Although it is expected that under a Biden administration the federal Occupational Safety and Health Administration (OSHA) will adopt nationwide Emergency Temporary Standards (ETS) for employers regarding COVID-19, some states already have done so, most recently California.
Union leaders have been calling for an ETS from OSHA, which under the Trump Administration has chosen instead to use the General Duty Clause to enforce its guidances, rather than write new rules. As a result, the union-friendly states of Virginia and more recently, Michigan and Oregon chose to adopt their own ETS to deal with pandemic employer issues..
The highly detailed and lengthy new California ETS have significance that reaches far beyond the state’s borders because so many American businesses are either based in that state or have employees located there.
Those employers need to take immediate note because although the effective date for the new standards is Jan. 1, 2021, Cal/OSHA can rely on its COVID-19 related guidance to enforce against employers that have not implemented preparedness plans or procedures, says attorney Cressinda D. Schlag of the Jackson Lewis law firm.
The new ETS, called the COVID-19 Prevention Rule, is unique in that it is performance-based and adds to the host of requirements imposed by the state’s public health departments, according to Schlag. In addition to Cal/OSHA enforcing the new standard, California employers need to make sure that their efforts to manage COVID-19 will adhere to both the new COVID-19 Prevention Rule and orders issued by state and local public health departments.
“Employers with California workplaces subject to the COVID-19 Prevention Rule may, in fact, have to contend with additional or more restrictive obligations under applicable state or local health department orders on top of the rule’s many requirements,” she stresses.
Employers also need to be diligent in implementing the measures required by the rule because Cal/OSHA has expanded enforcement authority under the AB 685 law enacted in September. That law allows Cal/OSHA to issue Orders Prohibiting Use in certain circumstances where it believes that COVID-19 presents an imminent hazard.
The new law also allows the agency to issue citations alleging serious violations of occupational health and safety requirements related to COVID-19 without giving employers 15-day pre-citation notice to pursue enforcement of employers’ violations related to COVID-19 hazards.
In fact, under the Prevention Rule and AB 685, Cal/OSHA can issue orders compelling certain actions, such as COVID-19 testing, preventive measures or worksite closures, Schlag observes. Cal/OSHA also is allowed to issue citations to employers for COVID-19 related violations without providing a pre-citation notification.
Employer Obligations Grow
The rule covers all workplaces in California, except those with only one employee who has no contact with others, employees who are working remotely from their homes, and employees who are covered by Cal/OSHA’s Aerosol Transmissible Disease Standard (almost exclusively those who work in hospitals, nursing homes and perform other medical services).
The new rule imposes the following minimum requirements on all covered California workplaces:
Prevention program. Employers must establish and maintain an effective written COVID-19 prevention program, including procedures for communicating disease information and for identifying and responding to COVID-19 hazards. Also required are procedures for investigating and responding effectively to workplace cases, including notifications for potential exposures, methods for correcting hazards, and training employees on virus hazards and controls.
Preventive measures. These must include physical distancing by six feet and requiring face coverings, except in limited circumstances. Engineering and preventive controls must include physical barriers, markings, optimized ventilation, and cleaning and disinfecting procedures. Also required are handwashing facilities and personal protective equipment (PPE), such as gloves, face shields, face masks, goggles and respirators.
Reporting and recordkeeping. Employers must report information to their local health department when required or requested, report COVID-19 cases that result in a serious illness or death to Cal/OSHA, maintain records relevant to COVID-19 cases, and do so in a confidential manner and consistent with Cal/OSHA medical records regulations.
Worker exclusions. Workers must be excluded from the workplace who have COVID-19 or were exposed and do not meet set criteria for returning. Workers who have had an exposure to COVID-19 in the workplace must, without exception, be kept away for at least 14 days.
Management of infections and outbreaks. For workplaces that a health department determined to have had an outbreak and those with three or more cases within a 14-day period, employers must provide testing within a week to employees at that workplace. Employers are responsible for testing costs and may need to provide ongoing testing if found necessary by Cal/OSHA, the health department, or to manage an ongoing outbreak.
Case investigations. Employers must immediately investigate COVID-19 cases and potential outbreaks to find out if workplace-related factors contributed to the case or outbreak and take immediate action to address any identified hazards.
Case notifications. Employers must report outbreaks (defined as three or more positive cases of COVID-19 within a 14-day period) to their local health departments within 48 hours of learning about the outbreak.
Cover Every Eventuality
Cal/OSHA’s Prevention Rule requires that employers having a major COVID-19 outbreak take additional actions to prevent and minimize the spread, Schlag explains. A major outbreak is defined as a workplace that has had 20 or more COVID-19 cases within a 30-day period.
If a major outbreak occurs, employers must comply with certain requirements until no new COVID-19 cases have been detected in the workplace for a 14-day period. These requirements include:
• Employer-provided COVID-19 testing for all workers at least twice a week.
• Exclusion of workers who have COVID-19 or experienced an exposure from the workplace.
• Conduct ongoing COVID-19 case investigations.
• Conduct COVID-19 hazard assessments and corrections, which may require adjustments in ventilation, respiratory protection requirements, change in operations, or other control measures deemed necessary by Cal/OSHA.
• Meet ongoing COVID-19 notification obligations.
If employers provide transportation for employees to and from work or as part of their job duties, prescribed precautions must be implemented. Among these are emphasizing transportation assignments that minimize workers sharing transportation with others who do not share a common household, use of physical distancing if possible and requiring drivers and riders to wear face coverings.
Employers providing employee transportation also must maintain effective screening procedures to prevent sick drivers or riders from sharing a vehicle. All vehicle high-contact surfaces must be cleaned and disinfected between trips, and drivers and riders must have access to sanitizing supplies.
Employers who provide housing accommodations for employees need to take other measures. In addition to providing the usual social distancing rules and adequate PPE for the residents, the employer must implement physical distancing controls by redesigning housing spaces to maximize distance between individuals, limit capacity of common areas, and ensure separation of individuals’ beds and furniture.
“Cal/OSHA’s COVID-19 Prevention Rule will upend California employers’ operations and workplace safety measures,” Schlag declares, because its new programmatic and preventive requirements go beyond Cal/OSHA’s prior guidance.
Employers will need to develop new written program materials and comply strictly with preventive measures, such as the six-foot distancing rule. “This burden to show that physical distancing is ‘not possible’ diverges from other occupational health and safety regulations and requirements where employers can show generally that compliance with a requirement is infeasible rather than impossible,” she notes.
The rule sets up significant compliance hurdles for employers in the form of COVID-19 case management requirements, mandatory worker exclusions and required testing, Schlag adds. For example, employers must provide employees on-site COVID-19 testing during working hours in some situations. This means employers need to make arrangements for testing before a potential outbreak to ensure testing resources are available, especially if testing options are limited near the worksite location.
Employers also will need to coordinate testing services, maintain corresponding records as confidential medical information, and establish controls to prevent improper disclosure of employees’ private health information, she points out.
In addition, because the rule does not supersede state or local health department requirements, compliance with the rule alone may not satisfy all workplace COVID-19 requirements in the state, Schlag says. Employers may need to balance different requirements in different California counties and cities. This will be a challenge for employers because of conflicting requirements due to differences in health department orders, guidances and recommended practices.
“Indeed, because of significant differences in safety requirements in the COVID-19 Prevention Rule, emergency temporary standards adopted in several states, frequent changes in CDC guidance, and more stringent or additional obligations imposed by health department orders, employers may be unable to establish a consistent or uniform COVID-19 response plan and procedures across all of their operations,” Schlag asserts.