Cal/OSHA Provides Questions and Answers Regarding New Regulations Related to COVID-19

On January 8, the Department of Occupational and Safety (Cal/OSHA) updated its interpretive guidance concerning emergency COVID-19 regulations that took effect on November 30, 2020. The guidance reflects new information concerning employer obligations and employee entitlements under both Title 8 Sections 3205 and 3205.1, which, respectively, relate to the COVID-19 Prevention Program (CPP)[1] and workplace COVID-19 outbreaks[2].

While Cal/OSHA provides additional information on more than three dozen topics, the purpose of this special bulletin is to provide operational guidance on the more important of these topics,  including: (1) the scope of the regulation’s coverage as it pertains to certain employees; (2) employer testing obligations in the event of “close contact” exposures[3] and/or COVID-19 outbreaks; (3) clarification concerning the definition of an “exposed workplace” for purposes of establishing that a COVID-19 outbreak has occurred; and (4) employer requests to Cal/OSHA to waive the exclusion or quarantine requirements for certain employees.

In addition to describing the Cal/OSHA updates in this special bulletin, Liebert Cassidy Whitmore also updated our template CPP for consortium and non-consortium members and guide to reflect this information. Employers that purchased the template will be receiving the updated version. Other employers should consider purchasing the updated LCW template and guide in order to revise their own CPP documents.

Scope of Regulatory Coverage

Cal/OSHA clarifies the scope of coverage for its regulations, including as it relates to the following two (2) groups of employees: (1) employees who are or may be subject to a related regulation, Section 5199, which concerns Aerosol Transmissible Diseases (ATDs); and (2) employees who are vaccinated for COVID-19.

Employees Who May Perform “Services” Covered by Section 5199

Section 3205 expressly exempts from coverage “[e]mployees when covered by [Title 8] Section 5199”.[4] That regulation covers “health care facilities, services, or operations”, and also certain “services”, including those provided by some firefighters and police officers.[5]

Specifically, Section 5199 applies to “[p]aramedic and emergency medical services including these services when provided by firefighters and other emergency responders.”[6] Section 5199 also applies to “[p]olice services, provided during transport or detention of persons reasonably anticipated to be cases or suspected cases of aerosol transmissible diseases; and police services provided in conjunction with health care or public health operations.” Therefore, firefighters and police may be covered by Section 5199, and exempt from Section 3205, when those employees are actually performing the specific services described above.

While Cal/OSHA’s updated guidance discusses employees who work in facilities and operations covered by Section 5199, it omits reference to employees whose coverage depends on the services that the employee performs. The guidance provides that if an employee works in a “single workplace” or “facility or operation” “that is within the scope of section 5199”, the employee is covered by the requirements of Section 5199, and not Section 3205.[7] The guidance does not discuss “services” at all nor does it describe how employers of safety employees should approach or manage the two regulatory schemes to which firefighters and police officers may be subject depending on the services that they perform. Specifically, the guidance does not answer the question as to whether a safety employee who may occasionally perform the “services” that are within the scope of Section 5199, but do not work at a “facility or operation” covered by that regulation, is covered by Section 3205 or 5199 or both regulations.

As a result of the lack of guidance provided by Cal/OSHA on this subject, Liebert Cassidy Whitmore recommends that, unless the employee in question works at a “facility or operation” covered by Section 5199 or is actually performing one of the “services” expressly covered by that regulation, the employee’s employer should consider that such employee is covered by Section 3205.

Employees Who are Vaccinated Remain Subject to Regulatory Requirements

The Cal/OSHA guidance also provides that, for the time being at least, the scope of coverage for the regulations includes employees who have been vaccinated for COVID-19.[8] Cal/OSHA suggests that this guidance may change in the future, but that the regulatory requirements currently cover such employees and the employers of such employees. Liebert Cassidy Whitmore advises employers, particularly those with vaccinated employees, to monitor guidance from Cal/OSHA on this topic.

Testing Obligations in the Event of “Close Contact” Workplace Exposures and “COVID-19 Outbreaks”

In addition to issues related to the scope of coverage, Cal/OSHA also clarifies several points about an employer’s obligations regarding testing employees for COVID-19 in the event that there is a “close contact” exposure under Section 3205 or a “COVID-19 outbreak” under Section 3205.1.[9]

First, Cal/OSHA clarifies that there is no difference between the regulatory requirement to “offer testing” to employees who had a “close contact” COVID-19 exposure in the workplace[10] and the requirement to “provide COVID-19 testing” to all employees at the “exposed workplace” in the event of a COVID-19 outbreak[11]. This guidance clarifies confusion concerning whether the use of different verbiage entailed different obligations to employees under each circumstance.

Second, Cal/OSHA provides that the employer does not need to offer employees COVID-19 testing in or at their worksite following a “close contact” exposure or a COVID-19 outbreak, but can offer such testing at off-site locations. The construction of both Sections 3205 and 3205.1 was unclear on this point and contributed to confusion as to whether employers were required to provide testing to employees in or at the workplace where the exposure or potential exposure occurred or just to those employees who were in or at that workplace.[12] Cal/OSHA’s guidance clarifies that there is no obligation to provide the requisite testing at any specific location.

Relatedly, Cal/OSHA provides that, in order to discharge their obligations to provide “free testing” for employees under both Section 3205 and 3205.1, the employer may send such employees to an off-site testing location and during non-working hours, but must ensure that such employees “incur no costs for the testing.”[13] As a result, employers must provide such employees compensation for their travel time and the costs incurred for such travel as well as pay for the time actually being tested, if during non-working hours.[14]

While these clarifications are consistent with Liebert Cassidy Whitmore’s prior interpretations of the regulation and advice provided to clients, we reiterate our advice to employers to do the following: (1) offer testing to all employees who had “close contact” exposure to someone with COVID-19 while at work or who were at the “exposed workplace” during a COVID-19 outbreak; (2) compensate employee for the testing either by providing such testing during the employee’s regular working hours or by supplementing the employee’s pay for the time spent being tested during non-working hours; and (3) either provide employee testing at the employer’s worksite or compensate employees for costs incurred by employees traveling to and from the off-site testing location.

While Cal/OSHA provided some useful information concerning employers’ testing obligations, the guidance did not address whether an employer may permissibly direct an employee to be tested by the employee’s health care provider if the employer reimburses the employee for the health insurance costs, if any, charged to the employee for such testing. This legal issue is presently unsettled. Until Cal/OSHA answers this question, employers should recognize that there are risks associated with requiring that employees incur expenses associated with their actual testing, even if the employer reimburses such expenses.

Clarification as to What Constitutes an “Exposed Workplace” for Purposes of Establishing the Existence of a COVID-19 Outbreak and Related Employer Obligations

Cal/OSHA provides guidance concerning the conditions necessary for the establishment of a COVID-19 outbreak under Section 3205.1.

Cal/OSHA provided that, in order to establish a COVID-19 outbreak and trigger the resulting regulatory obligations under Section 3205.1, the “exposed workplace” is not an entire workplace or building, but rather “only the areas of the [workplace or] building where the COVID-19 were present,” including a specific “work location, working area, or common are used or accessed by a COVID-19 case.”[15] This interpretive guidance narrows the scope of the physical area in which three (3) or more COVID-19 cases must be present in order for there to be an “outbreak.”

Cal/OSHA further clarifies that it “does not expect employers to treat areas where masked workers momentarily pass through the same space without interacting or congregating as an ‘exposed workplace,’ so they may focus on locations where transmission is more likely.”[16] Finally, Cal/OSHA indicates that separate non-overlapping shifts who work at the same location may each constitute a “separate ‘exposed workplace.’”[17]

Taken together, Cal/OSHA’s interpretations allow for an employer to disaggregate the specific “workplaces” that may comprise a single “worksite”, which may significantly reduce the likelihood of COVID-19 outbreaks under the regulation. As a result, Liebert Cassidy Whitmore recommends that employers subdivide large worksites into smaller workplaces. Further, in the event that there are three (3) or more COVID-19 cases at a worksite, we recommend that the employer identify whether there were a sufficient number of such COVID-19 cases in any one of the specifically identified workplaces necessary in order for the COVID-19 cases to constitute a COVID-19 outbreak at such workplace. Relatedly, Cal/OSHA states that it will consider an employer’s good faith effort to comply with the regulations before issuing any citations or monetary penalties.[18]

Request for Cal/OSHA Waiver of the Regulatory Exclusion/Quarantine Requirement

Cal/OSHA provides information regarding how and under what circumstances an employer may request that Cal/OSHA waive the requirement that employees be excluded from employer worksites and facilities following a “close contact” exposure or COVID-19 diagnosis.[19] The underlying regulation provided no information about how to request such a waiver from Cal/OSHA.[20]

Cal/OSHA clarifies that such requests should only be made if the absence of such employee from the employer’s worksite would cause a staffing shortage that would have an “adverse on a community’s health and safety” and pose an undue risk to the community’s health and safety as a result.[21] The guidance makes clear that the type of operations that may qualify for waiver are “narrower than the definition of ‘critical infrastructure’” and that Cal/OSHA will not provide waivers to employers in anticipation of a future workplace exposure or outbreak, but only if such exposure or outbreak has occurred.[22]

While Cal/OSHA does not discuss guidance provided the California Department of Public Health (CDPH) the quarantines following “close contact” exposure, Liebert Cassidy Whitmore interprets the Cal/OSHA waiver as separate and distinct from the expedited return to work provided to certain employees under the CDPH framework. While this question is untested and therefore unsettled, the firm interprets Cal/OSHA guidance as potentially authorizing the immediate return to work for individuals following a “close contact” exposure or COVID-19 diagnosis under the emergency circumstances described in the regulation and associated guidance.

The Cal/OSHA guidance provides for how an employer may request a waiver. An employer should submit the request to rs@dir.ca.gov, but that in the event of an emergency, an employer may request a provisional waiver by contacting the local Cal/OSHA office while the employer prepares the written waiver request. The written waiver request should provide the following:

1. Employer name and business or service;
2. Employer point-of-contact name, address, email and phone number;
3. Statement that there are no local or state health officer orders for isolation or quarantine of the excluded employees;
4. Statement describing the way(s) in which excluding the exposed or COVID-19 positive employees from the workplace impacts the employer’s operation in a way that creates an undue risk to the community’s health and safety;
5. Number of employees required to be quarantined under the Cal/OSHA regulation, and whether each was exposed to COVID-19 or tested positive for COVID-19; and
6. The employer’s control measures to prevent transmission of COVID-19 in the workplace if the employee(s) return or continue to work in the workplace, including the prevention of further exposures. These measures may include, but are not limited to, preventative steps such as isolating the returned employee(s) at the workplace and requiring that other employees use respiratory protection in the workplace.

Liebert Cassidy Whitmore recommends that, in advance of a potential workplace exposure or COVID-19 outbreak that would jeopardize the employer’s ability to continue to provide essential services, an employer identify portions of its operations and job classifications, in particular, that are necessary to provide for the health and safety of the community. Further, we recommend that employers prepare a template waiver request, or use the one developed by our firm and available to Liebert Library subscribers, in order to expedite a written waiver request to Cal/OSHA in the event of an incident that would compromise the employer’s ability to adequately provide for the community’s health and safety.

Conclusion

While there remain a number of unanswered questions concerning the Cal/OSHA regulations regarding COVID-19, the January update provides some important clarifications with which employers should be familiar. This information will help employers ensure compliance with the regulations and minimize potential legal exposure due to non-compliance.

Liebert Cassidy Whitmore attorneys are available to assist public agencies that have any questions about this guidance.