On November 20, 2020, the OSHA Board unanimously adopted proposed regulations that impose requirements on employers to promulgate written policies regarding COVID-19 Prevention Plans. The new regulations will go into effect December 1 and were approved by the Office of Administrative Law on November 30, 2020. The regulations will remain in effect for 180 days unless extended.
Governor Newsom also recently signed AB 685, new legislation that allows the state to track COVID-19 cases in the workplace more closely. AB 685 changes Labor Code sections 6325, 6432f, and 6409.6. AB 685 takes effect on January 1, 2021.
AB 685 requires employers to provide notice in the event of a COVID-19 workplace outbreak, including written notice to “all employees” who were at the worksite within the infectious period who may have been exposed. For our friends in the construction industry, proper notice would also include notice to other project parties, including public or private owners, all contractors, and inspectors involved in the project. In addition, AB 685 adds reporting requirements to local health authorities in the event of a COVID-19 “outbreak” at the worksite, defined under the new CAL/OSHA regulations as three or more cases at a worksite in any 14-day period.
Further, AB 685 expands Cal/OSHA’s authority to issue Orders Prohibiting Use or Stop Work Orders, for workplaces that pose a risk of an “imminent hazard” relating to COVID-19, i.e., where an immediate and serious threat of physical harm may exist.
New Cal/OSHA Regulations: How Will the Emergency Rule Change the Return-To-Work Process?
The OSHA Board unanimously adopted proposed regulations on November 20, 2020 that were approved by the Office of Administrative Law and become effective on December 1, 2020. Under the new regulations, employers must have a written COVID-19 Prevention Plan that addresses the following:
- Systems for communicating information to employees about COVID-19 prevention procedures, testing, symptoms, and illnesses, including a system for employees to report exposures without fear of retaliation.
- Identifying and evaluating hazards, including screening employees for symptoms and identifying workplace conditions and practices that could result in potential exposure.
- Investigating and responding to cases in the workplace, including responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one business day about potential exposures, and offering testing to workers who may have been exposed.
- Correcting COVID-19 hazards, including correcting unsafe conditions and work practices, as well as providing effective training and instruction.
- Implementing procedures to ensure social distancing, that workers stay at least six feet apart from other people if possible.
- Providing face coverings and ensuring they are worn.
- Adopting site-specific strategies, such as changes to the workplace and work schedules, and providing personal protective equipment to reduce exposure to the virus.
- Retaining positive COVID-19 case and illness records and making the COVID-19 Prevention Plan accessible to employees and employee representatives.
- Removing COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
- Publishing written criteria for employees to return to work after recovering from COVID-19.
- Testing workers and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
- Drafting specific requirements for infection prevention in employer-provided housing and transportation to and from work.
(See, DIR Release number 2020-98 dated November 20, 2020, https://www.dir.ca.gov/DIRNews/2020/2020-98.html)
Once approved and published, the full text of the adopted emergency standards will appear in new Title 8 sections 3205 (COVID-19 Prevention), 3205.1 (Multiple COVID-19 Infections and COVID-19 Outbreaks), 3205.2 (Major COVID-19 Outbreaks) 3205.3 (COVID-19 Prevention in Employer-Provided Housing) and 3205.4 (COVID-19 Prevention in Employer-Provided Transportation to and from Work) of the California Code of Regulations. Pursuant to the state’s emergency rulemaking process, after an initial 180-day effective period, the board will have two opportunities to readopt the temporary standards.
What Notice Must Be Provided to Employees?
The new law requires employers to act within one business day of the following notice triggers:
- Notification from a public health official or licensed medical provider that an employee was exposed to a “qualifying individual” at the worksite;
- Notification from an employee or their emergency contact that the employee is a “qualifying individual”;
- Notification through the testing protocol of the employer that the employee is a “qualifying individual”; or
- Notification from a subcontracted employer that a “qualifying individual” was on the worksite.
A “qualifying individual” is someone who (1) has a laboratory-confirmed case of COVID-19; (2) has a positive COVID-19 diagnosis from a licensed health care provider; (3) has a COVID-19 related order to isolate from a public health official; or (4) has died from COVID-19.
Employers must do the following if the notice requirement is triggered:
- Provide written notice to all employees, and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to COVID-19. Although the written notice requirement applies only to employees and subcontracted employees, employers should also consider notifying any identifiable third parties who were at the worksite during the infectious period.
- Provide written notice to employee representatives, including unions and sometimes attorneys, who may represent employees.
- Provide written notice to employees and/or employee representatives regarding COVID-19-related benefits that employee(s) may receive, including workers’ compensation benefits, COVID leave, paid sick leave, and the company’s anti-discrimination, anti-harassment, and anti-retaliation policies.
- Provide written notice to employees regarding the company’s disinfection protocols and safety plan to eliminate any further exposures, per CDC guidelines.
- Retain records of the notices for not less than three (3) years.
Written notice may include, but is not limited to, personal service, e-mail, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
Civil penalties may be issued for violations of these requirements, and OSHA creates a rebuttable presumption that a “serious violation” exists if OSHA demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. Examples of actual hazards could consist of issues including, but not limited to: 1) serious exposure exceeding an established permissible exposure limit; or 2) the existence of one or more unsafe or unhealthful practices, means, methods, operations, or processes in place or in use in a work place.
How Does This Law Change COVID-19 Exposure Reporting?
Any employer that has a sufficient number of COVID-19 positive cases that meet the definition of a COVID-19 outbreak (recently defined as three or more cases at a worksite in any 14-day period) is required to report prescribed information to the local public health agency in the jurisdiction of the worksite within 48 hours of learning of the outbreak.
The definition of a reportable COVID-19 outbreak may also be determined by the local health authority, which may differ from the definition under the workers’ compensation presumption rule.
In addition, for COVID-19-related fatalities, the employer must provide notification to the local health department of the: names, numbers, occupation, and worksite of employees who died due to a COVID-19 exposure (as determined by a public health department). An employer shall also report the business address and North American Industry Classification System (NAICS) code of the worksite where the COVID-19-positive employee worked. An employer with an outbreak subject to this section shall continue to provide notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.
How Does This Law Change Cal/OSHA Processes?
The new law fast tracks the timeline for Cal/OSHA’s issuing serious violation citations (“serious citations”). Usually, whenever Cal/OSHA intends to issue a serious citation, the agency has to provide a “1BY” notice, whereby the employer is afforded notice by the agency of its intent to issue a serious citation, together with the specific safety orders and allegations to support the anticipated citation.
Employers, in turn, are provided 15 days to provide evidence to support their defense, which could potentially influence whether Cal/OSHA will issue serious citations.
Under the new rule that removes the 1BY step for COVID-19 violations, employers do not have the opportunity to “preview” Cal/OSHA’s serious allegations, to submit evidence and proof to address those allegations, or to have any meaningful dialogue with the Division before issuance of the citations. This means employers must closely monitor the statute of limitations and ensure that once they receive a citation, they immediately evaluate the classifications, allegations, and proposed penalties, and determine whether and when an appeal is necessary. If an employer wants to file an appeal, the Cal/OSHA appeal form states that it must be filed within 15 working days. (https://www.dir.ca.gov/oshab/appealform.pdf)
AB 685’s removal of the 1BY notice period for COVID-related hazards also means employers should be careful to implement their COVID policies immediately and produce documents to Cal/OSHA during an investigation, because after the document production is complete they will not have an opportunity to influence whether and what citations may issue.
What About Citations and Enforcement?
Up to this point, Cal/OSHA has issued citations under the Injury and Illness Prevention Standard, a “catch-all” safety order that applies to a workplace hazard not covered by any specific safety order. This COVID-specific rule will probably require employers to draft and implement a separate COVID-19 Pandemic Plan that addresses all COVID-19 exposures and states how the employer will correct those exposures, enforce its procedures, provide training, conduct inspections, and review its processes for effectiveness. The rule might also establish requirements for employers to notify workers of confirmed or suspected COVID-19 cases similar to AB 685, mandate reporting to Cal/OSHA of cases that do not result in hospitalizations, and add practices to encourage potentially-infected employees to stay home.
While the rule is not yet in effect, employers are strongly encouraged to consult counsel whenever (1) there is a positive confirmed case of COVID-19 for guidance on the proper notification/contact tracing requirements, and (2) whenever Cal/OSHA contacts them or if an inspector appears at the employer’s worksite.
What Must Be Done Now?
Employers should immediately draft and implement procedures and protocols to address the requirements of AB 685 and the new Cal/OSHA regulations.