s Division of Occupational Safety and Health Standards Board adopted emergency temporary standards (ETS), which went into effect immediately on November 30, 2020.

The ETS introduces significant new requirements for covered employers to implement specific written COVID-19 Prevention Plans, provide training to employees related to COVID-19 prevention, and provide paid leave to individuals due to COVID-19 exposure. The speed with which these measures were implemented left many employers scrambling to work through the myriad of new requirements. In an effort to provide clarity, on December 2, 2020, Cal/OSHA issued Frequently Asked Questions (FAQs) and sample documents.

Below is a summary of the ETS and the most recent guidance from Cal/OSHA.

Covered Employers

The ETS casts a wide net and applies to all California employers and employees except:

• Employers with one employee who does not have contact with others
• Employees who are working from home
• Employees who are already covered under Cal/OSHA’s Aerosol Transmissible Diseases standard

COVID-19 Prevention Plan

The new ETS requires employers to develop a written COVID-19 Prevention Plan or incorporate a plan into its existing Injury and Illness Prevention Program (IIPP). As outlined in Cal/OSHA’s recent FAQs, the employer must implement the following in accordance with their written program:

• Communication to employees about the employer’s COVID-19 prevention procedures
• Identify, evaluate, and correct COVID-19 hazards
• Physical distancing of at least six feet unless it is not possible
• Use of face coverings
• Use engineering controls, administrative controls, and personal protective equipment as required to reduce transmission risk
• Procedures to investigate and respond to COVID-19 cases in the workplace
• Provide COVID-19 training to employees
• Provide testing to employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas
• Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk
• Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required

Workplace COVID-19 Outbreaks

The ETS puts into place specific requirements following an “outbreak” of COVID-19 in the workplace. An “outbreak” is defined as (1) three or more COVID-19 cases within a 14-day period at a single location, or (2) when a local health department identifies a place of employment as the location of a COVID-19 outbreak. In the event of an outbreak, employers must:

• Immediately provide testing and continue testing at least weekly until the workplace no longer qualifies as an outbreak (see below)
• Exclude from the workplace all employees who test positive for or who were exposed to COVID-19
• Investigate the outbreak and implement any necessary corrective action
• Document the investigation pursuant to the standards and any corrective action implemented as a result
• Notify the local health department within 48 hours of notice of the outbreak

However, in the event of a “major outbreak” (defined as 20 or more COVID-19 cases in an “exposed workplace” within a 30-day period), employers must also:

• Provide testing to all employees in the exposed workplace at least twice weekly, and exclude positive cases and exposures until there are no new cases detected for a 14-day period
• Implement ventilation changes to mechanical ventilation systems including increasing filtration efficiency to at least MERV-13, or the highest efficiency compatible with the ventilation system
• Evaluate whether HEPA air filtration units are needed in poorly ventilated areas
• Determine the need for a respiratory protection program or changes to an existing respiratory protection program under section 5144 to address COVID-19 hazards
• Consider halting all or part of operations to control the virus

Testing Requirements

One of the most notable aspects of the ETS is that it requires employers to provide testing to employees at no cost during work hours. Specifically, as touched on above, testing requirements vary depending on the scope of infections:

• Non-outbreak exposure of COVID-19―employers must offer testing at no cost to any employee potentially exposed to COVID-19 in the workplace, and provide applicable benefit information. The time an employee spends being tested is considered compensable hours worked.
• Outbreak of COVID-19―employer must, in addition to requirements for a non-outbreak, immediately provide testing to all employees in the exposed workplace, and exclude positive cases and exposures from work. They must also repeat the testing one week later, and continue testing employees at least weekly until the workplace no longer qualifies as an outbreak.
• Major outbreak of COVID-19―employer must, in addition to requirements for a non-outbreak, provide testing to all employees in the exposed workplace at least twice weekly, and exclude positive cases and exposures until there are no new cases detected for a 14-day period.

Isolation/Quarantine Following Exposure

Employers must exclude employees who test positive for COVID-19, or have had COVID-19 exposure from the workplace. Employees who test positive may return to work after quarantine and exclusion for work under any of the following conditions:

• Employees with symptoms must meet all of these conditions:
  1. At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications
  2. COVID-19 symptoms have improved
  3. At least 10 days have passed since COVID-19 symptoms first appeared
• Employees without symptoms, at least 10 days have passed since the case’s first positive test
• If a licensed health care professional determines the person is no longer a COVID-19 case, in accordance with California Department of Public Health (CDPH) or local health department recommendations

Employees with COVID-19 exposure may return to the workplace 14 days after the last known COVID-19 exposure.

Paid Time Off

One of the most notable and controversial aspects of the ETS is the new mandate for paid time off. For employees who are excluded from work for COVID-19-related reasons, but remain “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.” Additionally, the ETS requires that employers provide employees with information regarding COVID-19-related benefits, including those available as workers’ compensation, under the federal Families First Coronavirus Response Act (FFCRA), the California Labor Code, and any leave guaranteed by contract.

Perhaps the most extraordinary aspect of the paid time off requirements under the ETS is that there is no explicit cap on the amount of earnings that must be continued if employees are excluded from work multiple times. The requirement for paid time off under the ETS may be satisfied via employer-provided employee sick leave benefits and other supplemental paid sick leave offered in response to COVID-19.   Additionally, the requirement does not apply where the employer can demonstrate that the COVID-19 exposure is not work related.

Consequences of Non-Compliance

Failure to comply with the ETS can result in a fine in accordance with Cal/OSHA’s penalty structure. Penalties will vary depending on the citation’s classification (e.g., regulatory, general, serious, repeat, or willful). Penalties vary depending on classification, but repeat or willful citations may be as high as $132,765 per citation.

Employers in California, even those with existing COVID-19 protocols, should evaluate their current procedures as soon as possible to ensure compliance with the ETS, including adoption of a written COVID-19 Prevention Plan.

For more information or immediate guidance, contact:

• Victor T. Xu
• Michael Rubin
• Peter J. Woo
• Caroline J. Berdzik
• Or another member of our Employment and Labor team