Cal/OSHA Standards Board Adopts Emergency Temporary COVID-19 Standards

Cal/OSHA Standards Board Unanimously Adopts Emergency Temporary COVID-19 Standards

The Department of Industrial Relations’ (DIR) Occupational Safety and Health Standards Board has adopted emergency temporary standards addressing a variety of issues related to COVID-19 in the workplace. Cal/OSHA has submitting the new COVID-19 prevention standard to the Office of Administrative Law (OAL) for review. As an emergency regulation, the OAL has ten days to review and approve the regulation, meaning this new standard could go into effect as early as this week. The emergency standards will last 180 days and may be renewed beyond that time. Cal/OSHA is expected to issue compliance guidance on the new rules and will likely move forward with permanent rulemaking next year.

The CLC expressed concerns to these proposed regulations, as we saw them as potentially confusing to contractors, as much of what the new standard requires is duplicative of recently enacted state law and issued guidance.

For example, the emergency standard contains notification requirements similar to those in AB 685, California’s COVID-19 notice and reporting requirement law that takes effect January 1, 2021.  While both AB 685 and the standards target prompt notification, there are differences in language, definitions and terminology between AB 685 and the new Cal/OSHA standard, which raise uncertainty about when the notice requirements are triggered and to whom notice should be given under each rule. Of particular concern, is the standard’s impact on our industry wage and hour policies. The temporary standards require employers to exclude COVID-19-positive employees and those who have been exposed to COVID-19 from the workplace until the return-to-work requirements are met.  During this time, employers may be required to maintain these employees’ “earnings, seniority, and other rights and benefits.” Yet, the regulation does not explain how an employee’s earnings should be calculated if the employee is an hourly, non-exempt employee. In addition, the paid time off provisions in these emergency standards are not only controversial as many experts don’t believe Cal/OSHA has authority to require paid time off by regulation, they are also duplicative of federal and state law. Practically speaking, employers are already required to provide COVID-19 related paid time off.  Employers with less than 500 employees fall under federal law requiring paid time off for COVID-19 incidents under the federal Families First Coronavirus Response Act (FFCRA), and larger employers, that have over 500 employees, are covered under state law (AB 1867).

In addition, the state has already issued guidance documents, directives and rules that our industry is currently following.  These include:

California Code of Regulations Title 8, Section 1509 – Injury and Illness Prevention Program for the construction industry – https://www.dir.ca.gov/title8/1509.html

Governor’s “COVID-19 Employer Playbook – Supporting a Safer Environment for Workers and Customers” – https://files.covid19.ca.gov/pdf/employer-playbook-for-safe-reopening–en.pdf

California Department of Public Health’s “COVID-19 Industry Guidance for Construction” – https://files.covid19.ca.gov/pdf/guidance-construction–en.pdf

Cal/OSHA’s “COVID-19 Infection Prevention in Construction” – https://www.dir.ca.gov/dosh/coronavirus/COVID-19-Infection-Prevention-in-Construction.pdf

That said, the COVID-19 temporary standards apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. Under the new regulations, employers must have a written COVID-19 Prevention Plan that addresses the following:

  • A system for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
  • Identification and evaluation of hazards – screening employees for symptoms, identifying workplace conditions and practices that could result in potential exposure.
  • Investigating and responding to cases in the workplace – responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one business day about potential exposures, and offering testing to workers who may have been exposed.
  • Correcting COVID-19 hazards – including correcting unsafe conditions and work practices as well as providing effective training and instruction.
  • Physical distancing – implementing procedures to ensure workers stay at least six feet apart from other people if possible.
  • Face coverings – providing face coverings and ensuring they are worn.
  • Adopting site-specific strategies such as changes to the workplace and work schedules and providing personal protective equipment to reduce exposure to the virus.
  • Positive COVID-19 case and illness recording requirements and making the COVID-19 Prevention Plan accessible to employees and employee representatives.
  • Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
  • Criteria for employees to return to work after recovering from COVID-19.
  • Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
  • Specific requirements for infection prevention in employer-provided housing and transportation to and from work.

Contractors will need to immediately take steps to adhere to these new requirements. While much of the emergency temporary standards reflect state law or previous Cal/OSHA voluntary guidance that many contractors are already following, there are many specific requirements that are new and significant. Contractors should consult with their safety, hygiene, and legal advisors on developing a written COVID-19 Prevention Program as well as developing or amending their policies to account for the new requirements.

In an effort to ensure you have all related and referenced information, please find below summaries and requirement overviews for AB 685, AB 1867, SB 1159 and the Cal/OSHA emergency temporary standards.

Cal OSHA COVID-19 Emergency Temporary Standards FAQ

AB 1867 COVID-19 Paid Leave Overview and FAQ

AB 685 COVID -19 Workplace Notification Requirement Overview

SB 1159 COVID-19 Workers’ Compensation Overview