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

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 information on more than three dozen topics, this special bulletin provides operational guidance on: (1) the application of Cal/OSHA’s COVID-19 regulations to certain employees; (2) employer testing obligations in the event of “close contact” exposures[3] and COVID-19 outbreaks; (3) clarification concerning the definition of an “exposed workplace” for purposes outbreak response obligations; and (4) how employers can seek Cal/OSHA waivers to allow certain employees to continue working despite exposure.

Scope of Regulatory Coverage

Cal/OSHA clarifies the application of its COVID-19 prevention plan regulations for: (1) employees whose employment (job or workplace) already subjects them to exposure control plans related to aerosol transmissible diseases (diseases or pathogens for which droplet or airborne precautions are required or ATDs); and (2) employees who are vaccinated for COVID-19.

Employees Subject to ATD Precautions

Cal/OSHA’s COVID-19 prevention regulations (section 3205), expressly exempt from coverage employees whose employment subjects them to an ATD exposure control plan, as set forth in California Code of Regulations, title 8, section 5199.”[4] This includes employees working in certain health care facilities, services, or operations, such as hospitals, skilled nursing facilities, home healthcare, medical transport, and other specified fields.  The exemption also applies to employees working in homeless shelters and drug treatment programs.[5]  Because the regulations specifically identify numerous fields of service, we recommend consulting legal counsel to assess whether your nonprofit or its employees may be exempt from Cal/OSHA’s COVID-19 prevention regulations due to existing ATD requirements.  If not, the nonprofit must comply with Cal/OSHA’s COVID-19 prevention obligations for any employees who are required to report to a worksite where they may have contact with others.[6]

Employees Who are Vaccinated

For the time being, Cal/OSHA’s COVID-19 regulations, including the establishment of a COVID-19 prevention measures and outbreak response requirements, apply to employees who have been vaccinated for COVID-19.[7] Cal/OSHA has indicated that it will likely address the impact of vaccines in a future revision to its COVID-19 emergency temporary standards. Liebert Cassidy Whitmore will continue to monitor guidance from Cal/OSHA on this topic.

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

In its interpretive guidance, updated January 8, 2021, Cal/OSHA clarifies employers’ COVID-19 testing obligations.[8]

First, Cal/OSHA clarifies that the only testing obligation an employer has to “all” employees, is to inform them how they can obtain testing – whether through the employer, a local health department, a health plan, or a community testing site.  In contrast, the employer must offer testing to an employee, at no cost and during working hours, in the event of a potential COVID-19, work-related exposure.  It must also provide periodic testing to all employees in an “exposed workplace” during an outbreak.  (The frequency of available testing depends on the magnitude of the outbreak).

Second, for the purposes of testing “during working hours,” Cal/OSHA specifies that testing does not have to occur during an employee’s normal shift, but must be “compensated” time.  In other words, if the testing does not occur during an employee’s shift, the employer will be obligated to compensate the employee for the time the employee spent obtaining a test.  The employer must also compensate the employee for related travel expenses.[9]

Third, 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.  Employers can offer such testing at off-site locations.[10]

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

Cal/OSHA provides guidance about COVID-19 outbreaks, which require a heightened employer response under California Code of Regulations, title 8, section 3205.1.

As an initial matter, an “outbreak” triggering a heightened Cal/OSHA response, occurs when there are three or more COVID-19 cases in an “exposed workplace” within a 14-day period, or as otherwise identified by a local health department.  A “major outbreak” (requiring additional response obligations) occurs when there are 20 or more COVID-19 cases in an “exposed workplace” within a 30-day period. Cal/OSHA’s interpretive guidance, updated January 8, 2021, clarifies that an “exposed workplace” does not mean an entire workplace.  Instead, an “exposed workplace,” for the purposes of assessing whether an outbreak has occurred, is a “work location, working area, or common area used or accessed by a COVID-19 case during the high risk period.”[11] Exposed workplaces may include bathrooms, walkways, hallways, aisles, breakroom, and eating or waiting areas.

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.”[12] Finally, Cal/OSHA indicates that separate non-overlapping shifts of employees who work at the same location may each constitute a “separate ‘exposed workplace’” as long as the facility in which they work is “well ventilated and the cleaning and disinfection requirements of [Cal/OSHA’s emergency temporary standards] are met between or before shift changes.”[13]

Together, Cal/OSHA’s interpretations allow employers to identify more limited “workplaces” within a single “worksite,” which may reduce the likelihood of COVID-19 outbreaks under the regulation.  Nevertheless, employers must still make a good faith effort to appropriately identify these workplaces in order to comply with their Cal/OSHA response outbreak response obligations.

Employers also remain subject to local and CDPH requirements, which may extend beyond Cal/OSHA requirements.

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

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.[14]  In its January 8, 2021 interpretive guidance, Cal/OSHA clarifies that employers should only make such requests if the absence of the exposed/diagnosed 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.[15] The guidance makes clear that the type of operations that may qualify for waiver are narrow.  The employer must provide “goods or services, the interruption of which would cause an undue risk to a community’s health and safety” in order to qualify for a waiver. Moreover, 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.[16]

Further guidance on how to apply for a waiver is provided by Cal/OSHA online at https://dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#waivers.

Liebert Cassidy Whitmore recommends that, in advance of a potential workplace exposure or COVID-19 outbreak, employers identify any portions of their operations and job classifications that are necessary to provide for the health and safety of the community. Once they have done so, we recommend that employers prepare template waiver requests in order to expedite the waiver request process they will need to follow should one or several employees’ absences compromise the employer’s ability to adequately provide for the community’s health and safety.

Liebert Cassidy Whitmore attorneys are available to assist employers that have any questions about Cal/OSHA’s most recent guidance.