by Alexandra Saddik and Jonathan Babione
In November 2020, Cal/OSHA released extensive Emergency Temporary Standards that became effective on November 30, 2020. Cal/OSHA continues updating the guidance on implementing these standards, with the latest update occurring on January 8, 2021. Here are the top three things businesses need to know about the Cal/OSHA standards:
1. All businesses must implement a COVID-19 Prevention Program.
Employers must either incorporate the elements of the COVID-19 Prevention Program in their Injury and Illness Program or have a separate, written COVID-19 Prevention Program. The basic categories that should be included to comply with this requirement are:
- A system for communicating and training employees on policies and procedures relating to COVID-19, including reporting possible exposure
- A system for identifying, evaluating, and correcting potential COVID-19 hazards
- Procedures for investigating and responding to COVID-19 cases in the workplace
- Prevention protocols including but not limited to physical distancing, the use of face coverings, and engineering controls designed to mitigate the risk of COVID-19 in the workplace
- Recordkeeping policies related to COVID-19
Cal/OSHA provides a template that employers can use to create a compliant Prevention Program.
2. Employers are required to exclude COVID-19 cases and close contacts from the workplace until they meet the return-to-work criteria.
When an employer finds out that an employee is a confirmed COVID-19 case, the employer must send the employee home to isolate. The employer must then determine who was exposed, based on when the COVID-19 case was last present in the workplace, the date of a positive test, and/or when the employee started to be symptomatic. Anyone with potential exposure must be notified within one business day. Potential exposure is defined as being within six feet of the sick employee for at least 15 minutes in a 24-hr. period. Employees with COVID-19 exposure must also be excluded to quarantine. Employers must offer exposed employees free testing during working hours.
Since there is a rebuttable presumption that an employee’s COVID-19 exposure took place in the workplace, it is also recommended that businesses report possible COVID-19 exposure to their worker’s compensation insurance.
As doctors and scientists learn more about COVID-19, the quarantine and isolation procedures—which form the basis of the return-to-work criteria—are being updated regularly. Currently, employees who test positive but are asymptomatic must remain in isolation for 10 days from the date of the first positive test. Employees who test positive and are symptomatic must remain in isolation for at least 10 days and may not return to work until symptoms improve and at least 24 hours have passed since a fever resolved without the use of fever-reducing medications. Employees with a COVID-19 exposure but test negative must quarantine for 10 days since the last exposure. A negative test is not required for returning to work.
Cal/OSHA requirements do not replace local county requirements. Businesses should check their local counties for any additional notices or procedures they must follow to comply with county rules. The most restrictive provision prevails.
3. Employees must be paid if excluded from the workplace due to workplace-related COVID-19 exposure.
Cal/OSHA recently provided further guidance on this part of the emergency standard. Per the supplemental guidance, employers are required to maintain the excluded employee’s pay and benefits if the employee is otherwise available and able to work. This means that exclusion pay is not required if the employee is too sick to work.
Additionally, exclusion pay under Cal/OSHA is only applicable to workplace-related COVID-19 cases and exposure. If an employer is able to establish that the COVID-19 exposure did not occur in the workplace, the employer is not required to provide exclusion pay under Cal/OSHA. The employer must show thorough investigation and evidence that it is more likely than not that the exposure did not occur in the workplace. Employers should maintain comprehensive documentation of any contact tracing or COVID-19 investigations that took place in the workplace.
Employers may require the employee to exhaust paid sick leave or other benefits before allowing employees to tap into the Cal/OSHA exclusion pay provision.
Ferber Law is ready to assist you in ensuring compliance with all of the Cal/OSHA standards, including preparing a COVID-19 Prevention Program.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.