Imminent New Cal-OSHA COVID-19 Regulations Will Create New Burdens for Employers, Including a Duty to Pay Workers Excluded from the Workplace Due to Concerns over COVID-19

11.26.2020

On November 19, 2020, despite a fierce opposition effort from the employer community, the Cal-OSHA Standards Board[1] unanimously voted to adopt new emergency regulations for the prevention of COVID-19 in the workplace.  Controversially, the regulations require employers to shoulder the cost of pay and benefits for workers excluded from the workplace due to COVID-19 concerns.  In addition, the regulations provide new instructions to employers on a variety of workplace safety topics, including face coverings, ventilation, disinfection and sanitation, responding to outbreaks, and employee travel in employer vehicles.  The regulations are expected to become final on November 30, 2020.   Key aspects of the regulations are highlighted below. 

Pay and Benefit Continuation for Employees Excluded from the Workplace due to COVID-19.  The regulations require employers to continue pay and benefits for employees who are excluded from the workplace due to COVID-19 infection or due to quarantine for COVID-19 exposure.  The regulations provide that the employer can be excused from this obligation if the employer can show that the employee’s exposure to COVID-19 was not work related.  The regulations authorize an employer to consider benefit payments from public sources in determining how to maintain an employee’s earnings, benefits, and employment rights.   We expect further litigation addressing whether Cal-OSHA has the administrative authority to require employers to continue pay and benefits for employees.

No-Cost COVID-19 Testing for Employees Exposed to COVID-19 at Work.    The regulations require employers to provide no-cost COVID-19 testing to employees who were potentially exposed to COVID-19 in the workplace.  The regulations require that the testing be provided to employees during their “working hours,” which means employers must pay employees for time spent completing COVID-19 testing.  Further, in the event of an “outbreak” or a “major outbreak,” the regulations require the employer to test all employees at the affected worksite on either a weekly or even bi-weekly basis.

A Written COVID-19 Prevention Plan.  The regulations require employers to adopt a written COVID-19 Prevention Plan that includes, among other items, (i) a system for communicating COVID-19 information to employees; (ii) the identification and evaluation of COVID-19 hazards; (iii) a procedure for investigating and responding to COVID-19 cases in the workplace; (iv) the correction of COVID-19 hazards; and (v) training and instruction to employees.

Broad Use of Face Coverings.  The regulations require that employees must wear face coverings for any indoor work, with limited exceptions.  An employee is not required to wear a face covering indoors if the employee is alone in a room.  A face covering is not required while eating or drinking, provided six feet of distancing is maintained.  Additional exceptions exist for employees with disabilities or hearing impairments.  A face covering must cover both the nose and the mouth, and a face shield is not a substitute for a face covering, though we do not read this restriction as preventing use of face shields where otherwise specifically authorized by law, regulation, CDPH guidance, etc.  (e.g. in certain school settings).

Increased Physical Distancing Requirements.  The regulations require that employees be separated from others by at least six feet at all times.  There are two exceptions to this requirement: (1) where an employer can demonstrate that six feet of separation is not possible; and (2) in instances of momentary exposure while persons are in movement.  Where six feet of separation is not possible, employees are to be kept as far apart as possible and employers are required to install cleanable solid partitions that effectively reduce aerosol transmission between the employee and other persons.

Increased Outdoor Airflow & HVAC Filtration.   The regulations require employers to evaluate how to maximize the volume of outside air in their facilities, except in high-pollution days, or if doing so would cause excessive heat or cold.  Employers are also instructed to increase HVAC filtration efficiency to the highest level compatible with their HVAC systems.  In the event of a “major outbreak,” employers are instructed to increase filtration to MERV 13 if feasible.

New Protocols for Employer-Provided Transportation.  The regulations contain detailed safety protocols for employer-provided transportation.   The rules apply regardless of the length of the trip.   All vehicle occupants, including the driver and passengers, must be separated by at least three feet irrespective of the vehicle’s normal capacity.  In addition, all vehicle occupants must wear face coverings for the duration of the trip.  The vehicle’s windows must be kept open except in the event of excessive heat, cold, inclement weather, or on high pollution days.

Employers are advised to consult with their safety experts and legal advisors to develop site-specific plans to ensure compliance with these detailed safety regulations.  Employers should bear in mind that the regulations include non-retaliation protections for employees, and that the regulations strictly protect the confidentiality of employee medical information.  Please contact your AALRR attorney with any follow-up questions. 

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

[1] “Cal-OSHA Board” is short for the California Occupational Safety and Health Standards Board, which sets health and safety standards administered by the California Occupational Health and Safety Administration.