COVID-19 Emergency Temporary Standards: What Do Employers Need to Know?
Recognizing that the COVID-19 pandemic will not be leaving us soon, the California Occupational Safety and Health Standards Board recently proposed changes to the California Code of Regulations to address COVID-19 prevention measures for the workplace. The Board’s Emergency Temporary Standards (“ETS”) were adopted by the Board on November 20, 2020, and approved by the Office of Administrative Law on November 30, 2020, making them immediately effective for the following 180 days, with possible extensions. The key aspects of the ETS are a written COVID-19 Prevention Program, and requirements for notifying employees of possible workplace exposure, as well as employer-provided COVID-19 testing, both optional and mandatory, depending on the situation. The ETS also mandates when employees must be excluded from the workplace and the criteria that must be satisfied before they may return to work. Notably, the ETS requires employers to continue and maintain an employee’s earnings, seniority, and other employee rights and benefits for the period the employee is excluded from work. On December 14, 2020, Governor Newsom issued Executive Order N 84-20 updating the ETS, modifying the quarantine period for asymptomatic individuals exposed to COVID-19 to 10 days. In his news release, the Governor explained this update was in keeping with updated guidance from the California Department of Public Health related to COVID 19 quarantine periods.
The rapid adoption of the ETS has resulted in a flurry of informational materials designed to help employers comply with these significant new obligations. Cal-OSHA has a dedicated webpage of resources. See: https://www.dir.ca.gov/covid19/ On this page, you will find, among other things, links to the following:
Cal OSHA’s Model Program to assist employers to develop the required written COVID-19 Prevention Program (posted December 1, 2020). See https://www.dir.ca.gov/dosh/dosh_publications/CPP.doc
COVID-19 FAQs that will be expanded on an ongoing basis to help in understanding the ETS (posted December 1, 2020). See https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html
A Fact Sheet on what employers need to know (posted December 1, 2020). See https://www.dir.ca.gov/dosh/dosh_publications/COVIDOnePageFS.pdf
Training webinars on COVID-19, which Cal OSHA consultation plans to develop. When ready, you will be able to find these webinars at: https://www.dir.ca.gov/dosh/coronavirus/Webinars.html
The state of California has also prepared materials to help in understanding benefits available to employees unable to work due to COVID-19. See: https://www.dir.ca.gov/dlse/Comparison-COVID-19-Paid-Leave.html and https://www.labor.ca.gov/coronavirus2019/#chart
On Governor Newsom’s website, you can find a link to Executive Order N84-20: https://www.gov.ca.gov/wp-content/uploads/2020/12/12.14.20-EO-N-84-20-COVID-19.pdf
You can also find the California Department of Public Health’s updated Guidance relating to COVID-19 quarantines dated December 14, 2020: https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID-19-Quarantine.aspx
As you tread your way through the quagmire of resources, you may be asking what is essential to know? The ETS and FAQs, along with E.O. N84-20 and the CDPH Guidance, referenced above, will provide plentiful details as to what currently exists, but in its simplest form it boils down to this:
- You must have a written COVID-19 Prevention Program with 11 specific elements.
- You must provide COVID-19 training that covers specified topics, including what is COVID-19, how it is transmitted, and what measures should be taken to prevent transmission of the disease.
- In a non-outbreak setting, you must:
a. Provide written notice to employees, within one business day, of a COVID-19 exposure in the workplace.
b. Offer COVID-19 testing to all potentially exposed employees at no cost and during work hours in the event of a COVID-19 exposure in the workplace. Potential exposure is determined by “close contact” (within 6 feet for 15 minutes in the aggregate during any 24 hour period) during the “high-risk exposure period.”
i. For COVID-19 cases who develop COVID-19 symptoms, the high-risk exposure period is from two days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
ii. For persons who test positive but never develop COVID-19 symptoms, the high-risk exposure period is from two days before until ten days after the specimen for their first positive test for COVID-19 was collected.
c. Exclude from the workplace employees who test positive for COVID-19 and employees with COVID-19 exposure, and follow the requirements for preserving their pay and benefits if the employee is able and available to work.
d. Follow the criteria for returning excluded employees to work.
e. Investigate the exposure and address hazards.
f. Follow the COVID-19 recordkeeping and reporting requirements.
- In an “outbreak” setting (three or more COVID-19 cases in an “exposed workplace” within a 14-day period or identified as an outbreak by a local health department), you are required to provide a COVID-19 test to all employees in the exposed workplace at no cost during work time, as well as follow the written notice requirement, exclude positive and exposed cases from the workplace and repeat testing at weekly intervals until the workplace no longer qualifies as an “outbreak.”
The COVID-19 ETS FAQs provide further detail about the terms used and what must happen in the event of a major outbreak.
Significantly, the requirement for preserving employees’ pay and benefits does not apply if the employee’s COVID-19 exposure was not work-related. In addition, the employee must be “able and available“ to work; the requirement does not apply to any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission.
Despite all the written resources, many questions still abound. To date, employers have asked, for example, what if an employee refuses the COVID-19 test that you are required to provide? You cannot force someone to take a COVID-19 test if they don’t want one, but you can exclude them from your workplace, and that is what you will likely have to do. Another frequently raised question is how long must you “continue and maintain earnings”? An asymptomatic exposed employee should be able to return to work after completing a 10-day quarantine period. But in an outbreak situation employees are supposed to be tested weekly in order to remain at the workplace. If an employee refuses testing, arguably the employee is not “able and available” to work and therefore may not be eligible to be paid. Keep in mind that even if an employee is “able and available“ to work, the employer may apply paid sick leave benefits toward the total amount of pay owed, and can avoid paying anything upon demonstrating that the COVID-19 exposure was not work-related. As of the publication date of this article, news about the distribution of a COVID-19 vaccine was breaking. Let’s all hope for a 2021 in which COVID-19 cases are no longer a daily headline.
Please contact your Sacks Ricketts & Case employment attorney if you have questions or would like further information about the Emergency Temporary Standards.
The contents of this newsletter are intended for general informational purposes only and should not be construed as legal advice or a legal opinion. You are advised to consult an attorney about any specific legal question.