Cal/OSHA Updates “FAQ” Guidance Regarding Emergency COVID-19 Regulations

01.15.2021

The California Occupational Safety and Health Standards Board (“Cal/OSHA”) issued vast emergency temporary standards (“COVID-19 regulations”) in November 2020 to address the recent spike in COVID-19 cases and prevent future outbreaks in the workplace.^[1] (See 8 Cal. Code of Regulations §§ 3205 – 3205.4.) These regulations went into effect on November 30, 2020, and impose numerous obligations on private and public employers, including cities, counties, housing authorities, transit agencies, water districts, and other special districts (“public employers”), relating to COVID-19 exposure and workplace safety.

Cal/OSHA published a “COVID-19 Emergency Temporary Standards Frequently Asked Questions” page on its website on December 1, 2020, in an effort to provide employers guidance on the scope and intent of its regulations.^[2] Cal/OSHA updated its FAQ page on January 8, 2021, with far more information and guidance on various aspects of its COVID-19 regulations. Public employers should remain aware of the following insights provided in this FAQ page update.

Clarifying “Exclusion Pay” Requirements

The COVID-19 regulations require public employers to pay “exclusion pay” to employees who are excluded from work due to work-related COVID-19 exposure where the employee otherwise is “able and available to work.^[3]” Cal/OSHA’s updated FAQs provided the following guidance:

An employee is not eligible to receive exclusion pay if the employee is unable to work because the employee is experiencing COVID-19 symptoms. However, these employees may be entitled to receive Workers’ Compensation or State Disability Insurance benefits.
An employee is not eligible for exclusion pay if the employee is unable to work for “reasons other than protecting persons at the workplace from possible COVID-19 transmission.” These reasons may include “a business closure, caring for a family member, disability, or vacation.”
Upon learning from employees about an alleged COVID-19 workplace exposure, public employers remain responsible for determining if the exposure occurred in the workplace.

The updated FAQs did not detail how public employers can rebut the presumption (created under SB 1159 in an outbreak situation) that an employee’s COVID-19-related illness is work-related, that is, an occupational injury entitling the employee to workers’ compensation benefits. The updated guidance advises only that employers must conduct investigations (comparable to the workers’ compensation requirements) and produce comparable evidence to show it is more likely than not that an employee’s COVID-19 exposure did not occur in the workplace. The updated FAQs do not provide any examples of the type of evidence that would serve to rebut the presumption.

Determining the “Exposed Workplace”

The updated FAQs also provide much-needed clarification regarding what exactly constitutes an “exposed workplace” for purposes of determining if an outbreak has occurred and which employees must be tested.

For purposes of determining whether an outbreak has occurred, there must be three COVID-19 cases where all three of the COVID-19 cases worked in, used, or accessed the same “work location, working area or common area used or accessed” in a 14-day period. If one of the three cases is in a different work location within an establishment, an outbreak has not occurred.
Areas a COVID-19 case passed through (i.e., travelled through en route to a work area and did not stop or stopped momentarily while wearing a face covering) are not considered in determining the area of an “exposed workplace.” The FAQs provided an example to illustrate the point: if three COVID-19 cases have been in a common area, but one of the cases only passed through while wearing a face covering, an outbreak has not occurred.

The updated FAQs also clarify that employers can separate employees into cohorts to reduce the likelihood of COVID-19 cases occurring in the same work locations/areas. In addition, workplaces where there are several non-overlapping work shifts, each shift would be considered as a separate “exposed workplace” if the facility is well ventilated and the cleaning and disinfection requirements of the ETS are met between or before shift changes.

“Fixed Work Locations”

The updated FAQs clarify that a “fixed work location” is a workstation where an employee is assigned to work with minimal movement from that location for extended periods of time (e.g. cashiers, greeters, receptionists, workers at desks or in cubicles, and food production line workers). It does not include construction or maintenance work.

In situations where physical distancing between employees is not possible (for example, when employees work in “fixed work locations”), the COVID regulations require employers to install cleanable solid partitions that reduce the risk of aerosol transmission. According to the updated FAQs, the partitions must be “large enough to reduce the risk of aerosol transmission.”

While employers are required to install these partitions, the updated FAQs also point out that unless the partitions are “complete barriers,” partitions do not eliminate the risk of transmission between workers. Workers within six feet of one another are considered a close contact for determining COVID-19 exposure, regardless of partitions. As a result, they would be subject to the COVID regulations’ exclusion provisions.

Lessening (Somewhat) The Financial Burden of The Employer’s COVID Testing Requirements

Public employers are required to offer/provide COVID testing to employees as follows:

Offer testing to an employee at no cost and during working hours in the event of a potential COVID-19 work-related exposure.
Provide periodic (at least weekly or twice per week depending on the magnitude of the outbreak) COVID-19 testing to all employees in an “exposed workplace” during an outbreak.^[4]

The FAQs clarified that the terms “provide testing” and “offer testing” have the same meaning. Further, public employers may satisfy this obligation by sending employees to free testing sites, such as sites run by the local public health department.

The updated FAQs highlight that the testing must be provided “at no cost to employees,” which includes:

The cost of testing, if any;
Wages for the time spent by the employee to get tested;
Travel time to and from the testing site;
Reimbursing employees for travel costs to the testing site (e.g., mileage or public transportation costs).

The FAQs also confirm that public employers do not violate the COVID-19 regulations if they offer employees a chance to test, and one or more employees declines or refuses to take a COVID-19 test.

Required Elements of the Written COVID-19 Prevention Program

The updated FAQs clarify that an employer can comply with COVID-19 regulations by developing a written COVID-19 Prevention Program or by including the required elements the employer’s existing Injury and Illness Prevention Program (IIPP). For more information on the type of information that public employers must include in their COVID-19 Prevention Plans, please see our firm’s prior Alert.

Return to Work

The FAQs also address the impact of Governor Newsom’s December 14, 2020 Executive Order that relies upon California Department Public Health (CDPH) guidance and altered the COVID-19 regulations with respect to return to work. Specifically, Cal/OSHA states, applying Executive Order N-84-20 and current CDPH quarantine guidance, while a 14-day quarantine is recommended, an exposed employee who does not develop symptoms of COVID-19 may return to work after 10 days have passed since the date of last known exposure. Additionally, CDPH has provided guidance permitting health care, emergency response and social services workers to return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage.”

Impact of Vaccines

Cal/OSHA chose not to address the particular impact of statewide vaccination efforts on its COVID-19 regulations. The agency advised that it would address vaccine-related issues in a future update to its FAQs, and directed public employers to comply with all measures and rules contained in the COVID-19 regulations until told otherwise.

No Monetary Penalties for Violations of the COVID-19 Regulations until February 2, 2021

Public employers are currently required to comply with the COVID-19 regulations. While Cal/OSHA has been enforcing these regulations since early December 2020, the agency provided employers with some relief on compliance concerns in their updated FAQs.

Specifically, Cal/OSHA confirmed that for the first two months the rules are in effect (i.e., November 30, 2020 through February 1, 2021), the agency will issue citations, but will not assess monetary penalties for violations of the COVID regulations that would not otherwise have been considered a violation of the employer’s IIPP, respiratory protection program or other applicable Cal/OSHA standard in place prior to November 30, 2020.

Cal/OSHA’s COVID-19 regulations are extensive and complicated. While Cal/OSHA’s model COVID-19 Prevention Plan provides helpful guidance navigating these regulations, our practice group can work with public employers to develop customized COVID-19 Prevention Plans.

We encourage public employers to carefully review the COVID-19 regulations and the updated FAQs in detail, and develop workplace-specific protocols to ensure compliance. We also encourage employers to monitor Cal/OSHA’s website for subsequent guidance on these expansive regulations, as public health guidance on the various aspects of the present pandemic is updated frequently and subject to change. Please reach out to the Authors of this Alert or your regular AALRR counsel with any questions.

^[1] Our firm addressed Cal/OSHA’s COVID-19 regulations in detail in a two prior Alerts, here and here..

^[2] Our firm addressed noteworthy information provided in Cal/OSHA’s initial FAQ page in a prior Alert.

^[3] 8 C.C.R. § 3205(c)(10)(C).

^[4] 8 C.C.R. § 3205(c)(3)(B)(4).