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CAL/OSHA Imposes COVID-19 Safety Regulations on Businesses

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In November 2020, during the heart of the pandemic, Cal/OSHA established emergency temporary standards (ETS) applicable to the workplace. The regulations remain in effect but were updated in the summer of 2021. This section describes the emergency regulations and the amendments made, primarily regarding vaccinations.

On Nov. 19, 2020, in an effort to keep employees in the workplace safe from the coronavirus, Cal/OSHA approved safety regulations imposing new requirements on employers. The regulations strengthen and expand many existing requirements. According to then-California Attorney General Xavier Becerra, “… [T]he time is now to establish an enforceable legal standard applicable to workplaces to directly and comprehensively protect workers, their families, and the public at large.” Read Becerra's complete statement here.

With FDA approval and availability of COVID-19 vaccinations, and the reopening of the state, Cal/OSHA's updates are intended to bring the ETS regulations in line with guidance from the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH), and to enumerate options for employers to transition safely from physical distancing and face-covering mandates to more normal operations.

On June 3, 2021, the state’s Occupational Safety and Health Standards Board (Board) adopted amendments to the 2020 ETS regulations, but with reservations about some provisions. A subcommittee was formed to study further revisions to the ETS in light of its concerns.

On June 9, the Board voted to withdraw the proposed revisions and made further revisions in light of updated CDHP face-covering guidance and to address concerns of Board members and the public.

The Board released amended and approved ETS regulations at its public meeting on June 17.

On that date, Gov. Gavin Newsom issued Executive Order N-09-21, making the amended ETS regulations effective immediately.

There are 10 main parts to the regulations:

    1. clarifying scope and definitions;
    2. drafting and implementing a COVID-19 prevention program;
    3. identifying COVID-19 hazards and correcting them;
    4. investigating COVID-19 cases, notifying, and testing potentially exposed employees;
    5. requiring physical distancing and mask wearing, and improving ventilation;
    6. denying employees workplace access until quarantine ends, and paying employees throughout quarantines;
    7. recording, reporting, and allowing access to information;
    8. reporting all outbreaks to the public health department, and providing continuous testing to employees;
    9. providing bed-spacing in employer-provided housing, and eliminating bunk beds and disinfecting daily;
    10. screening workers before they board employer-provided transportation, and requiring distanced seating and face masks.

The temporary regulations can be found here.

Compliance with the regulations is mandatory, specific, and detailed. Following is a complete discussion of the original regulations, what remains in force, and what has been amended.


Summary of Important Changes to the Emergency Temporary Standards

AMENDED JUNE 2021

The original emergency regulations remain in effect to the extent they have not been modified or eliminated. Employers must continue to adhere to them.

Changes to the ETS are difficult to follow in the document released by Cal/OSHA, so it created FAQs to describe the most important revisions. The summary below is taken from that document.

  • Absent symptoms, fully vaccinated employees needn’t be tested nor quarantined after close contact with people confirmed to have COVID-19.
  • Except during an outbreak, face coverings are not required outdoors regardless of vaccination status.
  • Employers may allow fully vaccinated employees to go maskless indoors but must document their vaccination status. (Exceptions to this are described below.)
  • Employees who aren’t fully vaccinated may request approved respirators (such as N95 masks) when working indoors or traveling in a vehicle with others.
  • Physical distancing and barriers are not required except during a major outbreak (20 or more cases in an exposed group). Employers must evaluate whether to implement physical distancing and barriers during an outbreak (three or more cases in an exposed group).
  • Physical distancing is not required in employer-provided housing and transportation.
  • Regulations do not apply in employer-provided housing and transportation if all employees are vaccinated.
  • Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and evaluate use of additional air-cleaning systems.
  • Employers may not retaliate against employees who wear face coverings.

Definitions and Scope

The regulations apply to:

  • employees and businesses except businesses with one employee who has no contact with other people;
  • employees working from home; and
  • operations covered by California’s Aerosol Transmissible Disease (ATD) standards, including employees of various health facilities, emergency responders, and other care organizations.

Go here for details. These definitions are taken from the regulations and and will be referred to throughout this section.

  • Fully vaccinated: The employer has documented that at least 14 days before, the person received either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. Vaccines must be FDA-approved or have FDA emergency use authorization. For persons vaccinated outside the U.S., vaccines must have an emergency use authorization from the World Health Organization (WHO).
  • The definition confirms that employers can and must document which employees are vaccinated. The regulations allow, but don’t require, employers to make copies of vaccination cards, and suggest that self-attestation is sufficient.
  • COVID-19: This abbreviates coronavirus SARS-CoV-2, an infectious disease caused by the severe acute respiratory syndrome.
  • COVID-19 case: This individual:
    • has a positive COVID-19 test as defined in these regulations;
    • is subject to an order to isolate related to COVID-19 issued by a local or state health official;
    • has died due to COVID-19 in the determination of a local health department or per inclusion in the COVID-19 statistics of a county; or
    • has a positive COVID-19 diagnosis from a licensed health-care provider.

A person is no longer a “COVID-19 case” when a licensed health-care professional determines that he or she does not have COVID-19, in accordance with the recommendations of the California Department of Public Health (CDPH) or the local health department by authority granted under the Health and Safety Code or Title 17.

  • COVID-19 exposure: becomes close contact: being within 6 feet of a COVID-19 case for a cumulative 15 minutes or more in any 24-hour period within or overlapping with the “high-risk exposure period” as defined in the regulations. It applies regardless of the use of face coverings.
  • Exception to close contact: An employee will not be a close contact if she or he is (1) fully vaccinated and has no symptoms; or (2) is unvaccinated and wore a respirator at all times she or he was within 6 feet of the COVID-19 case during the high risk exposure period.
  • COVID-19 hazard: exposure to potentially infectious material that might contain SARS-CoV-2, the virus that causes COVID-19. Potentially infectious materials include airborne droplets, small particle aerosols, and airborne droplet nuclei, which most commonly result from people exhaling, talking, vocalizing, coughing, sneezing, or activities that might aerosolize saliva or respiratory tract fluids. Included are objects or surfaces that might be contaminated with SARS-CoV-2.
  • COVID-19 symptoms: They include fever of 100.4 degrees Fahrenheit or higher, chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea, vomiting and/or diarrhea, unless a licensed health-care professional determines that such symptoms were caused by a known condition other than COVID-19.
  • COVID-19 test: a viral test for SARS-CoV-2 that is:
    • approved by the FDA or has an FDA emergency use authorization to diagnose current infection with the SARS-CoV-2 virus; and
    • administered in accordance with the FDA approval or the FDA emergency use authorization as applicable.
  • Exposed workplace: becomes exposed group: all persons at a work location, working area, or a common area at work, where a COVID-19 case was present at any time during the high-risk exposure period. Such areas include bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. Note: An “exposed group” might include employees of more than one employer.
  • Exceptions to the exposed group include:
    • a place where individuals momentarily pass through while everyone is wearing a face covering, without congregating, that is not a work location, working area, or a common area at work;
    • when the person diagnosed with COVID-19 was part of a distinct group of employees who were not present at the workplace at the same time as other employees — for example, a work crew or shift that does not overlap with another work crew or shift (only employees within that distinct group are part of the exposed group);
    • when the person diagnosed with COVID-19 visited a work location, working area, or a common area at work for fewer than 15 minutes during the high-risk exposure period, and all individuals were wearing face coverings at the time he or she was present.
  • Face covering definition has been clarified and expanded to mean a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or nonwoven material of at least two layers. A face covering has no visible holes or openings that covers the nose and mouth. A face covering does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.
  • Exceptions to the face-covering requirement:
    • when employees are alone in a room, or vehicle;
    • when employees eat or drink at the workplace, provided that they are at least 6 feet apart and there is an outside air supply to the area (if indoors, spacing is maximized to the extent feasible);
    • when employees wear respirators required by the employer and used in compliance with Labor Code § 5144;
    • when employees cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing impaired or communicating with a hearing-impaired person (such employees may wear a nonrestrictive alternative such as a face shield with a drape);
    • when specific tasks cannot feasibly be performed with face coverings. This exception is limited to the time period in which such tasks are actually performed.
    Employees exempted from wearing a face covering because of physical or mental health condition or disability must be at least 6 feet from all other persons unless they are either (1) fully vaccinated, or (2) tested at no cost at least weekly for COVID-19 during paid time. Employers may not prevent employees from wearing a face covering, even if they are fully vaccinated. Moreover, employers are required to provide face coverings, at no cost to employees, to both vaccinated and unvaccinated workers.
  • High-risk exposure period:
    • for a person to develop COVID-19 symptoms is from two days before she/he first developed symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications and symptoms have improved;
    • for a person to test positive who never developed COVID-19 symptoms is from two days before until 10 days after the specimen for her/his first positive test for COVID-19 was collected.

COVID-19 Prevention Program

Businesses must draft and maintain an effective written COVID-19 prevention program. The document may be integrated into the employer’s injury and illness prevention program (IIPP), or maintained as a separate document. The written elements of the COVID-19 prevention program include:

  • how to report COVID-19 symptoms, possible COVID-19 exposures, and possible COVID-19 hazards at the workplace;
  • procedures for accommodating employees with medical conditions or other comorbidities that put them at an increased risk of COVID-19;
  • information about COVID-19 testing (If the employer provides such testing, describe the reason for it, the testing policies and procedures, and the consequences of a positive test.);
  • information about COVID-19 hazards and the employer’s policies and procedures (Per the regulations, notice also must be provided to “other employers, persons, and entities within or in contact with the employer’s workplace.” So, on request, employers must make available its COVID-19 prevention program to anyone who comes onto the work site. They might include employees, independent contractors, vendors, members of the public, etc.);
  • a policy for screening employees and responding to those with COVID-19 symptoms (Screenings could include asking employees to evaluate their own symptoms before reporting to work, or an employer could conduct its own screening at the workplace. If the employer chooses to screen employees, it must ensure that face coverings are used during screenings by not only the screener, but the employee. If temperatures are taken, the thermometer must be noncontact. Employers who lack a screening protocol must implement one for all employees working on-site.);
  • how the employer will comply with physical distancing requirements and the provision of face coverings and other personal protective equipment(PPE);
  • how the employer will respond “rapidly and effectively” when COVID-19 cases occur, and ways to reduce or prevent the transmission of COVID-19 in the workplace;
  • the employer’s investigatory procedures when a COVID-19 case occurs, including how the employer will provide notice to potentially exposed employees and others;
  • information about the employer’s training program to ensure that all employees are informed of COVID-19 transmission, symptoms, employee benefits if they must quarantine, physical distancing and mask policies, and the importance of staying home when sick.
  • information about face coverings, who needs to wear them, and under what circumstances (Include information about how to request face coverings and respirators from the employer.);
  • information about how employees can access testing and vaccinations, and that both will be provided at no cost and during work time.

These regulations expand on Assembly Bill (AB) 685 requirements that employers add a disinfection and cleaning plan to their IIPP or as stand-alone documents.

We recommend that employers provide the required training at the same time they roll out the COVID-19 prevention program, if possible. Acknowledgments of receipt and sign-in for training confirm that all employees received a copy of the program and attended the mandatory training.

Identification and Evaluation of COVID-19 Hazards

The employer must identify COVID-19 hazards and evaluate ways to remove or minimize them.

  1. Investigate and evaluate these hazard areas: the workplace and, per the regulations, “all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards.” Employers must treat all persons, even those without symptoms or who have tested negative for COVID-19, as potentially infectious.
    1. Identify and evaluate how to reduce the hazards where people can congregate, meet, and/or come into contact with each other, even when they're not working. Examples include training rooms, bathrooms, entrances, hallways, break rooms, changing areas, waiting areas, etc.
    2. Identify and evaluate how to reduce hazards in areas that might affect the health and safety of others traveling through the workplace, and entering or exiting the facility. Such individuals might include customers, vendors, contractors, and clients.
  2. The employer must allow employees and their union representatives to participate in the identification and evaluation of COVID-19 hazards.
  3. For indoor locations, employers must evaluate the ventilation system and research ways to maximize the flow of outdoor air and whether the system operates at the highest efficiency. Identify and evaluate how to maximize indoor ventilation with outdoor air to the highest level of filtration efficiency compatible with the existing ventilation system. The employer must consider “whether the use of portable or mounted high-efficiency particulate air (HEPA) filtration unit, or other air cleaning systems, would reduce the risk of COVID-19 transmissions.” Review and consider the California Department of Public Health’s interim guidance for ventilation, filtration, and air quality in indoor environments, in addition to information specific to their industries, location, and operations.
  4. Employers must review all local and state orders and guidance, and implement them in the prevention plan.
  5. Employers must review their existing COVID-19 policies and controls, and evaluate whether they are still effective or must be modified or expanded.
  6. Businesses must perform periodic inspections to identify unhealthful conditions, work practices, or procedures.

Investigation and Response to COVID-19 Cases in the Workplace

Employers must have an effective investigative process to verify COVID-19 test results, status of employees who test positive, persons with symptoms and methods of identifying and recording COVID-19 cases.

The employer is required to take the following action when there is a COVID-19 case at the workplace, and it must include all of these elements in the employer prevention program:

  1. Determine the day and time the COVID-19 case was last present and, if possible, the date of the positive COVID-19 test and/or diagnosis, and the date the COVID-19 case first had one or more COVID-19 symptoms.
  2. Determine who may have been exposed. Employers must evaluate where the COVID-19 case was within the workplace, the activities of the infected person and all locations at the workplace that he or she might have visited during the high-risk exposure period.
  3. Give notice of the potential COVID-19 exposure, within one business day, in a way that does not disclose any personal identifying information of the infected person. Those who must be notified are:
    1. all employees who might have been exposed and their authorized representatives;
    2. independent contractors and other employers present at the workplace during the high-risk exposure.

    The amended ETS Regulations require written notice to be provided to those in the exposed group within “within one business day of the time the employer knew or should have known of a COVID-19 case. The notice must be in a form readily understandable by employees."

  4. Offer COVID-19 testing at no cost to employees during their working hours to all workers who must be quarantined and excluded from the workplace.Testing need not be offered to employees who are fully vaccinated who do not have COVID-19 symptoms. Disclose related benefits to which they may be entitled under federal, state and local laws.
  5. Investigate whether any workplace condition could have contributed to the risk of COVID-19 exposure and what can be done to reduce exposure hazards.

Ensure that all personally identifying information related to infected people or those with symptoms of COVID-19 remains confidential. All COVID-19 testing must protect employee confidentiality. The only exception to the confidentiality requirement is when unredacted information on COVID-19 cases must be provided to the local health department, CDPH, Cal/OSHA, the National Institute for Occupational Safety and Health (NIOSH) or as otherwise required by law immediately on request.

The employer must ensure that all medical records are kept confidential and not disclosed or reported without the employees’ written consent. The only exceptions to this requirement include when unredacted medical records are provided to the local health department, CDPH, Cal/OSHA, National Institute for Occupational Safety and Health (NIOSH), or otherwise required by law.

Testing Employees

Employers are required to provide testing to exposed employees, but other than testing for an outbreak, there is no requirement that testing be provided within a specific period of time. Employers may elect to use free clinics or community testing centers to fulfill their testing obligations as long as employees are compensated for the time spent testing.

The amended standards have expanded the testing requirements. Not only must employers make COVID-19 testing available, at no cost and during work hours, to any employee who had a close contact with someone who tested positive for COVID-19, they also must make such testing available at no cost to employees with COVID-19 symptoms who are not fully vaccinated. Two exceptions to the testing requirement:

  1. employees who were fully vaccinated before the close contact and do not have COVID-19 symptoms;
  2. COVID-19 cases who were symptomatic, who returned to work and have remained symptom free for 90 days, after the initial onset of symptoms or people with COVID-19 who did not develop symptoms for 90 days after the first positive test.

Although Cal/OSHA carved out exceptions to the testing requirement for both fully vaccinated employees if they don’t have COVID-19 symptoms, and those formerly diagnosed who have returned to work and remain symptom-free for 90 days, it has not provided instruction about determining whether symptoms exist in these groups. We recommend that employers affirmatively ask fully vaccinated close contacts if they are experiencing any of the known COVID-19 symptoms and document the process as they would any COVID-19 case investigation.

Exemption from the testing requirement requires additional employer investigation and record-keeping, including documenting the names of fully vaccinated employees, the dates people formerly diagnosed returned to work, and confirmation that they have been symptom-free for at least 90 days.

Correcting Covid-19 Hazards

Employers must enact procedures to correct any unsafe or unhealthful conditions. Such conditions might include not only physical conditions but policies and methods of performing job duties.

Training and Instruction

Employers must provide “effective training and instruction” to employees. The regulations are detailed and specific as to what must be covered in the training. There are no requirements regarding the length of the training or who may perform the training. Include the following in your training sessions:

  1. Cover the COVID-19 policies and procedures established to protect employees from COVID-19 hazards and how to participate int he identification and evaluation of COVID-19 hazards.
  2. Provide employees with information regarding benefits related to COVID-19 to which they might be entitled under applicable federal, state or local laws including legally mandated sick and vacation leave, if applicable. Benefits include those available under workers’ compensation, the Families First Coronavirus Response Act, Labor Code § 248.1 and § 248.5 (Supplemental Paid Sick Leave for Large Employers), local governmental requirements, your own leave policies and leave guaranteed by contract. Note: This information is the same as that required under AB 685.
  3. Instruct employees, per the regulations, that “COVID-19 is an infectious disease that can be spread through the air when an infectious person talks or vocalizes, sneezes, coughs, or exhales; that COVID-19 may be transmitted when a person touches a contaminated object and then touches their eyes, nose, or mouth, although that is less common; and that an infectious person may have no symptoms.”
  4. Reinforce the importance of social distancing, separating at least 6 feet, and the importance of wearing face coverings.
  5. Tell employees that particles containing the virus can travel more than 6 feet, especially indoors, so physical distancing, must be combined with other controls, including face coverings, hand hygiene increased ventilation indoors, and respiratory protection decrease the spread and are most effective when used in combination, to be effective.
  6. The employer's policy for providing respirators and the right of employees who are not fully vaccinated to request a respirator for voluntary use without fear of retaliation and at no cost. Define how to properly wear the the respirator and how to check for a seal, and the affect of facial hair and how it can prevent a proper seal.
  7. Instruct employees to wash their hands frequently with soap and water for at least 20 seconds, and to use hand sanitizer when they have no immediate access to washing facilities. Make clear that hand sanitizer does not work if the hands are soiled.
  8. Stress the proper use of face coverings and that such coverings are not respiratory protective equipment.COVID-19 is an airborne disease and N95 masks protect the user from airborne disease while face coverings primarily protect people around the user.
  9. Stress that employees must not come to work when sick, and to obtain a COVID-19 test if they have COVID-19 symptoms. Provide a list of symptoms.
  10. How to access testing and vaccination, that vaccination is effective in preventing COVID-19, protecting against transmission and serious illness, or death.
  11. Conditions under which face coverings will be worn at the workplace. Employees may request face coverings from the employer and may wear them at work regardless of their vaccination status, without fear of retaliation.

Cal/OSHA has developed training videos in both English and Spanish for managers, supervisors, and employees. The training is adequate, but Cal/OSHA reminds employers that they also must provide employer-specific training on the company's COVID-19 prevention program unique to that workplace. Employers are wise to couple the video training with company-specific training. The free training videos are found here.

Physical Distance, Face Coverings, Ventilation, and Other Engineering Controls

Physical Distancing

With a couple of exceptions, the Amended ETS Regulations have eliminated the requirement to physically distance both indoors and outdoors except during an outbreak.

Physical distance is required during a major outbreak (20 or more cases). Employers must evaluate whether to implement physical distancing in the event of an outbreak (three or more cases), and when certain employees are unable to wear a face covering due to a physical or mental condition or disability, are not fully vaccinated, and are not tested for COVID-19 at least once a week.


Face Coverings The definition has been expanded and clarified as “a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers. A face covering has no visible holes or openings and must cover the nose and mouth. A face covering does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.”

Exceptions

Exceptions to the provision of face covering requirement include:

  • any employee that has been fully vaccinated;
  • when an employee is alone in a room;
  • when someone is eating and drinking at the workplace, provided that workers are at least 6 feet apart and outside air supply to the area, if indoors, has been maximized to the extent possible;
  • employees wearing “respiratory protection” as defined in California Code and Regulations § 5144 or other CCR Title 8 safety orders;
  • employees who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing impaired or communicating with a hearing-impaired person;
  • when specific tasks cannot be performed wearing a face covering. Per the regulations, this exception is expressly limited to “the time period in which such tasks are actually being performed, and the unmasked employee shall be at least six feet away from all other persons unless unmasked employees are tested at least twice weekly for COVID-19.”

The CDPH has issued guidelines for employers that describe when wearing a face covering is probably not feasible.

Employees exempted from wearing a face covering because of a physical or mental condition or disability must wear an effective nonrestrictive alternative, such as a face shield with a drape on the bottom if their condition or disability permits it.

Cal/OSHA specifically states that any employee exempted from wearing a face covering because of physical or mental health condition or disability must be at least 6 feet from all other persons unless he or she is either (1) fully vaccinated, or (2) tested at least weekly for COVID-19 during paid time at no cost to him or her.

Employers may not prevent employees from wearing a face covering, even if they are fully vaccinated. Moreover, employers are required to provide face coverings, at no cost to employees, to both vaccinated and unvaccinated workers.

Any employee not wearing a face covering, face shield with a drape or respiratory protection, for any reason, must remain at least 6 feet apart from other people unless the unmasked employee is tested at least twice weekly for COVID-19. The regulations state that employers “may not use COVID-19 testing as an alternative to face coverings when face coverings are otherwise required.”

An employer may not prevent an employee from wearing a face covering when not otherwise required under these regulations unless it would be a safety hazard such as "interfering with the safe operation of equipment."

Employers must inform nonemployees –– customers, vendors, suppliers members of the general public –– of the face-covering requirements of their premises.

Finally, employers must draft and implement policies and practices to minimize employee exposure to COVID-19 hazards “originating from any person not wearing a face covering, including a member of the public.”

Disinfecting and Cleaning

Employers must implement cleaning and disinfecting procedures that include:

  • identifying and regularly cleaning frequently touched surfaces and objects, such as doorknobs, elevator buttons, equipment, tools, handrails, handles, controls, phones, headsets, bathroom surfaces, and steering wheels. The employer must also inform employees and authorized employee representatives of the cleaning and disinfecting protocols of the employer, including the plan, frequency and scope of cleaning and disinfection.
  • Cleaning of areas, materials, and equipment used by a COVID-19 case during the high exposure period, and disinfection if the area, material, or equipment is indoors and will be used by another employee within 24 hours of the COVID-19 case.
  • procedures and protocol for cleaning and disinfecting areas, material and equipment used by a COVID-19 case during the high-risk exposure period.

The regulations direct that cleaning and disinfecting must be done without creating a hazard to employees. The regulations refer to Group 2 and Group 16 of the General Industry Safety Orders.

As part of their investigatory and evaluation procedure, employers must review their hand-washing facilities to determine if additional facilities are warranted. They must encourage and allow time for employees to wash their hands, and provide effective hand sanitizer.

Personal Protective Equipment

Employers have been required to evaluate the need for personal protective equipment (PPE) in their workplaces. The updated regulations confirm and enforce that requirement. They direct employers to evaluate what types of PPE are required for their workplace, whether respiratory protection is needed and ensure the use of eye and respiratory protection when employees are exposed to procedures that might “aerosolize potentially infectious material such as saliva or respiratory tract fluids.”

If an employee wears compliant respiratory protection (for example, a fitted, tested N95 respirator), he or she is not considered to have been exposed to COVID-19. But an employee wearing a face covering is considered to have been exposed.

Respirators

Respirator is defined in the amended regulations as “a respiratory protection device approved by NIOSH to protect the wearer from particulate matter, such as the N95 filtering face piece respirator.” An N95 mask is considered a respirator.

Employers must provide respirators for voluntary use to all unvaccinated employees who request them. Employers must comply with Labor Code § 5144(c)(2) in the provision of respirators.

Employers who make N95 masks available for voluntary use do not need to conduct medical exams prior to use. Medical exams are necessary for required respirator use. See N95 Mask Commonly Asked Questionsfor more information.

Required training in respirator use: When employers provide respirators for voluntary use by unvaccinated employees, they must train them in:

  • how to wear the respirator properly;
  • how to perform a seal check according to the manufacturer’s instruction.

In addition, employers must inform workers that:

  • Facial hair can interfere with the seal.
  • Face coverings are not respiratory protective equipment.
  • COVID-19 is an airborne disease.
  • N95 masks and more protective respirators protect users from airborne disease, and that face coverings primarily protect people around the user.

Pursuant to § 5144, when providing unvaccinated employees with respirators, employers must provide employees with the document titled "Information for Employees Using Respirators When Not Required Under the Standard."

Employers may require unvaccinated employees to wear respirators. However, where respirator use is required employers must implement a respirator protection program as required by section 5144(c).

  • Procedures for selecting respirators for use in the workplace;
  • Medical evaluations of employees required to use respirators;
  • Fit testing procedures for tight-fitting respirators;
  • Procedures for proper use of respirators in routine and reasonably foreseeable emergency situations;
  • Procedures and schedules for cleaning, disinfecting, storing, inspecting, repairing, discarding, and otherwise maintaining respirators;
  • Procedures to ensure adequate air quality, quantity, and flow of breathing air for atmosphere-supplying respirators;
  • Training of employees in the respiratory hazards to which they are potentially exposed during routine and emergency situations;
  • Training of employees in the proper use of respirators, including putting on and removing them, any limitations on their use, and their maintenance;
  • Procedures for regularly evaluating the effectiveness of the program.

For those employers who decide to require the use of respirators by all unvaccinated employees they must have a written program in place prior to implementing the policy.

Anticipating the need for N95 masks and to alleviate the cost, the state is making N95 masks available to employers. During the public hearing held June 17, 2021, the agency confirmed employers may poll unvaccinated workers to determine how many N95 masks to order. N95 masks can be ordered from the state here.

Exclusion from the Workplace and Quarantine of Infected Workers

This subsection discusses how employers must limit transmission of COVID-19 by separating exposed and infected workers from the workplace. Recently, the governor signed an executive order reducing some quarantine times.

Employers with a COVID-19 case must:

  • Ensure that COVID cases are excluded from the workplace until the return-to-work requirements (discussed below) are met.
  • Exclude all close contacts from the workplace as follows:
    1. Persons who had a close contact but never developed symptoms can return to work when 10 days have passed since the last known contact.
    2. Persons who had a close contact and developed symptoms cannot return to work until the requirements of a symptomatic COVID case have been met (see below), unless all of the following are true:
    • the person tested negative for COVID-19 using a polymerase chain reaction (PCR) COVID-19 test with specimen taken after the onset of symptoms; and
    • At least 10 days have passed since the last know close contact; and
    • The person has been symptom free for at least 24 hours, without using fever reducing medications.

    Follow the directions of the state and local health department if it requires longer quarantine times.

    Exceptions to Exclusion Requirement

    • Employees that were fully vaccinated before the close contact and who do not develop symptoms; and
    • COVID-19 cases who were symptomatic, who returned to work and have remained symptom free for 90 days after the initial onset of symptoms or, for asymptomatic cases COVID-19 cases who returned to work and remained symptom free for 90 days after the first positive test; and

    Maintain Excluded Employees' Wages and Benefits

    Maintain an excluded employee's earnings, seniority and all other rights and benefits if he or she is otherwise able and available to work. Employers must protect employees' right to their former job status. Employer-provided employee sick leave may be used to the extent permitted by law.
  • Wages due must be paid at the employee's regular rate of pay no later than the regular pay day for the pay period(s) in which the employee was excluded. Unpaid wages are subject to enforcement proceedings by the DLSE and perhaps other agencies.
  • If an exception to the requirement to pay wages applies the employer must inform the employee of the exception.
  • Exceptions to the requirement to pay wages include:
    • When the employee received disability payments ad was covered by workers compensation and received temporary disability.
    • when the employer demonstrates that the COVID-19 exposure is not work related.
    • The employer's policies or collective bargaining agreements may provide greater protections.
    Employers are entitled to have benefits that afford greater protections to employees, including benefits provided by collective bargaining agreements.

    When an employee is excluded from work, the employer must provide him or her with information about available benefits, including state and local paid sick leave, leaves of absence, employer-provided paid leave and workers' compensation. This requirement mirrors that of AB 685.

    Critical Infrastructure Workers –– First Responders, Health-Care Workers, Social Service Workers

    During critical staffing shortages (when staffing is insufficient to provide safe patient care), these essential critical infrastructure workers may return to work after day 7 from the last day of exposure if they receive a negative PCR test result from a specimen collected after day 5:

    • exposed asymptomatic health-care workers; and
    • exposed asymptomatic emergency response and social service workers who work face-to-face with clients in the child welfare system or in assisted living facilities.

    Health-Care Employers

    Health-care employers that lack the staff to provide safe patient care may use contingency strategies as described by the Centers for Disease Control and Prevention (CDC) when asymptomatic health-care personnel are allowed to work with a surgical mask or respirator, but still report temperature and absence of symptoms each day until 14 days after exposure. This includes skilled nursing facilities during an outbreak when all staff members potentially are exposed.

    Other Critical Workers

    Other than narrow exemptions for some health-care workers, first responders and some social service workers described above, the regulations do not exempt other critical workers or other infrastructure workers. Employers may request an exemption from the exclusion requirements from Cal/OSHA if the employee's removal "would create undue risk to a community's health and safety." Currently, Cal/OSHA requires employers to submit only a brief written request to obtain an exemption.

    Return-to-Work Criteria

    The regulatory criteria for employees returning to work after being excluded from the workplace due to COVID-19 mirror those of the CDC. See the CDC's guidance, When You Can be Around Others After You Had or Likely Had COVID-19. The regulations make clear that a negative COVID-19 test may not be required as a condition of returning to work.

    Specifically, the regulations read:

    COVID-19 cases with COVID-19 symptoms shall not return to work until:

    • At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medication;
    • COVID-19 symptoms have improved; and
    • At least 10 days have passed since COVID-19 symptoms first appeared.

    COVID-19 cases who tested positive but never developed COVID-19 symptoms shall not return to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.

    A negative COVID-19 test shall not be required for an employee to return to work.

    If an order to isolate or quarantine an employee is issued by a local or state health official, the employee shall not be required to work until the period of isolation or quarantine is completed or the order is lifted. If no period was specified, then the period shall be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.

    If there are no violations of local or state health officer orders for isolation or quarantine, [Cal/OSHA] may, upon request, allow employees to return to work on the basis that the removal of an employee would create undue risk to a community’s health and safety. In such cases, the employer shall develop, implement, and maintain effective control measures to prevent transmission in the workplace including providing isolation for the employee at the workplace and, if isolation is not possible, the use of respiratory protection in the workplace.

    Reporting, Recording and Access

    The reporting and recording requirements in the updated regulations mostly mirror the existing Cal/OSHA laws but expand the groups who may access the records. Employers are required to adhere to the recording and reporting obligation they currently observe, but:

    • Employers must report information about COVID-19 cases at the workplace to the local health department whenever required by law, and must provide any related information requested by that agency.
    • Employers immediately must report to Cal/OSHA any serious illness or death related to COVID-19 of an employee occurring in a place of employment or in connection with any employment.

    One notable new requirement: Employers must maintain records of the steps they take to implement the written COVID-19 prevention program.

    The written COVID-19 prevention program must be made available at the workplace to employees, their union representatives and to representatives of Cal/OSHA immediately on request.

    Employers must track and record all COVID-19 cases with the employee’s name, contact information, occupation, location where she or he worked, the date of her or his last day at the workplace and the date of a positive COVID-19 test. Medical information must be kept confidential. Per the regulations, the information recorded by the employer “shall be made available to employees, authorized employee representatives, or as otherwise required by law, with personal identifying information removed.”

    This requirement is similar to the Cal/OSHA requirement to record COVID-19 cases, but applies to all employers covered by these regulations. It's broader than the employer's obligation to record work-related COVID-19 cases in a Log 300. The new regulations do not change COVID-19 reporting and recording requirements.

    Note: The requirement to record under these regulations is not a requirement that the employer determine whether or not the COVID-19 case was work related.

    Multiple COVID-19 Infections –– Outbreaks

    Local health departments classify COVID-19 infections as an “outbreak” when there are three or more COVID-19 cases in a workplace within a 14-day period. The information in this subsection applies until no new COVID-19 cases are detected in a workplace for 14 days. The definition of outbreak is not limited to workers –– it includes vendors, suppliers, clients and members of the public. For example, a three-person family infected with COVID-19 that shops in a grocery store would trigger the definition of an outbreak, requiring the business to follow the procedures defined below.

    If a work site is deemed to have multiple infections or outbreaks, the employer must provide COVID-19 testing to all employees except those who were not present during the period of the outbreak.

    With regard to testing, the regulations explicitly require:

    1. all employees in the exposed workplace to be tested, then retested one week later. Negative COVID-19 test results “shall not impact the duration of any quarantine period required by, or orders issued by, the local health department.”
    2. After the first two required COVID-19 tests, employers must provide continuous testing of employees who remain at the workplace at least once per week, or more frequently if recommended by the local health department.

    Exceptions to testing:

      li>Employees who weren't physically present at the workplace during the relevant 14 day period;
    • Employees who were fully vaccinated before the close contact and don't have COVID-19 symptoms;
    • COVID-19 cases who did not develop symptoms after return to work , who have returned to work and remained symptom free for 90 days after the initial inset of symptoms, or for asymptomatic COVID-19 cases who returned to work and remained symptom free for 90 days after the first positive test.
    • Employers must adhere to quarantine requirements as defined in the subsection above, Exclusion from the Workplace and Quarantine of Infected Workers. Employers must investigate and determine what workplace factors contributed to the COVID-19 outbreak and take steps to remedy them. The investigation and review must be documented. The documentation must include:
      1. investigation of new or unabated COVID-19 hazards including the employer's leave policies and whether employees are discouraged from taking leave or encouraged to return to work early from quarantine;
      1. investigation of the ventilation system, lack of distancing or using PPE, and the employer’s testing policy. Employers must specifically investigate and evaluate whether physical distancing should be implemented.
      Employers must give notice to employees of their right to request a respirator for their voluntary use if they aren't fully vaccinated.
    • Review must be done every 30 days when the outbreak is continuous or in response to new hazards or information. An employer must make changes in the workplace when hazards are identified, such as moving indoor activities outdoors or implementing remote work, increasing physical distance or PPE use.
    • As required by AB 685, the regulations confirm the employer’s requirement to report outbreaks to the local public health department within 48 hours “after the employer knows, or with diligent inquiry would have known, [of the outbreak]... ”
    • Major Outbreak

      A major outbreak is 20 or more COVID-19 cases within a 30-day period. As with other outbreaks, a major outbreak retains that status until no new cases are detected for 14 days. When a workplace experiences a major outbreak, the employer must provide workers COVID-19 testing twice weekly during the relevant 30-day period. All requirements related to investigations during outbreaks apply during major outbreaks. Employers must notify the local health department of any major outbreaks and follow its recommendations.

      In addition to addressing COVID-19 hazards, employers must take these actions during a major outbreak:

      • Employees in the exposed group shall wear face coverings while indoors and outdoors and less then 6 feet from another person, unless an exception to the se of face coverings applies.
      • Give notice to employees of their right to request a respirator for their voluntary use if they aren't fully vaccinated;
      • Inspect filtration units and install efficiency filters.
      • Determine whether there’s a need for a respiratory protection program or whether improvements to the existing system can be made.
      • Implement any other measures deemed necessary by Cal/OSHA.

      Employer-Provided Housing

      Employers that provide employee housing must follow new, strict COVID-19 prevention guidelines. Per the regulations, employer-provided housing is “arranged for or provided by an employer, other person, or entity to workers, and in some cases to workers and persons in their households, in connection with the worker’s employment,whether or not rent or fees are paid or collected.”

      The definition of housing is “any place or area of land, any portion of any housing accommodation, or property upon which a housing accommodation is located, consisting of: living quarters, dwelling, boardinghouse, tent, bunkhouse, maintenance-of-way car, mobile home, manufactured home, recreational vehicle, travel trailer, or other housing accommodations.”

      Employer-provided housing does not include accommodation for the purpose of emergency response, including firefighting, rescuing, evacuating and support activities. It does not apply to government entities, or housing that is provided temporarily by a private employer and is necessary to conduct emergency response operations.

      The regulations require that shared housing unit assignments be prioritized in this order:

      1. Households that maintain a residence outside of work, such as family members, must be housed in the same housing unit without other persons.
      2. Residents who work in the same crew or at the same work site must be housed in the same housing unit without other persons.
      3. Employees who do not usually maintain a common household, work crew, or work site must be housed in the same housing unit only when no other housing alternatives are possible.

      Physical distancing and other controls must be maintained. Employers must provide face coverings to all residents and advise them how and when to use them.

      Employers must adhere to strict cleaning and disinfecting procedures. They also should screen residents for COVID-19 symptoms, and report any.

      Employers must establish, implement and maintain effective policies and procedures for COVID-19 testing of exposed occupants, those with symptoms or as recommended by the health department. Employers must implement specific isolation guidelines and effectively isolate residents exposed to COVID-19 from other occupants. They must provide them with a private bathroom, sleeping area and cooking and eating facilities. Employers must keep personal identifying information confidential, and are subject to the same exclusion and isolation requirements as defined above.

      This section doesn't apply to:

      • The requirements do not apply to employees with occupational exposure to COVID-19 as defined by §5199, when covered by that section.
      • The requirements do not apply to employer-provided housing used exclusively to house people with COVID-19 or when a housing unit houses one employee.
      • The requirements do not apply to housing in which all residents are fully vaccinated.
      • Employers must investigate their ventilation systems in the housing units. If there is no Minimum Efficiency Reporting Value (MERV) 13 or higher filter in use, portable or mounted High-Efficiency Particulate Air (HEPA) filtration units must be used, to the extent feasible, in all sleeping areas in which there are two or more residents who are not fully vaccinated.
      • Employers also must instruct residents not to share dishes, drinking glasses, cups, utensils, and other items.
      • Employers must continue to isolate and quarantine people diagnosed with COVID-19 and their close contacts. Effective quarantine includes providing residents who had a close contact with a private bathroom and sleeping area. The new regulations exempt these individuals from the quarantine requirement:
      • fully vaccinated residents who do not have COVID-19 symptoms; and
      • people with COVID-19 who have met the requirements of subsection 3025 (A) or (B) and have remained asymptomatic for 90 days at the initial onset of COVID-19 symptoms or, for those who never developed symptoms, for 90 days after the first positive test.
      • Employer-Provided Transportation

        The regulations define employer-provided vehicle transportation as “any transportation of an employee, during the course and scope of employment, provided, arranged for, or secured by an employer including ride-share vans or shuttle vehicles, car-pools, and private charter buses, regardless of the travel distance or duration involved.”

        Exceptions

        These requirements do not apply if the driver and all the passengers are from the same household outside of work, such as family members. Nor are they applicable to employer-provided transportation necessary for emergency response, including firefighting, rescuing and evacuating and support activities.

        Transportation Priorities

        The regulations require that employers prioritize transportation assignments in this order:

        1. Employees residing in the same housing unit must be transported in the same vehicle.
        2. Employees working in the same crew or work site must be transported in the same vehicle.
        3. Employees who do not share the same household, work crew or work site must be transported in the same vehicle only when no other transportation is possible.

        Employers must ensure that employees observe the physical distancing and face-covering requirements while awaiting transportation. The vehicle operators and passengers must be separated by at least 3 feet in all directions, and the employer must provide the vehicle operator and the occupants with face coverings.

        The employer must develop, implement and maintain effective procedures for screening and excluding drivers and riders with COVID-19 symptoms before they board shared transportation.

        Cleaning and disinfecting requirements must be followed strictly.

        Employers must adhere to ventilation requirements such as keeping vehicle windows open and setting the ventilation system to maximize outdoor air. The windows may be closed when the outside temperature is extreme (too hot or too cold) or to protect riders from other inclement weather. The vehicle must have a cabin air filter in use when the EPA's Air Quality Index for any pollutant is greater than 100.

        Employers must provide hand sanitizer in each vehicle and ensure that drivers and all occupants sanitize their hands before entering and exiting the vehicle.

        Some exceptions to requiring prevention measures in employer-provided transportation are:

        • employees with occupational exposure as defined by § 5199;
        • vehicles in which all employees are fully vaccinated;
        • public transportation.

        Physical distancing and face coverings are still required, and employers must continue to enforce such measures during transportation. In addition, employers must ensure that there is one unoccupied seat between each person in the vehicle. The vehicle operator and passengers must be separated by at least 3 feet in all directions during the operation of the vehicle. (Calculating the space between bodies or between heads are acceptable measuring methods.)

        Employees who are not fully vaccinated must be provided with respirators for voluntary use and encouraged to use them.

        Cal/OSHA carved out an exception to the physical distancing requirement in vehicles: when all persons who are not fully vaccinated are required by the employer to wear respirators and are using them in compliance with § 5144.

        The regulations for employer-provided transportation take precedent if they conflict with other sections of the ETS regulations.

        FAQs

        Cal/OSHA has published frequently asked questions and answers about the COVID-19 Cal/OSHA emergency regulations (regulations).

        Employers can review the FAQs to evaluate whether they are correctly applying the regulations in their specific workplaces. Some questions and answers are common to different employers and workplaces. Following is our summary of those.

        Scope

        The regulations exempt employees covered by an aerosol transmissible disease (ATD) exposure control plan. Is an employee in a single workplace subject to both the regulations and ATD standard at different times?

        No. In a facility or operation that is within the scope of the ATD standard, employees with occupational exposure to aerosol transmissible diseases are covered by the ATD standards, and not the regulations. This is so even when an employee who has occupational exposure performs tasks that do not include exposure to ATDs –– for example, when a hospital nurse who performs patient care spends time in the hospital's human resources office.

        May an employer at a workplace covered by the ATD standard deem all employees on-site to have occupational exposure to COVID-19, and exempt them from the regulations?

        Possibly. If the employer provides all employees with protections under its ATD exposure control plan and has incorporated those workers into the plan in accordance with the law, they would not be subject to the regulations.

        Enforcement

        How will Cal/OSHA enforce the regulations as employers implement the rule?

        All employers are expected to comply with all provisions of the regulations, but Cal/OSHA will take into consideration an employer’s good-faith efforts to comply. Cal/OSHA will cite but not assess monetary penalties for violations of the regulations for the first two months the rules are in effect (through Feb. 1, 2021), if the employer adheres to its legally compliant injury and illness prevention program, respiratory protection program or other applicable Cal/OSHA standard in place prior to Nov. 30, 2020. This practice will not apply when an employer fails or refuses to abate a violation of the regulations Cal/OSHA has identified, or in the case of imminent hazard.

        Physical Distancing, Face Coverings and Other Controls

        Must employers ensure that employees are physically distanced by six feet when walking through common areas like hallways or aisles?

        Yes and no. An employer must ensure that employees maintain at least six feet of distance from another person unless it's not possible, in which case employees should be as far from others as possible. Momentary contact closer than six feet, such as moving through a hallway or aisle, is not a violation. An employer claiming that physical distancing of at least six feet isn’t possible must be prepared to demonstrate to Cal/OSHA why not.

        What is required if physical distancing is not possible at fixed-work locations?

        An employer must install cleanable, solid partitions (such as plexiglass barriers) that reduce the risk of aerosol transmission at fixed-work locations.

        What is a "fixed-work location" that would require solid partitions?

        A "fixed-work location" is a work station to which a worker is assigned with minimal movement away from it for extended periods of time. Jobs with typically fixed-work stations include cashier, greeter, receptionist, workers at desks or in cubicles and food production line workers. Not included is construction or maintenance work.

        How large must the solid partitions be, and do they prevent "close contact" exposures?

        They should be large enough to reduce the risk of aerosol transmission. Unless they are complete barriers (such as a wall), partitions do not eliminate the risk of transmission between workers. So workers within six feet of each other who work behind partitions are considered close contacts for determining COVID-19 exposure, regardless of the presence of partitions.

        Ventilation

        How can employers who rent or lease facilities, offices in buildings or other work spaces over which they have little control comply with the requirements regarding maximizing outdoor air and increasing filtration efficiency of the ventilation system?

        Employers in these circumstances should request that the building operator assist in compliance with the emergency regulation. Note, if the building operator has employees also woking on the premises, it, too, is subject to the rule. Employers should document efforts requesting that building owners and other lessors comply with ventilation requirements.

        Vaccines

        Once an employee is vaccinated, must the regulations still be applied to that person?

        Yes. For now, all prevention measures must be implemented. The impact of vaccines probably will be addressed in a future revision of the regulations.

        Testing

        What's the difference in the regulations between "offering testing" and "providing testing"?

        There is none. Employers must ensure that testing is made available to affected employees at no cost to them. Employers may not require employees to test if they object or refuse.

        Must an employer provide testing to employees at their work location?

        No. The employer may provide testing to employees at a testing site separate from their work location.

        May an employer send its employees to a free testing site for testing (a site, for example, run by the county)? And is such an option deemed to be at "at no cost to employees"?

        Yes. If employees incur no cost for the third-party testing, it is in compliance if the employer pays employee wages for their time required to get tested, as well as travel time to and from the testing site. Employers also must reimburse employees for travel costs to the testing site (for example, mileage or public transportation).

        What should employers do if employees refuse to take a coronavirus test offered by the employer?

        An employee may decline or refuse to take a test the employer offers at no cost, with no regulatory violation. The employer is not required to obtain a signed declaration from employees who refuse to take the COVID-19 test offered by the employer.

        Outbreaks and the "Exposed Workplace"

        What is an "exposed workplace," and how should an employer determine which work areas are included?

        An exposed workplace is a work location, working area or common area used or accessed by a person with COVID-19 during the "high-risk exposure period." [1] Such locations include bathrooms, walkways, hallways, aisles, break rooms or eating and waiting areas. If, within 14 days, three people with COVID-19 (or 20 cases within a 30-day period) share the same "exposed workplace," the COVID-19 outbreak standard of the regulations applies and additional testing will be required. When determining which areas constitute a single "exposed workplace" for purposes of enforcing testing requirements, Cal/OSHA does not expect employers to treat areas where masked workers momentarily passed through the same space without interacting or congregating as an "exposed workplace" (see Physical Distancing, above). So they may focus on areas where transmission is more likely.

        Does the "exposed workplace" mean the entire workplace? Did this change after Jan. 1, 2021, when AB 685 went into effect?

        No. The "exposed workplace" includes only the areas of the facility where the COVID-19 case/s were present during the high-risk exposure period. This did not change effective Jan. 1, 2021.

        Does the testing requirement for outbreaks triggered by three or more COVID-19 cases (or 20 or more within 30 days) pertain to an entire building?

        No. The testing requirement is triggered by three or more cases within a 14-day period (or 20+ in 30 days for a major outbreak) present in the same "exposed workplace" during the "high-risk exposure period" (see footnote 1). For other areas of the work facility, follow the requirement for employees who are exposed to COVID-19 cases.

        May an employer separate employees into cohorts to reduce the likelihood of COVID-19 cases occurring in the same work locations/area?

        Yes. That is an acceptable strategy to reduce risk and reduce testing obligations.

        For employers with works shifts at a given facility that don't overlap, may each shift be considered as a separate "exposed workplace," as defined by the regulations?

        Yes, if the facility is well-ventilated and the regulations' cleaning/disinfection requirements are met between or before shift changes.

        How does an employer measure the 14- or 30-day period in which to look for positive cases to determine if there has been an outbreak or major outbreak?

        Determine the testing date of the cases. Any cases for which the tests occurred within 14/30 days would be reviewed to see if other criteria for an outbreak have been met.

        Is the outbreak requirement of "three or more cases" and "20 or more cases" limited to employee cases? Or do any cases involving anyone who has been in the workplace count toward the requirement?

        Employee status is irrelevant. Any person with a confirmed case of COVID-19 who has been in the exposed workplace during the high-risk exposure period counts toward the case threshold.

        When must an employer exclude employees from work?

        Employees must be excluded from work if they are: (1) COVID-19 cases; or (2) have had close contact COVID-19 exposure from the workplace.

        When may an employee exposed to a COVID-19 case in the workplace return to work?

        Per Gov. Newsom's Executive Order N-84-20 and current quarantine guidance by the California Department of Public Health, an exposed employee who does not develop symptoms of COVID-19 may return to work after 10 days have passed since the date of the last known exposure. When there is a critical staffing shortage, the CDPH allows workers in the health-care, emergency response and social services fields to return to work after seven days if they have a negative PCR test result collected after day five.

        Exclusion Pay and Benefits

        If an employee is unable to work because of his or her COVID-19 symptoms, must an employer, per the regulations, "maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employees right to their former job status, as if the employee had not been removed from their job"?

        No. If an employee is unable to work because of COVID-19 symptoms, he or she would not be eligible for exclusion pay and benefits. But the worker might be eligible for workers’ compensation or state disability insurance benefits. Employers must provide salary continuation to COVID-exposed employees who are able and available to work but who are required to isolate. Salary continuation is not required if the COVID-exposed employee can work from home.

        Must an employer exclude an employee who claims a COVID-19 workplace exposure?

        Not necessarily. An employer should take any reports seriously and should investigate any evidence of an exposure. It is ultimately the employer’s responsibility to determine if an exposure occurred.

        How can employers prove that a COVID-19 exposure is not work related, and rebut the presumption under SB 1159?

        SB 1159 provides a rebuttable presumption that an employee’s illness related to COVID-19 is an occupational injury entitling the worker to workers’ compensation benefits. To rebut the presumption, an employer must conduct an investigation and produce comparable evidence to show it is likelier than not that an employee’s COVID-19 exposure did not occur in the workplace. The regulations provide no guidance for what evidence would be required to overcome the presumption.

        How will the exclusion pay provision be enforced?

        As with any violation, Cal/OSHA has the authority to issue a citation and require abatement.

        May an employee receive both temporary disability benefits under workers’ compensation and wage continuation (or a portion of their wages) because they are excluded from work?

        No. Cal/OSHA does not consider an employee receiving workers’ compensation temporary disability benefits for wages lost during the period in which they are excluded from the workplace "able and available to work" as required by the regulations. So a worker may not receive both types of benefits.

        Waivers of Exclusion Requirement Based on Community Health and Safety

        What should an employer consider before seeking a waiver from the return-to-work requirements from Cal/OSHA?

        Employers may request a waiver of the regulations' requirement to quarantine/isolate exposed employees from the workplace. They must demonstrate that doing so would create an undue risk to public health and safety. An operation that qualifies must provide goods or services that, if interrupted, would cause an undue risk to a community’s health and safety. This exception is narrower than the definition of "critical infrastructure." An operation must be facing a potential staffing shortage based on actual COVID-19 cases or exposure in order to qualify for a waiver. Requests should not be made in anticipation of a future outbreak. Cal/OSHA will not grant a waiver in violation of any order issued by a local or state health official pertaining to isolation or quarantine.

        What information should an employer provide to Cal/OSHA when seeking a waiver of the requirement to exclude workers from the workplace who are exposed to COVID-19 and those who test positive?

        Employers should email the request to rs@dir.ca.gov. In the event of an emergency, an employer may request a provisional waiver by calling the local district office while it prepares its written request. Although there is no set criteria in the regulations for granting a waiver, this information should constitute a complete waiver request that Cal/OSHA could review quickly:

        • employer name and business or service;
        • employer contact name, address, email and phone number;
        • statement that there are no local/state health officer orders for isolation or quarantine of the excluded employees;
        • description of the ways in which excluding employees exposed to or testing positive for COVID-19 from the employer's workplace creates an undue risk to the community’s health and safety (also, number of employees required to be quarantined under the regulations, and whether each was exposed to COVID-19 or tested positive for COVID-19);
        • employer’s control measures to prevent transmission of COVID-19 in the workplace if the affected employees return or continue to work in the workplace, including the prevention of further exposures. (Preventive measures might include isolating the returned employees at the workplace, other employees using respiratory protection in the exposed workplace, etc.)


        Cal/OSHA may shut down a workplace that creates an imminent hazard

        As codified in LC 6409.1, AB 685 expands and clarifies Cal/OSHA’s authority to shut down workplaces or operations when it finds an imminent hazard due to COVID-19 exposure risk. If the agency finds that a workplace, operation or process exposes employees to a risk of COVID-19 infection and creates an imminent hazard to employees, it may prohibit entry to the workplace and may shut it down through the issuance of "Orders Prohibiting Use" (OPU).

        Imminent hazard: Per Cal/OSHA, this is "any condition or practice which poses a hazard to employees, which could reasonably be expected to cause death or serious physical harm immediately, or before the imminence of such hazard can be eliminated through normal enforcement procedures."

        Cal/OSHA inspections might result in citations with monetary penalties. The citation classifies each violation based on the severity of the hazard. Citations are classified as serious when Cal/OSHA demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. The agency immediately may shut down facilities, departments, operations or processes that, in its opinion, create an imminent hazard to employees.

        If Cal/OSHA exercises that authority, it must provide the employer with notice of the action and post that notice in a conspicuous place at the work site. Restrictions must be limited to the immediate area of risk and may not prohibit entry to or operation of other areas, operations or processes that don’t pose imminent hazards.

        Reduced Notice Periods for Issuance of Serious Violation Citations Related to COVID-19: Typically, Cal/OSHA must provide an employer 15 days' notice of its intent to issue a serious violation citation. It also must provide the employer the opportunity to respond and rebut the proposed citation before issuance. Employers can prevent the issuance of the citation by providing timely response and rebuttal.

        AB 685 modifies Cal/OSHA’s notice requirements to employers when issuing a serious violation citation related to COVID-19 risk. The agency is not obligated to provide 15 days' notice and may issue the serious violation citation immediately. The employer will still be able to contest the citation through existing Cal/OSHA appeal procedures, but may not prevent the issuance of the citation by rebuttal. Employers must determine immediately when and whether an appeal should be filed, as they won’t have the opportunity to negotiate with Cal/OSHA prior to the issuance of a serious violation citation. See the procedure for the issuance of an OPU.

        Cal/OSHA’s expanded authority under AB 685 expires on Jan. 1, 2023.

        Recommendations to Businesses

        We anticipate that the new rule will require employers to have a COVID-19 action plan that identifies risks and determines how to control exposure through actions such as using protective gear, social distancing, and improving ventilation.

        Employers are wise to draft and implement a separate COVID-19 pandemic plan distinct from its injury and illness prevention plan. The COVID-19 plan should address exposure risks, the manner in which the employer will correct the risks and how it will enforce procedures, such as through training, inspections, and review of processes for effectiveness. Moreover, it must be tailored to the employer's specific business, taking into account working conditions, whether workers are on-site or off-site, whether the business deals with the public, and how disinfection, PPE, and social distancing will be used to help keep employees safe. The plan also should specify how employees will be notified of exposure risk and what actions will be taken to disinfect and mitigate risk should there be a positive COVID-19 case at the work site.

        Review CDC guidance on specific industries when developing a disinfection and safety plan. Remember, the plan must be tailored to specific industries and businesses. The CDC is a good place for employers to start drafting their own plans


        References

        1. The high-risk exposure period is: For COVID-19 cases who develop COVID-19 symptoms, from two days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved. For persons who test positive but never develop COVID-19 symptoms, from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.
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