Seyfarth Synopsis: The California Department of Industrial Relations’ Office of Administrative Law (OAL) approved an Emergency Temporary Standard regarding COVID-19, effective November 30, 2020. After holding a stakeholders meeting in December, the Division released its second iteration of frequently asked questions, which included nearly 40 new FAQs.
As we reported, on November 30, 2020, the California Office of Administrative Law (OAL) approved Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS). Soon after, Cal/OSHA published its first set of FAQs, which left many crucial questions unanswered, leaving employers struggling to understand a complex new set of safety standards (some of which contradicted the California Department of Health), COVID-19 testing, reporting, and employee pay continuation requirements.
In the wake of a mid-December stakeholders meeting designed to address questions surrounding the new ETS, Cal/OSHA promised to update the FAQs. Governor Newsom also stepped in and issued an Executive Order on December 14, 2020, requiring Cal/OSHA to follow the state Department of Health guidance and to date any updates to the ETS or FAQs, so that employers would understand when, and what, the Division was changing. Weeks after the regulated community had been anticipating the update, Cal/OSHA finally posted additional FAQs on January 8, 2021. The newest slew of FAQs provide a number of clarifications and updates. We highlight some of the notable issues below.
- Earnings Continuation For “Able and Available” Employees. The FAQs confirm that the earnings continuation obligation is designed for “available and able” employees who have been removed from the workplace due to transmission related concerns (as opposed to those who are sick, who are not eligible). Along these lines, the FAQs explain that if someone cannot return after the normal quarantine period has run, the person is likely not available and able to work due to illness (which would render them ineligible for the earnings continuation).
- Workers’ Compensation Eliminates Earnings Continuation. Employees who are receiving temporary disability benefits under workers’ compensation are not entitled to also receive earnings continuation, because Cal/OSHA deems those eligible for disability as not “able and available” to work.
- Other Earnings Continuation Exceptions. The FAQs explain that the same framework an employer would use to rebut the presumption an employee contracted COVID in the workplace under SB 1159 would apply to determine if the “exposure” was work related, such that an employee would be eligible for earnings continuation. Under this framework, for employers to demonstrate exposure is not work related, they should conduct “comparable investigations” to show it is more likely than not that the exposure didn’t occur in the workplace.
- ATD Standard. As we previously blogged, the ETS does not apply to (1) employees who are already covered under the Cal/OSHA Aerosol Transmissible Diseases (“ATD”) standard, (2) employees who are working from home, and (3) single-employee employers who do not have contact with others. Importantly for the healthcare industry and other employers covered by the ATD standard, the FAQs clarify that an employee in a single-person workplace cannot be subject to both the ETS and the ATD standard. This means, for example, that an employee covered by her employer’s ATD plan due to occupational exposure to aerosol transmissible diseases (including but not limited to COVID-19) is still covered by the ATD plan even if she’s in an area of the hospital that serves a purely administrative function.
- Many employers may already be familiar with the ETS provision that requires solid partitions (e.g. Plexiglas) to be installed at fixed work locations where it is not possible to keep six feet of separation. Cal/OSHA’s guidance now clarifies that unless they are complete barriers (presumably meaning floor to ceiling), employers need to consider workers within six feet of each other as close contacts for purposes of contact tracing, testing, and quarantine.
- Location and Testing Requirements. Cal/OSHA clarifies that when testing must be provided, it does not need to be provided at the employee’s work location. Companies can refer employees to a free testing site, clinic, or their own physician, so long as the employees incur no cost for the testing, including reimbursement for any testing-related costs such as mileage or parking fees. Cal/OSHA also clarified that employers do not have to mandate or require that employees be tested in an outbreak setting—they are only required to offer testing.
- Length of Quarantine. Although a 14-day quarantine period 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.” Health care, emergency response, and social services workers may return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage. (This update was mandated by the Governor’s Executive Order that Cal/OSHA align with the California Department of Public Health’s updated quarantine guidance.)
- Potential Waivers For Staffing Shortages. As many employers may already know, the ETS permits companies to seek a waiver from Cal/OSHA’s return to work criteria for employees who have COVID-19 or who have been exposed to COVID-19, but the details of the waiver process have been unclear. While the waiver submission process remains unclear, Cal/OSHA clarified that “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.” Cal/OSHA noted that this is intended to be narrower than the definition of “critical infrastructure” industries, and to receive such an exemption, an employer must provide specific information, including describing their operations and the effect of the quarantine on such operations.
- How To Calculate An Outbreak. The FAQs address a number of questions related to outbreak testing. A common question from employers has been how to measure the 14-day period to determine if an outbreak under the ETS has occurred. Cal/OSHA now confirms that employers “should look to the testing date of the cases and review any cases for which the tests occurred within a 14-day period to evaluate whether the other criteria for an outbreak have been met.”
- Considering Shifts in Determining Outbreaks. Employers were also uncertain about whether or how to consider shifts when evaluating whether there have been three or more COVID-19 cases in a single exposed workplace. For example, if an employer had three COVID-19 positive employees in the breakroom on Monday, but each one of them was on a different shift and they didn’t cross paths, would that trigger outbreak testing? Cal/OSHA now says no, employers can consider each shift as a separate “exposed workplace” if the facility is well ventilated and the cleaning and disinfection requirements of the ETS are met between or before shift changes.
Will There Be More Guidance?
The FAQs state that they will be updated on an ongoing basis to help stakeholders understand the ETS. In addition, the Consultation Branch will be available to answer employer questions.
What Happens If Our Company Has Issues Complying With the ETS?
We previously covered some of the penalties that could result from non-compliance with the new ETS. Cal/OSHA states that it will consider employer good-faith efforts to comply with the ETS before issuing citations. Additionally, the FAQs state that Cal/OSHA will not assess monetary penalties for any alleged violations until February 1, 2021, if those alleged violations would not have been considered a violation of a pre-existing Cal/OSHA standard such as the respiratory protection standard, or the “IIPP standard.”
So, employers have been given a bit of good news that the new provisions under the ETS won’t result in monetary penalties from Cal/OSHA for a few more weeks.
How Do Our Company’s Obligations Change Once Our Employees Are Vaccinated?
In short, they don’t. Cal/OSHA’s guidance clarifies that once an employee is vaccinated, all prevention measures must continue to be implemented. Cal/OSHA says that the impact of vaccines will likely be addressed in a future revision to the ETS.
What Else Is Cal/OSHA Going To Do?
Cal/OSHA’s statement that the impact of vaccines will probably be addressed in a future revision to the current ETS indicates that Cal/OSHA plans to release a new version of the ETS in the near future. As always, we closely track Cal/OSHA’s news releases and pending legal challenges to the ETS.