Seyfarth Synopsis: The California Department of Industrial Relations’ Office of Administrative Law has approved a California OSHA emergency temporary standard regarding COVID-19, effective November 30, 2020. It brings with it new documentation, COVID-19 testing, earnings continuation, and reporting obligations affecting most companies.

As we have previously blogged, Cal/OSHA’s Emergency Temporary Standard (ETS) was adopted at the Standards Board’s November 19, 2020 meeting. The evening of November 30, 2020, the California Office of Administrative Law (OAL) approved the ETS. The ETS became effective immediately: all employers must comply with its requirements right away. Cal/OSHA, a.k.a. the Division, has promised guidance will be published shortly, in the form of Frequently Asked Questions and template documents. Those FAQs and templates have yet to materialize.

What Are The Biggest Developments For Our Company?

As we previously blogged, the ETS does not apply to employees who are already covered under the Cal/OSHA Aerosol Transmissible Diseases standard, to employees who are working from home, and to single-employee employers who do not have contact with others.

For employers who are covered, some ETS provisions already causing confusion are:

  • Whenever there has been a COVID-19 case at a workplace, employers must “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.”
  • The ETS notification provisions that apply within one business day when a COVID-19 case has been identified in the workplace are not the same as what’s required under AB 685 (which goes into effect January 1, 2021), addressed in our blog here. For example, AB 685 requires the notice to be written, and the ETS does not. AB 685 requires notification to “employers of subcontracted employees,” whereas the ETS requires notification to independent contractors who were present at the workplace. Other seemingly semantic inconsistencies exist. For example, AB 685 refers to a COVID-19 “infectious period” whereas the ETS refers to a “high-risk exposure period”; both terms apparently refer to the time period employers must use in evaluating who may have had a COVID-19 exposure. The underlying definitions of these periods are essentially the same under AB 685 and the ETS.
  • Employers now must track and record all COVID-19 cases with the employee name, contact information, occupation, location of work, the most recent date worked at the workplace, and the date of a positive COVID-19 test. The information must be made available to employees and authorized employee representatives (with personal identifying information removed).
  • Employers now must “evaluate the need for respiratory protection in accordance with [the Cal/OSHA Respiratory Protection Standard, 8 CCR § 5144, when the physical distancing requirements … are not feasible or are not maintained.” Although there are exceptions for momentary or incidental exposures while employees are moving around and where employers can demonstrate that six feet of separation is not “possible,” the ETS has the potential to bring many employers under the Respiratory Protection Standard. Note that Cal/OSHA’s refers to “possible” separation instead of “feasible” separation.
  • In what has been criticized as a staggering Cal/OSHA over-reach, the ETS mandates that when employees are excluded from work for certain COVID-19 related reasons (i.e., having, or having been exposed to COVID-19), 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.” While some current paid sick leave laws, like the California Supplemental Paid Sick Leave law (which we blogged about here), provide that an employee may choose to use up to 80 hours of paid sick time to replace earnings while they are kept out of work due to concerns about spreading COVID-19, the new Cal/OSHA ETS mandates that employers pay for this time and provides no cap on the amount of earnings that must be continued if employees are excluded from work. This eliminates the cap on paid time set forth in Labor Code 248 and 1, as well as the 500-employee threshold imposed by the statewide law. The only bright spots for employers are that the ETS language about maintaining earnings (1) does not apply where the employer demonstrates the COVID-19 exposure is not work-related and (2) it allows benefit payments from public sources (e.g., unemployment benefits) to be considered in maintaining earnings.
  • Despite already existing requirements for employers when there are COVID-19 workplace “outbreaks,” the ETS includes additional, and quite burdensome, testing, investigation, correction, and notification requirements, and creates two categories for when these requirements attach: “Multiple COVID-19 Infections and COVID-19 Outbreaks” and “Major COVID-19 Outbreaks.” This requirement does not change based on the number of employees at a workplace: an employer with ten employees and an employer with 1,000 employees at a workplace both must test 100% of employees, with vastly different cost considerations. For larger employers, testing has the potential to be very costly.
  • For employers who provide housing and transportation to employees, there are special requirements such as ensuring housing units are cleaned at least once a day, providing six feet of distancing in dormitories, and providing private spaces for exposed employees to isolate.
  • The standard includes various other requirements, such as creating a written COVID-19 Prevention Program, which appears nearly duplicative of an IIPP.

What Happens If Our Company Doesn’t Comply With The ETS?

Non-compliance with the new ETS can result in an OSHA citation and penalty in accordance with the Division’s penalty structure. Different penalties attach to the different classifications of citations, which are Regulatory, General, Serious, Repeat, and Willful. Regulatory penalties typically attach to posting and recordkeeping requirements, General penalties typically attach for violations having some non-serious relationship to safety and health, and Serious penalties may attach if there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.

Given the seriousness of COVID-19, many alleged violations in connection with COVID-19 could be classified as Serious. If any violation under any classification is found by Cal/OSHA to be substantially similar to a violation issued in the five years prior, then the violation can be classified as Repeat. And a Willful citation may issue if Cal/OSHA determines the employer either knew what it was doing was a violation, or was aware of an unsafe condition, and made no reasonable effort to eliminate it.

Penalties run the gamut, with the maximum penalty for Regulatory or General being $13,277, the maximum for Serious being $25,000, and the maximum for Repeat or Willful being $132,765.

Is There Any Light At The End Of The Tunnel?

It is still unclear. Cal/OSHA’s Chief told the Standards Board that “some employers are going to need more time. We intend to fully take that into account in determining how they’re implementing the rule.” He also assured the regulated community that Cal/OSHA would publish a model COVID-19 Prevention Program, FAQs, and guidance, though these are yet to materialize. And, he noted the Division would consider “good faith” efforts on the part of employers. The Board also indicated it would convene a stakeholder committee to suggest updates to the ETS to address the top concerns from employers—information on this committee is still forthcoming.