On November 20, 2020, the Cal/OSHA Standards Board approved emergency COVID-19 standards for employers. These were then approved by the Office of Administrative Law (OAL) on November 30, 2020, and immediately went into effect. These rules will only remain in effect for 180 days (6 months), unless they are extended as an emergency regulation or adopted through the typical rulemaking process.
These new emergency regulations provide five new sections that fall within three main categories of rules: (1) workplace standards (including two separate sections for when there are multiple or major COVID-19 outbreaks), (2) employer-provided housing standards, and (3) employer-provided transportation standards.
Workplace Standards
These temporary standards apply to most workers in California, and only some employers are excluded from the coverage of these new standards. An exclusion applies if (1) the place of employment has only one employee who does not have contact with other persons, (2) the employees are working from home, or (3) the employees are covered by Cal/OSHA’s Aerosol Transmissible Diseases standard.
Some of these workplace requirements include evaluating COVID-19 hazards, providing training to employees, supplying face coverings, reporting positive COVID-19 cases, and creating a communication system to send information to and receive information from employees. There are also certain “return to work” requirements that must be filed after employees have been sent home due to a positive COVID-19 case or exposure to the virus.
Written COVID-19 Prevention Plan
The new workplace rules require a written COVID-19 Prevention Plan, which can either be included in an employer’s Injury and Illness Program, or as a separate item. The regulations provide a detailed list of information that must be placed in the plan.
Mandatory Employee Benefits to Limit Transmission of COVID-19
One particularly important subsection of the new workplace standards (California Code of Regulations Section 3205(c)(10)) provides certain added protections to employees who are required to be excluded from the workplace under the regulations for the purpose of limiting the transmission of COVID-19 in the workplace.
During the time that people are excluded from the workplace under the regulation, as long as the employee is otherwise able to work (in other words, there are no other non-COVID-19 related reasons for their absence from the workplace), employers must continue to maintain an employee’s “earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status.” Importantly, these mentioned earnings, rights, and benefits need to continue being provided, without interruption, while the worker is excluded from the workplace, “as if the employee had not been removed from their job.”
Employers should review and follow any other applicable law, employer policy, or collective bargaining agreement that provides for greater protections, since section 3205(c)(10) does not limit those greater protections.
Funding for Payment of Employee Benefits
Employers are allowed to use employer-provided employee sick leave benefits to provide the same level of earnings, rights, and benefits that are required under this subsection of the regulations. Employers may also consider using benefit payments from public sources where permitted by law and when not covered by workers’ compensation.
Information for Employees
At the time when the employer excludes the employee from the workplace, the employer must provide the employee with information of certain benefits that the employee could be entitled to. This includes information about (1) the COVID-19-related benefits that the employee may be entitled to under federal, state, or local laws, and (2) the requirement that the employer continue to provide the employee with the same earnings, benefits, and rights during the period of COVID-19-related workplace exclusion.
Exceptions to the Mandatory Employee Benefits
First, if the employer can prove that the COVID-19 exposure is not work related, the earnings, rights and benefits do not need to continue while the employee is away from the workplace.
Second, if the employee is unable to work for reasons other than to protect people from the workplace from possible COVID-19 transmission, the employee is not entitled to the same earnings, rights, and benefits while they are away from work.
Lastly, if an employee has been temporarily reassigned to work in a location so that they do not have contact with other persons until the specific return-to-work requirements are meet, then unless the employee was excluded or isolated by the local health department, the employee does not need to be excluded by the employer under this subsection. For example, if the employee is working from home or at a workplace location where there are no other people present, then the employee does not need to be excluded from the workplace.
Multiple COVID-19 Infections and COVID-19 Outbreaks
When a workplace has been identified by a local health department as an “outbreak location” or there are at least three COVID-19 cases in an exposed workplace in 14 days, a specific section applies, in addition to the general COVID-19 workplace rules, until there are no new COVID-19 cases in a 14-day period. These additional requirements include, but are not limited to, providing tests once a week and notifying the local health department of COVID-19 cases.
Major COVID-19 Outbreaks
When the workplace has 20 or more COVID-19 cases in a workplace within a 30-day period, a separate section applies in addition to the general workplace requirements until there are no new COVID-19 cases in a 14-day period. Here, the additional requirements include, but are not limited to, providing testing at least twice a week, performing an immediate review of policies, and correcting COVID-19 hazards.
Employer-Provided Housing Guidelines
There are also new guidelines for employer-provided housing. Employer-provided housing is “housing that is arranged for or provided by an employer, other person, or entity to workers, and in some cases to workers and persons in their households, in connection with the worker’s employment, whether or not rent or fees are paid or collected.” The two exceptions to this regulation apply when (1) the employer is a government entity, or (2) the housing is temporarily provided by a private employer and is necessary to conduct emergency response operations.
Employers who provide housing to their employees will now need to make sure to comply with a number of requirements, which includes placing beds six feet apartment, providing isolated living spaces to infected and exposed habitants, cleaning and disinfecting certain areas at least once a day, and providing face coverings. Employers will also need to assign housing units in a way to minimize the risk of spread and create policies in preparation for when COVID-19 testing is needed.
Employer-Provided Transportation Guidelines
Additional guidelines address employer-provided motor vehicle transportation that is used to transport workers to and from work. The new requirements include ensuring physical distancing, providing face coverings, screening for COVID-19 symptoms, cleaning and disinfecting certain areas between trips, allowing ventilation, and providing hand sanitizer.
These guidelines apply to most employers in most instances, unless (1) the driver and passengers are all from the same household, or (2) if the employer-provided transportation is necessary for responding to emergencies (i.e., firefighting, rescue and evacuation) and activities that directly aid response (i.e., utilities, communications, and medical operations).
Conclusion
Since these emergency regulations are now in effect, employers should take the steps necessary to comply with the five new code sections that are now in place through Cal/OSHA. Although these regulations are temporary, there is a possibility that they may be extended beyond the initial six-month period.