QUESTIONS
For essential businesses who have employees still working, what are the obligations regarding safety precautions for employees?
What liability exposure exists related to safety obligations and employees contracting Covid-19 in the workplace?
ANSWERS
In addition to the CDC and OSHA guidance, employers should be cognizant of various preexisting, enforceable safety orders as well as obligations now being imposed on employers at the county level.
Compliance with applicable Cal-OSHA safety standards is a primary concern, to avoid potentially substantial citation penalties. Otherwise, any workplace injury should be addressed in the workers’ compensation context, although employers should be wary of conduct that may result in an exception to exclusive remedy rule, including but not limited to fraudulent concealment.
LEGAL AUTHORITY
I. Safety Precautions
There appear to be a few sources of requirements regarding protecting employees in the workplace. The first and most obvious are the Cal-OSHA occupational safety and health orders. Second, some counties are directing employers adopt certain safety protocols. Each are addressed in turn.
a) CDC and OSHA Guidance
The first thing to consider then is the CDC’s general industry interim guidance, see www.dir.ca.gov/dosh/coronavirus/General-Industry.html. Cal-OSHA has not adopted this as a standard and simply recommends it be followed. The CDC states, “The following interim guidance may help prevent workplace exposures to COVID-19, in non-healthcare settings. . . . Businesses and employers can prevent and slow the spread of COVID-19. . . . All employers need to consider how best to decrease the spread of COVID-19 and lower the impact in their workplace.”
Employees who have symptoms should notify their supervisor and stay home. Employees should not return to work until the criteria to discontinue home isolation are met, in consultation with healthcare providers and state and local health departments. Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and follow CDC recommended precautions. Be aware that some employees may be at higher risk for serious illness, such as older adults and those with chronic medical conditions. Consider minimizing face-to-face contact between these employees or assign work tasks that allow them to maintain a distance of six feet from other workers, customers and visitors, or to telework if possible.
Employees who appear to have symptoms (i.e., fever, cough, or shortness of breath) upon arrival at work or who become sick during the day should immediately be separated from other employees, customers, and visitors and sent home.
“Identify where and how workers might be exposed to COVID-19 at work: See OSHA COVID-19 webpage for more information on how to protect workers from potential exposures and guidance for employers, including steps to take for jobs according to exposure risk.”
OSHA’s guidelines (which are not regulation and create no new obligations) are available here: www.osha.gov/Publications/OSHA3990.pdf. While too lengthy to summarize here, the guidance provides various steps to take in the following categories:
Develop an Infectious Disease Preparedness and Response Plan
Prepare to Implement Basic Infection Prevention Measures
Develop Policies and Procedures for Prompt Identification and Isolation of Sick People, if Appropriate
Develop, Implement and Communicate About Workplace Flexibilities and Protections
Implement Workplace Controls – Engineering Controls, Administrative Controls, Safe Work Practices, Personal Protective Equipment
Follow Existing OSHA Standards
The federal guidance goes on to classify workers according to risk, making those who have contact with the general public a medium risk. Regarding medium risk level, the guidance suggests the following:
Engineering Controls: Install physical barriers, such as sneeze guards, where feasible.
Administrative Controls: Consider offering face masks to ill employees and customers until they are able to leave the workplace. Ask Sick customers to minimize contact with workers, such as by posting signs. Where appropriate, limit customers access to the worksite or restrict access only to certain places. Consider strategies to minimize face-to-face contact. Communicate availability of health screening and other resources to workers.
Personal Protective Equipment (PPE): “Each employer should select the combination of PPE that protects workers specific to their workplace. Workers with medium exposure risk may need to wear some combination of gloves, a gown, a face mask, and/or a face shield or goggles. PPE ensembles for workers in the medium exposure risk category will vary by work task, the results of the employer’s hazard assessment, and the types of exposures workers have on the job. In rare situations that would require workers in this risk category to use respirators, see the PPE section beginning on page 14 of this booklet, which provides more details about respirators.”
If an employee is confirmed to have COVID-19 infection, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). The fellow employees should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).
Educate employees about the spread of Covid-19 (various educations points provided in CDC guidance).
Identify a workplace coordinator who will be responsible for COVID-19 issues and their impact at the workplace. Implement flexible sick leave and supportive policies and practices. This includes ensuring employees are aware of sick leave policies. “Employers should not require a positive COVID-19 test result or a healthcare provider’s note for employees who are sick to validate their illness, qualify for sick leave, or to return to work. Healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely manner.”
“Assess your essential functions and the reliance that others and the community have on your services or products. . . . Be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize existing customers, or temporarily suspend some of your operations if needed).”
Consider establishing policies and practices for social distancing. Social distancing should be implemented if recommended by state and local health authorities.
Consider improving the engineering controls using the building ventilation system. Support respiratory etiquette and hand hygiene for employees, customers, and worksite visitors. Perform routine environmental cleaning and disinfection, including routinely cleaning and disinfecting all frequently touched surfaces and providing disposable wipes so that commonly used surfaces can be wiped down by employees before each use. Perform enhanced cleaning and disinfection after persons suspected/ confirmed to have COVID-19 have been in the facility.
Carefully consider whether travel is necessary and advise employees before traveling to take additional preparations.
Consider using videoconferencing or teleconferencing when possible for work-related meetings and gatherings. Consider canceling, adjusting, or postponing large work-related meetings or gatherings that can only occur in-person. When videoconferencing or teleconferencing is not possible, hold meetings in open, well-ventilated spaces.
b) Potentially Relevant Cal-OSHA Regulations
The Department of Industrial Relations’ website notes there are existing Cal-OSHA safety standards, preexisting the Covid-19 pandemic, which may apply to general industry in this situation. They list the following: 1) Injury and Illness Prevention Program, Title 8, Section 3203, 2) Personal Protective Equipment, Title 8, Section 3380, 3) Control of Harmful Exposures, Title 8, Section 5141, and 4) Washing Facilities, Title 8, Sections 1527, 3366, 3457, and 8397.4.
Regarding the requirement for Injury and Illness Prevention Program, the general takeaway according to DIR in this regard is that “Employers are required to determine if COVID-19 infection is a hazard in their workplace. If it is a workplace hazard, then employers must implement measures to prevent or reduce infection hazards, such as implementing the CDC recommended actions listed above and provide training to employees on their COVID-19 infection prevention methods.” The other safety standards are addressed more specifically below.
Personal Protective Equipment
This is a relatively short safety standard, which applies to general industry and requires essentially the following:
The employer shall assess the workplace to determine if hazards are present, or are likely to be present, which necessitate the use of personal protective equipment (PPE). If such hazards are present, or likely to be present, the employer shall: (A) Select, and have each affected employee use, the types of PPE that will protect the affected employee from the hazards identified in the hazard assessment; (B) Communicate selection decisions to each affected employee; and, (C) Select PPE that properly fits each affected employee.
The employer shall verify that the required workplace hazard assessment has been performed through a written certification that identifies the workplace evaluated; the person certifying that the evaluation has been performed; the date(s) of the hazard assessment; and which identifies the document as a certification of hazard assessment.
Personal protective equipment shall be approved for its intended use, and the employer shall assure that the employee is instructed and uses protective equipment in accordance with the manufacturer's instructions. Protective equipment shall be distinctly marked so as to facilitate identification of the manufacturer. PPE must comply with the applicable Title 8 standards and be maintained in a safe, sanitary condition. Protectors shall be of such design, fit and durability as to provide adequate protection against the hazards for which they are designed. They shall be reasonably comfortable and shall not unduly encumber the employee's movements necessary to perform his or her work.
The employer shall provide training to each employee who is required by this section to use PPE. Each such employee shall be trained to know at least the following: (A) When PPE is necessary; (B) What PPE is necessary; (C) How to properly don, doff, adjust and wear PPE; (D) The limitations of the PPE; and (E) The proper care, maintenance, useful life and disposal of the PPE. Each affected employee shall demonstrate an understanding of the training and the ability to use PPE properly before being allowed to perform work requiring the use of PPE. The employer shall verify that each affected employee has received and understood the required training through a written certification that contains the name of each employee trained, the date(s) of training, and that identifies the subject of the certification.
8 C.C.R. § 3381 et seq. then go into further detail regarding protection for various areas of the body, including eye and face protection, hand protection, sanitation, etc. This memorandum will not go into this level of detail. The employer is required to assess potential need for personal protective equipment and provide where appropriate. The DIR considers this safety order applicable in the context of Covid-19, stating that “Title 8 section 3380 Personal Protective Devices requires employers to conduct a hazard assessment to determine if hazards are present in the workplace that necessitate the use of PPE. If an employer identifies COVID-19 as a workplace hazard, they must select and provide exposed employees with properly fitting PPE that will effectively protect employees.”
Control of Harmful Exposures
The Control of Harmful Exposures standard, 8 C.C.R. § 5141, is quoted below:
(a) Engineering Controls. Harmful exposures shall be prevented by engineering controls whenever feasible.
(b) Administrative Controls. Whenever engineering controls are not feasible or do not achieve full compliance, administrative controls shall be implemented if practicable
(c) Control by Respiratory Protective Equipment. Respiratory protective equipment, in accordance with Section 5144, shall be used to prevent harmful exposures as follows:
(1) During the time period necessary to install or implement feasible engineering controls;
(2) Where feasible engineering controls and administrative controls fail to achieve full compliance; and
(3) In emergencies.
Section 5140 defines “harmful exposure” as “[a]n exposure to dusts, fumes, mists, vapors, or gases . . . . [o]f such a nature by inhalation as to result in, or have a probability to result in, injury, illness, disease, impairment, or loss of function.” According to the DIR’s website, “COVID-19 is a harmful exposure if there is an increased risk of infection at the workplace.”
Washing Facilities
General Industry Safety Order, Washing Facilities, 8 C.C.R. § 3366. It requires, among other things, that “[w]ashing facilities for maintaining personal cleanliness . . . be provided in every place of employment. These facilities shall be reasonably accessible to all employees.” DIR’s website notes that “all employers must provide washing facilities that have an adequate supply of suitable cleansing agents, water and single-use towels or blowers.”
c) County Emergency Orders/Directives
Employers should be familiar with county orders and/or directives for the counties in which they operate, which may impose unique requirements.
For example, effective April 4, San Diego County is requiring that all employees who may have contact with the public in any grocery store, pharmacy/drug store, convenience store, restaurant and other business establishments that serve food shall wear a cloth face covering. Riverside County followed with an even broader order requiring face coverings for all essential workers, and Los Angeles County has required employers provide face coverings to essential employees. Other counties are only strongly recommending the use of face coverings for the time being, but this may change. Please remember, Labor Code § 2802 requires employers reimburse employees for any necessary business expenditures, which would likely be applicable to employees’ expenses to acquire PPE required for their work.
Another example, the most current Sacramento County order requires all essential businesses prepare, post and disseminate a social distancing protocol, which must be substantially in the form as attached to the Order as Appendix A. See www.saccounty.net/COVID19/Documents/April7_UpdatedHealthOrderStayatHome.pdf.
Employers must familiarize themselves with distinct county requirements imposed and any legal obligations related thereto in order to ensure compliance. Various county orders state that when state and county orders conflict, the more restrictive provisions control.
II. Liability
In the context of workplace safety and work injuries, this memorandum will address three potential areas of liability generally: 1) a Cal-OSHA citation, 2) workers compensation, and 3) potential exceptions to the workers compensation exclusive remedy rule within which civil liability could occur.
a) Cal-OSHA Violations
If an employer fails to abide by applicable workplace safety regulations, the Division of Occupational Safety and Health administers and enforces safety regulations by conducting inspections and issuing and defending citations. The Division has broad authority to enter a workplace to investigate alleged Cal-OSHA violations. It may investigate when it learns or has reason to believe that a workplace is not safe. The Division must investigate upon receipt of a complaint either 1) by an employee or his or her representative (unless it determines the complaint was made without any reasonable basis or to willfully harass the employer), or 2) by a prosecutor or local law enforcement agency charging a “serious violation.” The Division must have either employer consent or a warrant to inspect a workplace. Following an inspection, the Division must issue a citation to the employer if it believes the employer violated a safety standard. Violations are classified as (1) general and/or regulatory, (2) serious, or (3) repeat and/or willful.
Cal/OSHA penalties are calculated according to complicated regulations. Some points of general understanding are as follows. When calculating a penalty, the Division first determines the basic classification—regulatory, general, serious, or repeat/willful. Based on that classification, the Division assesses an “initial base” or “minimum proposed” penalty. The penalty is then adjusted in accordance with several other factors, including the likelihood and extent of the violation, the size, good faith, and history of the employer, and successful abatement. The initial base penalty for a general or serious violation is increased or decreased by the “gravity-based penalty.” This turns on two factors: “extent” and “likelihood,” each of which is ranked as low, medium (or moderate) or high. 8 C.C.R. § 335(a). No reduction for extent or likelihood is made if a willful violation results in death, serious injury or illness, or a serious exposure. The Division has adopted a policy for assessing potential violation-by-violation penalties for “egregious” or “flagrant” violations.
Any employer, manager or supervisor who knowingly or negligently commits a “serious” violation of a Cal-OSHA standard can be charged with a misdemeanor, punishable by up to six months' imprisonment and/or a $5,000 fine. Labor Code § 6423(a)(1), (b). Both employers and supervisory or managerial employees can face felony charges for “willfully” violating a Cal-OSHA standard that caused an employee's death or permanent or prolonged bodily impairment. Labor Code § 6425(a).
b) Workers Compensation
Generally, an employee's rights against his or her employer for an on-the-job injury lie solely under the workers' compensation law—i.e. workers’ compensation is the injured employee's “exclusive remedy” and they have no right of action against the employer. This will be equally applicable in the context of an employee claiming to have contracted Covid-19 in the workplace. There are a few limited exceptions to the exclusive remedy rule, however, that employers should be aware of to avoid potential civil claims. The three that could be potentially relevant are 1) fraudulent concealment, 2) dual capacity, and 3) employer assault or ratification.
Fraudulent Concealment
If an employer fraudulently conceals a worker's injury and its connection to employment, and the concealment results in an aggravation of the injury, this exception to the exclusive remedy rule applies. There are three elements: (1) the employer concealed the existence of the injury; (2) the employer concealed the connection between the injury and employment; and (3) the injury was aggravated following the employer's concealment. Labor Code § 3602(b); Jensen v. Amgen, 105 Cal.App.4th 1322, 1325 (2003). The fraudulent concealment exception arises commonly in situations where an employee was exposed to asbestos, mold or a toxic chemical. It requires actual knowledge by the employer and a lack of awareness by the worker of the injury and its relationship to employment. Theoretically, this could apply in the context of exposure to Covid-19, which like exposure to asbestos, mold or toxic chemicals can be known to employer but unknown to the employee.
Dual Capacity
Workers' compensation is a worker's exclusive remedy only in those cases where the injury arises out of conditions of employment, as defined in Labor Code § 3600. The dual capacity exception applies where the employer serves a separate legal role or assumes an obligation that is not normally imposed by the employer-employee relationship. So for example, in Weinstein v. St. Mary's Medical Center, 58 Cal.App.4th 1223 (1997), the plaintiff worked at a hospital, had a work injury, and went off work, receiving workers compensation. While off work and, she went to the hospital where she was employed to receive medical treatment related to her work injury. She slipped and fell on a liquid substance in the hallway which resulted in an aggravation of her existing work injury. The plaintiff filed a premises liability claim. The exclusive remedy rule did not apply because the hospital was acting in its capacity as a medical provider instead of as an employer and that she was on the premises as a patient rather than as an employee. In short, workers compensation is not the exclusive remedy when the injury related directly to contact with the employer, outside of the employment relationship.
Assault
An employee may bring a civil suit against their employer where the employer has acted affirmatively by either willfully assaulting the employee or ratifying the assault of the employee by a coworker. Labor Code § 3602(b)(1). The employer ratification of the assault may be express or implied based on the employer's conduct, including conduct which is inconsistent with any reasonable intention other than intending to approve or adopt the assault.