On November 19, 2020, the Cal/OSHA Safety & Health Standards Board unanimously adopted an emergency COVID-19 Prevention Rule. As a result, employers with operations in California should review and update their COVID-19 safety protocols in light of the new regulation, which could go into effect at the end of this month.

The sweeping new rule, which applies to most employers in California, consists of 21 pages of specific mandates regarding COVID-19 safety in the workplace. The rule, which still requires approval by the state Office of Administrative Law (OAL), could become binding as early as November 30, 2020, leaving employers with little time to comply with its provisions. Assuming it is approved by OAL, it will remain in effect for at least six months, and may be extended for various reasons.The full text of the new rule can be found here. Its key provisions are summarized below.

Written COVID-19 Prevention Program

The rule requires employers to establish and implement a specific, written COVID-19 Prevention Program, which can either be integrated into the employer's Injury and Illness Prevention Program (IIPP) or maintained as a separate document. The program must cover 11 elements, each of which has detailed requirements.

Employers should carefully review the rule for those details; significant requirements include:

  • Employers must have a system for communicating with employees about COVID-19-related policies and procedures, including—among other things—procedures for accommodating employees with medical or other conditions that put them at increased risk of severe COVID-19 illness.
  • Employers must allow employees and any authorized union representative to participate in identifying and evaluating COVID-19 hazards; have a process for screening employees for COVID-19 symptoms; and for indoor locations, evaluate how to maximize the quantity of outdoor air and whether it is possible to increase filtration efficiency.
  • Employers must investigate and respond to COVID-19 cases in the workplace, with procedures for determining who may have had a workplace COVID-19 exposure (defined as being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more in a 24-hour period), and must offer COVID-19 testing, at no cost and during work hours, to all employees who had potential exposure. Employers must also provide notice, within one business day, to all employees who may have had COVID-19 exposure, as well as to any union representative and any contractors who were present at the site.
  • Employers must train employees on the employer's COVID-19 policies and procedures, including physical distancing, frequent handwashing, and proper use of face coverings.
  • Employers must also inform employees about COVID-19-related benefits to which they may be entitled under federal, state, or local laws, including benefits under workers' compensation, the federal Families First Coronavirus Response Act, and California's COVID-19 supplemental paid sick leave law.
  • Employers must ensure that employees engage in physical distancing from each other (i.e., at least six feet apart); must provide face coverings to employees and ensure that employees are properly wearing them (subject to certain exceptions); and evaluate whether other engineering controls, administrative controls, and personal protective equipment (PPE) are needed.
  • Employers must report COVID-19 cases at the workplace to the local health department whenever required by law; must immediately report to Cal/OSHA any COVID-related hospitalization or death of an employee that occurs at work or in connection with any employment; and must keep a record of all COVID-19 cases, including 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.
  • Employers must exclude employees with COVID-19 exposure from the workplace for 14 days after the last known exposure to a COVID-19 case. In addition, with some exceptions, the rule requires employers to maintain those employees' earnings, seniority, and all other employee rights and benefits, including their right to their former job status, as if they had not been removed from their job.
  • Employers must not allow COVID-19 cases to return to work until at least 24 hours have passed since a fever of 100.4 °F 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. Employers may not require a negative COVID-19 test for an employee to return to work.

Multiple COVID-19 Infections, COVID-19 Outbreaks, and "Major" COVID-19 Outbreaks

The new rule also requires employers to provide a series of free tests to all employees at a workplace if there is a "COVID-19 outbreak" (as identified by the local health department) or if there are three or more individuals who are onsite and who test positive for COVID-19 within a 14-day period. The rule directs the first test to occur "immediately" after an outbreak label or the third onsite positive case.

Additional tests must be provided to all employees each week until there are no new COVID-19 cases detected in the workplace for a 14-day period. Employees who are not onsite during the relevant outbreak or 14-day period are exempt from this testing obligation.

In addition, an outbreak or three positive cases in a 14-day period triggers a requirement for employers to "immediately" review and implement changes to existing COVID-19 policies and controls to prevent further spread of COVID-19. Employers must also notify the local health department within 48 hours from the time the employer knew or should have known of three or more COVID-19 cases.

If there are 20 or more COVID-19 cases in a workplace within a 30-day period, then a "major COVID-19 outbreak" has occurred under the emergency rule. The same requirements described above for multiple infections and local health department-identified outbreaks apply, except that employee testing will be required twice a week or more frequently if directed by the local health department.

An employer in a major outbreak will also be required to incorporate high efficiency filters into the facility's ventilation system if that has not already been done. The employer will also be required to consider whether respirators and a respiratory protection program, a halt in operations, or both are necessary to control the major outbreak.

COVID-19 Prevention in Employer-Provided Housing and Employer-Provided Transportation

The emergency rule also provides restrictions and requirements for employer-provided housing and transportation. These requirements do not apply to emergency response housing and transportation, housing provided by government employers, or where all individuals affected are part of the same household.

The provisions regulate housing and transportation assignments, physical distancing, face coverings, hygiene, cleaning and disinfecting, symptom screening, COVID-19 testing, and ventilation.

Key Takeaways

The proposed emergency rule is currently under review by the Office of Administrative Law, which has until November 30, 2020, to approve or deny it. Assuming OAL approves the rule (as seems likely), the rule will take effect when OAL files it with the Secretary of State—which could occur on the same day as approval. In other words, the rule could go into effect as early as November 30, 2020.

If approved, the emergency rule would remain in effect for 180 days, after which it could be renewed in 90-day increments until the emergency is over or a permanent rule is enacted.

The rule raises many question about how particular provisions should be interpreted and applied. For example, the rule requires employers to notify employees and local health authorities of workplace COVID-19 cases, but it is unclear whether those requirements are fully consistent with similar provisions in Assembly Bill (AB) 685, which was recently enacted by California's Legislature and will go into effect on January 1, 2021. Our blog post discussing the details of AB 685 can be found here.

There are also questions regarding when exactly the rule will and will not require employers to continue paying employees who are excluded from the workplace due to COVID-19 exposure, how such pay must be calculated, and even whether the Cal/OSHA Safety & Health Standards Board has the legal authority to regulate employee compensation. It is likely that at least some of these questions will be subject to legal challenges and eventually decided by the courts.

In the meantime, however, employers should review their COVID-19 policies and procedures to determine what they need to do to comply with the new rule—especially since it may go into effect so soon. Given the breadth and complexity of the new rule, employers are also well advised to consult with their legal counsel for guidance.