FAQs — Cal/OSHA Safety Regulations

What industries or employers fall within the aerosol transmissible disease standard and, therefore, don't have to comply with the Cal/OSHA regulations?

Businesses must conduct an assessment of whether employees have occupational exposure to aerosol transmissible diseases (ATDs). The exposure can be by work activity or working conditions that are reasonably anticipated to create an elevated risk of contracting any disease caused by aerosol transmissible pathogens or aerosol transmissible pathogens-laboratory if protective measures are not in place.

Whether a particular employee has occupational exposure depends on his or her specific tasks, activities and work environment. For example, occupational exposure typically does not exist if a hospital employee works only in an office environment separated from patient care facilities.

Under the applicable ATD regulations, these establishments/services are required to conduct an assessment to determine whether their employees have occupational exposure to ATDs:

• hospitals, skilled nursing facilities
• clinics, medical offices and other outpatient medical facilities
• facilities where high hazard procedures are performed
• home health care, long-term health care facilities, hospices
• medical outreach services
• paramedic and emergency medical services (including such services when provided by firefighters and other emergency responders)
• medical transport
• police services
• public health services
• correctional facilities
• homeless shelters
• drug treatment programs
• pathology laboratories, medical examiners' facilities, coroners' offices, mortuaries, laboratories where procedures use materials that contain or are reasonably anticipated to contain aerosol transmissible pathogens
• maintenance, renovation, service or repair operations involving air-handling systems or equipment or building areas that may reasonably be anticipated to be contaminated with aerosol transmissible pathogens
• hazardous waste and emergency response operations

Outpatient dental clinics, outpatient medical specialty practices and residential care facilities where employees provide social services, but no medical care, are not subject to the ADT standard, if certain conditions are met.

For additional information see the statute governing ATD.

We have employees who work from home, but occasionally come into the office; are the Cal/OSHA regulations applicable to our business?

Yes. If employers have workers who come into the office or facility for any reason, even occasionally or for short periods of time, they must comply with the regulations. Employees who work exclusively from home and never enter the workplace would be excluded.

I own very small bakery with one part time employee. Does my business have to comply with the Cal/OSHA regulations?

Yes, if the employee has any contact with the public or other persons.

How do the Cal/OSHA regulations apply to temporary agencies or staffing firms?

The regulations apply in the same manner as all other employer types. The only difference is a temporary agency or staffing firm will likely learn of a potential exposure from the contracted employer. In that case, the temporary agency or staffing firm will have to provide notice to the exposed employee, make testing available, and pay the excluded employee’s earnings if applicable.

Temporary agency and staffing firms could consider negotiating with the contracting employer to pass on the cost of these requirements to the them especially if the exposure is found to be work related.

Are we now required to screen our employees before they enter our workplace?

Yes. Employers must develop and require employees to participate in either a self-screening process where employees evaluate their own symptoms prior to entering the workplace or they can develop a workplace program where employees are screened as they enter the workplace.

If employers use a self-screening process, they must pay non-exempt employees for the time it takes to conduct the self-screening and reimburse employees for any equipment, like a thermometer, that is a required part of the self-screening.

If employers screen on site, they must pay non-exempt employees for the time screening and must require the use of face coverings by both screener and employee and use a non-contact thermometer.

Should we save screening results if our business actively screens employees as they enter the workplace?

It is advisable to keep records of the screening process in part to show compliance with the Cal/OSHA regulations and to demonstrate they are doing everything required to maintain a safe and healthy workplace. Records should be kept confidential and out of personnel files.

How do we determine who “may have had a COVID-19 exposure”?

Employers must exclude from the workplace not only COVID-19 cases but also those potentially exposed. The regulations require employers determine who may have been exposed to a COVID-19 case in order to provide notice of potential exposure, to exclude them from the workplace to protect others, and provide testing. The CDC definition of a close contact mirrors the regulation’s definition of a COVID-19 exposure and is defined as individuals “being within 6 feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24 hour period within or overlapping with the "high risk exposure period".

The "high risk exposure period" is, for COVID-19 cases exhibiting symptoms, two days before the first symptoms developed 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 asymptomatic COVID-19 cases the high-risk exposure period is the two days before until ten days after the specimen for the first positive test for COVID-19 was collected.

Employers therefore must investigate to determine which employees meet the definition of a “COVID-19 exposure” and then provide them notice, provide the opportunity to be tested, and exclude them from the workplace.

If I cannot require a negative COVID-19 test in order for an employee to return to work how do I know when the employee can come back to work?

An employer must rely on its employee's report on whether they are asymptomatic, or their symptoms have subsided to comply with the return to work guidelines in the regulations.

When Symptomatic

· At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever and reducing medications;

· COVID-19 symptoms have improved;

· At least 10 days have passed since COVID-19 symptoms first appeared.

When Asymptomatic

Employees who test 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.

Employers are encouraged to document efforts made to confirm that employees meet the above guidelines prior to allowing them to return to work. Moreover, it may be prudent to require returning employees sign a document attesting that they fit within the required guidelines. These efforts will support employers attempts to maintain of healthy and safe workplace.

Can we use the time based/system symptom-based strategy to determine whether employees can return to work? Not all employees have primary care providers, and many are reluctant to pay the co-pay to see their primary care providers.

Yes. In fact, employers cannot require a negative test or a doctor’s note to allow an employee to return to work.

Are there any situations in which the full quarantine period of up to 14-days must be followed?

The regulations require a full 14-day exclusion from the workplace after the last known COVID-19 exposure to a COVID-19 case.

If we use a contact tracing app that is used by anyone who comes onto our work site is that sufficient or must we do additional investigation to determine who has been possibly exposed to a COVID case?

If the contact tracing app can identify about individuals “being within 6 feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the ’high risk exposure period’ the app is likely sufficient.

Of course, the employer must be able to ensure that all employees and others in the workplace are properly using the app. If the employer cannot guarantee proper usage of the app it may be necessary to further investigate as required by the regulations.

Cal/OSHA is clear that reporting a serious illness is not an admission that it is work related, nor is it an admission of responsibility.

If employee A was exposed to someone with COVID-19 and needs to be quarantined, do we then need to quarantine any employees who were exposed to employee A even if he does not have symptoms or did not test positive?

No. The regulations require exclusion only if the person is exposed to a COVID-19 case (an employee with a confirmed positive test). If employee A tests positive, then all employees exposed to them per the definition of a COVID-19 exposure, must be excluded from the workplace.

Are employers able to bring back employees prior to the 14-day quarantine after a COVID-19 exposure if their physician provides a return to work clearance?

Probably not, as the regulations don’t allow for quarantine exceptions unless the employer applies to Cal/OSHA for an exception because of the potential for “undue risk to a community’s health and safety.”

If an employee is quarantining at home because a family member is positive but the employee tests negative can that employee return to work before quarantine is up during a shift when no other employees are at work?

No. There are no exceptions to the exclusion or quarantine requirements in the regulations unless the employer applies to Cal/OSHA to allow the asymptomatic and negative employee remain at work or return to work early because “removal would create undue risk to a community’s health and safety.”

Our business is considered “essential” and we are considered essential infrastructure workers. As essential infrastructure workers can we continue to allow our employees to work if they have been exposed to COVID-19, but test negative and show no symptoms?

The only exception to the exclusion, isolation and quarantine mandates in the regulations is for the employer to make a request to Cal/OSHA to allow the asymptomatic and negative employee remain at work or return to work early because “removal would create undue risk to a community’s health and safety.”

The regulations require that employers conduct “periodic inspections” to identify unhealthy conditions and COVID-19 hazards. What does periodic mean and do the regulations provide any guidance?

The regulations don’t define what is meant by “periodic” except to require an investigation and inspection be conducted after a positive COVID-19 case. The schedule of inspection should be as frequent as necessary to insure employees are protected and may be more frequent for high touch or highly used areas (like break rooms and bathrooms). A walk through of the facility should be conducted daily to insure employees aren’t engaging in habits or using equipment or performing duties in a way to cause an unhealthy or safe environment for others.

Cal/OSHA requires employers pay for testing in certain circumstances. Do I have to enter into a relationship with the testing facility or can I refer our employees to the county provided local free testing sites that are walk-up and available during working hours?

The regulations don’t define how or where the testing should take place. Therefore, it is likely permissible to direct employees to the local walk up free testing site. The employer will have to pay all the time an employer spends standing in line and getting tested and should have a policy directing employees to immediately disclose their results to the employer.

If we determine employees have been exposed to a COVID-19 case how soon must we offer testing?

The regulations are silent as to how quickly testing must be offered. It is recommended testing be offered within 24 hours of the known COVID-19 case since employers are required by the regulations and AB 685 to notify exposed employees within one day.

In order to quickly and efficiently offer testing it’s recommended that employers investigate testing options now, before they are faced with a COVID-19 case and are required to adhere to the mandate.

We require employees report any COVID-19 symptoms to their manager who then completes a report. Is this sufficient to adhere to the Cal/OSHA regulations?

Employers should require employees report all symptoms of COVID-19 to enable the employer to exclude the employee from the workplace. If your business’ policy is that employees report symptoms to their supervisor or manager that is sufficient as long as the manager immediately reports it to management with the authority to begin an investigation to exclude the employee, provide testing and exclude any possibly exposed employees. A written report should be kept of the company’s effort to comply with its policy.

I know that several of our employees have underlying disabilities or co-morbidities that we are currently accommodating. Do I have to ask them whether they need additional accommodations because they may be at risk for severe COVID-19?

No. In fact, we discourage employers from questioning employees about their known or suspected disabilities, medical conditions or co-morbidities to determine whether they need or want additional accommodations. Employers are required to accommodate known disabilities and it’s the employee’s responsibility to request a specific accommodation. If an employee doesn’t request an accommodation it could be considered harassing or discriminatory to provide an accommodation that excludes or limits an employee’s access to the workplace.

A better strategy is to follow your own policy and require doctors’ notes, engage in the interactive process and provide accommodations when and if requested.

Do the Cal/OSHA regulations require businesses to notify employees now of their rights to certain company benefits, or can we wait until AB-685 becomes effective January 1, 2021?

Yes. The Cal/OSHA regulations require that at the time of exclusion the employer provide the employee with information on earnings and benefits. The notice must include COVID-19 related benefits potentially available to the employee under federal, state or local laws, including workers compensation benefits, and must include employer provided benefits.

If an employee tested positive and our company offers PTO can that employee apply for EDD disability benefits and are we permitted to supplement the disability benefits with PTO in order for the employee to earn their full salary under the new regulations?

Probably. If the COVID-19 case applies for and receives state disability benefits, the employer can, at the employees’ option, supplement the disability payments with the employees accrued but unused PTO so the employee reaches 100% of his wages.

Cal/OSHA regulations require employers continue an employee’s earnings and benefits if they are required to quarantine. Specifically, under what circumstances is an employer required to continue earnings and benefits?

Employees are entitled to receive continued earnings, benefits and seniority if (1) they are excluded from work; (2) are able and available to work; and (3) the exposure is work related.

If an employee is able and available to work an employer can allow the employee to work from home, isolate him within the facility and away from other employees, or otherwise allow him to work without exposing others.

An employee has already taken his 80 hours of Families First Coronavirus Response Act expanded sick pay and they have been exposed to COVID-19 in the workplace and are required to quarantine again, do I have to pay them for the second quarantine?

If the excluded employee is (1) excluded from work; (2) able and available to work; and (3) the exposure is work related the employer must continue his earnings, benefits and seniority and return him to his former job. It is irrelevant that they have previously quarantined.

The employer can use accrued but unused sick leave to offset the employer paid wages.

If my employee is eligible for earnings and benefit continuation while he quarantines, but he does not have any sick pay available, do I have to pay him anyway?

Yes.

The definition of outbreak per SB-1159 versus Cal/OSHA regulations are different. Should we follow the more restrictive Cal/OSHA definition of outbreak to ensure that we follow the mandatory reporting that is required during outbreaks?

Yes. In general, where there is a discrepancy in federal, state, and local laws employers are required to follow the law or regulation that provides the most benefit or the greatest protection to employees.

If multiple employees work in a large room and are able to distance more than 6 feet are they all required to wear face covering at all times?

No, if the employer can insure all employees are consistently separated by at least 6 feet and enforce the use of face coverings when separation of 6 feet is not possible.

We have a break room that we allow employees to use for eating and a place to go during breaks. Do we need to require masks in the break room?

Employees are required to identify and correct any unhealthy conditions, work practices or procedures. Allowing employees to gather in a breakroom could be considered an unhealthy condition that should be corrected. It may be necessary for some employers to close the breakroom because of the difficulty in monitoring physical distancing and the use of face coverings and limiting the number of people using the breakroom at one time. Moreover, the breakroom has numerous high tough areas that may be difficult to keep clean and disinfected.

If the breakroom is kept open employers should develop written procedures on how employees will be protected when using it, designate an employee responsible to limit the number of employees allowed in, monitor social distancing and face covering use, and clean and disinfect frequently.

Are there any landlord requirements to ensure that tenants have the compliant ventilation?

No. However, its recommended that employers contact their landlord and confirm the ventilation systems serving their workplace are compliant. Documenting the effort and the landlord response is important to demonstrate compliance with the regulations.

If an employee reports to a main worksite but is then transported in employer-provided vehicles to a specific location to perform work must the employer follow the Cal/OSHA regulations related to employer-provided transportation?

Yes. Anytime the employer provides transportation the transportation regulations apply.

What do the regulations say about my responsibility for recording COVID-19 cases?

Employers are required to “keep a record of and track all COVID-19 cases”. Information that must be kept includes the employee’s name, contact information, occupation, location where the employee worked, the last day at the workplace, and the date of a positive COVID-19 test.

This requirement applies to all businesses regardless of size and regardless of whether they must also adhere to Log 300 recording requirements.

There is a requirement that employers report to Cal/OSHA any serious COVID cases. Does this only apply to cases that are work-related or is it applicable to all serious COVID cases?

Cal/OSHA requires employers to report any serious illness, serious injury or death of an employee that occurred in connection with work. The report must be made within eight hours of when the employer knew or should have known of the illness or injury. Cal/OSHA regulations state that a COVID inpatient admission must be reported only if the hospitalization occurs within 24 hours of the incident and the incident means an exposure. In addition, OSHA mandates that fatalities must be reported only if they occur within 30 days of the exposure.

Cal/OSHA guidance states employers should report all serious COVID-19 cases regardless of whether they are confirmed to be work related or not. Cal/OSHA is clear that reporting a serious illness is not an admission that it is work related, nor is it an admission of responsibility.

Are there any requirements on how the training mandated by these Cal/OSHA regulations is provided?

No. It can be done in person, by video, webinar or other medium. It may be conducted by anyone knowledgeable about the training requirements and there are no requirements on length. There are specific requirements on content.

How soon do we have to train employees?

The regulations aren’t specific on when training must occur, but we recommend it be done as soon as practicable and after the COVID-19 Prevention Program has been completed. A good strategy would be to roll out the COVID-19 Prevention Program and combine it with the required training. There is no guidance or stated requirements about how long the training should be, who can conduct it, or whether it must be repeated. Further the regulations don’t define whether newly hired employees must be trained and, if so, how soon after hiring new employees must be trained. A recording of the original training is likely sufficient for new hires.