Cal/OSHA Board Adopts Emergency Regulations Regarding COVID-19 for Public Agencies

On November 19, 2020, pursuant to emergency rulemaking authority, the California Occupational Safety and Health Standards Board (“OSHSB”) adopted temporary regulations regarding measures that employers must undertake in order to prevent the spread of COVID-19 in the workplace (“emergency regulations”).

The emergency regulations, which will likely take effect on November 30, 2020, apply to public agencies.[1] Therefore, public agencies must take immediate action to ensure that their policies and practices conform to and comply with the new regulations. Most significantly, public agencies must prepare and implement a written COVID-19 Prevention Program (“CPP”), as described below.

The emergency regulations supplement general and industry-specific guidance that the Division of Occupational Safety and Health (“Cal/OSHA”) has provided since the beginning of the present public health emergency.

COVID-19 Prevention Program

As provided above, the most significant requirement under the newly adopted emergency regulations is that public agencies must prepare, implement, and maintain a written COVID-19 Prevention Program (“CPP”). This will be a burdensome and time-consuming undertaking given the voluminous regulatory requirements concerning subjects that the CPP must address.

In summary, the CPP must address each of the following eleven (11) subjects:

• System for communicating to employees about the following subjects related to COVID-19: (1) the symptoms associated with COVID-19; (2) possible exposures; (3) potential hazards related to COVID-19: (4) the policies and procedures for providing COVID-19 related accommodations; and (5) information about COVID-19 testing.

• Identification and evaluation of COVID-19 related hazards, including developing and implementing a system that provides for the following: (1) screening employees for symptoms associated with COVID-19; (2) responding to employees who present symptoms associated with COVID-19; (3) responding to individuals and employees who are present at agency worksites and facilities who are positive for COVID-19; and (4) conducting an assessment of potential workplace hazards, such as areas where people congregate. Furthermore, the regulations require that public agencies allow employee organizations to participate in the process of identifying and evaluating COVID-19 related hazards.

• Investigating and responding to COVID-19 cases in the workplace, including developing a procedure that provides for the following: (1) the investigation of COVID-19 cases; (2) the determination of important information about possible workplace exposures related to the COVID-19 case; (3) the provision within one (1) business day of notice to employees who may have been exposed to the virus that causes COVID-19 (as required by Assembly Bill 685); (4) offer free COVID-19 testing to all employees who had potential exposure to the virus; and (5) the preservation and protection of confidential medical information pursuant to the Confidentiality of Medical Information Act (“CMIA”).

• Correcting COVID-19 related hazards, including implementing policies and procedures to timely address unsafe or unhealthy workplace conditions.

• Training of and instruction for employees, including on the following subjects: (1) the symptoms associated with COVID-19; (2) the agency’s COVID-19 prevention policies and procedures; (3) COVID-19 related benefits, including leaves rights, that may be available to agency employees; (4) information about the transmission of the virus that causes COVID-19; (5) information about physical distancing and the benefits of physical distancing; (6) information about face coverings and the benefits of face coverings; and (7) information about hand washing and hand hygiene and the benefits of hand washing and hand hygiene.

• Physical distancing requirements and procedures to ensure that employees remain at least six (6) feet apart from one another, if possible.

• Face covering requirements and the availability of face coverings for employees.

• Site-specific engineering and administrative controls and procedures for the provision of personal protective equipment (“PPE”), including, but not limited to, the following: (1) installing partitions between work stations where it is not possible to maintain the physical distancing requirement; (2) increasing the supply of fresh air where possible; (3) implementing cleaning and disinfecting procedures; (4) evaluating the availability and adequacy of  handwashing locations; and (5) evaluating the need for additional PPE.

• Reporting, recordkeeping, and providing access to such reports and records, including the following: (1) reporting cases of COVID-19 to the local health department; (2) reporting disabling work-related COVID-19 illnesses to Cal/OSHA; (3) maintaining records of the steps that the public agency undertook to implement the CPP; (4) providing employees and employee organizations access to the CPP; (5) recording and tracking all COVID-19 cases with identifying information about the employee; and (6) providing employees and employee organizations access to the records of COVID-19 cases with identifying information removed.

• Removal from agency worksites and facilities individuals who have COVID-19 or were exposed to the virus that causes COVID-19.

• Minimum criteria to return to work for employees who have COVID-19.

The descriptions provided above summarize the information that public agencies must provide for in their CCPs, but are not a comprehensive summation of the regulatory requirements.

Public agencies that previously adopted and implemented a COVID-19 response plan, should review such plan to ensure that it complies with the expanded obligations to which public agencies are subject under the emergency regulations.

Significant Changes in the Law

Public agencies should take note the following regulatory requirements, which are likely to be new for most agencies:

• Public agencies must offer COVID-19 testing at no cost to employees, during their working hours, to all employees who had a potential COVID-19 exposure in the workplace.

• Public agencies must continue to provide compensation to employees who may not report to work because they have COVID-19 or are under an isolation order issued by a local or state health official. While this requirement effectively constitutes a new leave benefit, the regulations expressly provide that public agencies may use employee sick leave for this purpose.

• Public agencies may not require a negative COVID-19 test for an employee to return to work.

Protocol Where There are COVID-19 Outbreaks and Major Outbreaks

While not required to be incorporated as part of the CPP, the emergency regulations also require that public agencies implement the following protocols in the event the there is a COVID-19 “outbreak” in the workplace, consisting of three (3) or more positive cases in a 14-day period:

• Provide testing (immediately and one (1) week later) at no-cost to all employees who were present at the workplace during the outbreak period;

• Require that all employees with COVID-19 and who were exposed to the virus that causes COVID-19 do not report to work for the requisite period of time;

• Investigate the exposure, review the agency’s prevention and outbreak control policies and take corrective action as needed;

• Document the agency’s investigation of the exposure, policy review, and any corrective actions taken; and

• Notify the local health department within 48 hours after knowledge of the outbreak.

The regulations also require public agencies implement additional protocols if there is an outbreak of 20 or more COVID-19 cases within a 30-day period until there are no new cases for a 14-day period, including conducting twice-weekly testing and evaluating whether respiratory protection should be required and whether the employer’s operations should cease.

Conclusions

Given that the emergency regulations will likely take effect on November 30, public agencies must immediately adopt and implement a CPP that complies with the regulations. On November 30, Liebert Cassidy Whitmore created a template CPP available for purchase. Agencies that purchase this template CPP will be able to modify and customize the template to address specific agency policies and practices.

LCW Consortium members may purchase the template CPP here.  The template CPP for Non-Consortium members is available for purchase here.

Liebert Cassidy Whitmore attorneys are available to assist public agencies that have any questions or concerns about the CPP or other aspects of the emergency regulations.