new Emergency covid-19 safety regulations in california

According to Law360, the Office of Administrative Law approved a new set of emergency COVID-19 safety regulations governing most employers in the State of California.  These regulations went into effect on November 30, 2020.  The article described the new regulations as follows:

• "The regulations require employers to provide COVID-19 testing to all employees if there is a workplace outbreak, which is defined as three or more COVID-19 cases in an exposed workplace within a 14-day period.
• Employers are also required to provide free masks and personal protective equipment to all workers, to identify a 'competent employer representative to establish, implement, and maintain an effective written compliance action plan to protect employees' and to 'share the plan with employees and employee representatives.'
• The regulations also require the plan to identify specific workplace hazards that may expose employees to COVID-19 and 'adopt and implement feasible preventive measures to eliminate or minimize transmission risks.'
• After being in effect for 180 days, the regulations need to be either adopted as regular rule-making action by the board or be extended.
• In a change that will significantly affect the state's agricultural industry, where many seasonal workers are provided housing, the regulations require employers to space all beds at least six feet apart, and workers being transported must be spaced at least three feet apart.
• Employers would also need to abide by standards for reporting when a worker has tested positive for COVID-19, and pay any employees needing to quarantine for 14 days. They would also need to keep workers six feet apart or build barriers between them if it is not possible."  [FN 1]

According to the National Law Review, "California employer’s COVID-19 Prevention Program must include, at a minimum:

• A system for communicating, in a form readily understandable by its employees and without fear of reprisal: (a) possible COVID-19 exposures and hazards; (b) policies for accommodating employees with medical or other conditions that put them at increased risk of severe COVID-19 illness; (c) information about access to COVID-19 testing; and (d) information about COVID-19 hazards and the employer’s COVID-19 policies and procedures, to employees and to other employers, persons, and entities within or in contact with the employer’s workplace.
• The identification and evaluation of COVID-19 hazards, which must: (a) allow employees and authorized employee representatives to participate in this process; (b) include the development and implementation of a process for screening employees for and responding to employees with COVID-19 symptoms; (c) develop COVID-19 policies and procedures to respond effectively and immediately to individuals in the workplace who have COVID-19 to prevent the risk of transmission; (d) conduct a workplace-specific identification of all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards; (e) for indoor locations, evaluate how to maximize outdoor air and whether it is possible to increase filtration efficiency to the highest level compatible with the existing ventilation system; (f) include a review of applicable orders and guidance from state and local health departments related to COVID-19 hazards and prevention; (g) evaluate existing COVID-19 prevention controls at the workplace and the need for different or additional controls; and, (h) include periodic inspections to identify unhealthy conditions, work practices, and work procedures related to COVID-19 and to ensure compliance with COVID-19 policies and procedures.
• A process for investigating and responding to COVID-19 cases in the workplace, which must: (a) include procedures for verifying COVID-19 case status, receiving information regarding COVID-19 test results and onset of COVID-19 symptoms, and identifying and recording COVID-19 cases; (b) when there has been a COVID-19 case in the workplace, determine when the individual was last present, was first experiencing symptoms, and was tested, who may have had exposure to the individual, give notice within one business day to employees and contractors who may have been exposed (without revealing any personal identifying information about the individual with COVID-19), offer COVID-19 testing at no cost to potentially exposed employees during their working hours and provide them information on benefits, and investigate whether any workplace conditions could have contributed to the risk of exposure and steps to reduce exposure; (c) keep the personal identifying information of COVID-19 cases or persons with COVID-19 symptoms confidential; (d) keep any medical records resulting from this process confidential.
• The correction of COVID-19 hazards, which must include the implementation of effective policies and/or procedures for correcting any unsafe or unhealthy conditions, work practices, policies and procedures in a timely manner based on the severity of the hazard.
• Training and instruction on: (a) the employer’s COVID-19 policies and procedures for protecting employees against hazards; (b) information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws (including workers’ compensation law, the Families First Coronavirus Response Act, Labor Code sections 248.1 and 248.5, Labor Code sections 3212.86 through 3212.88, local governmental requirements, the employer’s own leave policies, and leave guaranteed by contract); (c) the fact that COVID-19 is an infectious disease that can be spread through the air, may be transmitted when a person touches a contaminated object and then touches their face, and that an infectious person may have no symptoms; (d) methods of distancing of at least six feet and the importance of combining physical distancing with the wearing of face coverings; and (e) the fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing must be combined with other controls, including face coverings and hand hygiene, to be effective; (f) the importance of effective handwashing and using hand sanitizer, and that hand sanitizer does not work if the hands are soiled; (g) the proper use of face coverings and that they are not respiratory protective equipment; and, (h) COVID-19 symptoms, and the importance of not coming to work and obtaining a COVID-19 test if the employee has COVID-19 symptoms.
• Physical distancing, including through the use telework or other remote work arrangements; reducing the number of persons in an area at one time, including visitors; visual cues such as signs and floor markings to indicate where employees and others should be located or their direction and path of travel; staggered arrival, departure, work, and break times; and adjusted work processes or procedures, such as reducing production speed, to allow greater distance between employees.
• The use of face coverings, including: (a) providing clean and undamaged face coverings and ensuring they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person, and where required by orders from the CDPH or local health department.; (b) when employees are exempt from wearing face coverings (g., due to a medical or mental health condition); (c) procedures for employees not wearing face coverings; (d) allowing employees to wear face coverings unless it could create a safety hazard; (e) measures to communicate face covering requirements to non-employees; and (f) developing COVID-19 policies and procedures to minimize employee exposure to COVID-19 hazards originating from any person not wearing a face covering.
• Other engineering controls, administrative controls, and personal protective equipment, including the use of partitions, improving ventilation, cleaning and disinfecting procedures, the improvement of handwashing facilities, and the use of personal protective equipment (PPE).
• Reporting, recordkeeping, and access
• The exclusion of COVID-19 cases from the workplace.
• Return to work criteria, including for symptomatic COVID-19 cases and non-symptomatic COVID-19 cases.

California employers may find Cal/OSHA COVID-19 guidance and resources here ... Cal/OSHA can enforce non-compliance with the new Standard through civil penalties, ranging in size depending on the severity of the violation.  The standard will remain in effect and enforceable for six months after the effective date, but may be extended for up to 14 months."  [FN 2]

Footnotes

1. ​See https://www.law360.com/articles/1333683/calif-emergency-covid-19-workplace-rules-take-effect
2. See https://www.natlawreview.com/article/calosha-votes-to-implement-strict-covid-19-workplace-protections-california-workers

Smith Shapourian Mignano PC is available to answer any questions or concerns you may have regarding compliance.

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