To protect employees in workplaces across California, regulators have adopted COVID-19 emergency standards. The rules, which took effect on Nov. 30, are enforced by the California Division of Occupational Safety and Health (Cal/OSHA).
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To safeguard employees across California, regulators have embraced crisis criteria. .
A legal challenge to the criteria is now underway. In December, a company coalition filed a lawsuit at a state court in San Francisco alleging that authorities exceeded their legal jurisdiction by adopting the criteria. Cal/OSHA declined to comment on the pending lawsuit.
The regulations apply to many workers, with three exceptions:
Underneath the Cal/OSHA regulations, employers need to notify workers who might have been subjected to COVID-19. If independent builders were onsite during the prospective vulnerability interval, they also would have to be informed.
AB 685 requires companies to notify employees of possible vulnerability when they know:
A verified COVID-19 case.
A favorable COVID-19 diagnosis.
A COVID-19-related sequence to isolate.
A departure because of COVID-19.
Beneath AB 685, note must be given within a business day to all workers who might have been exposed. If subcontracted employees possibly were exposed, their companies would have to be informed.
Cal/OSHA criteria requires businesses to supply completely free COVID-19 testing to vulnerable employees during work hours. Testing could be performed at the office or other approved places.
Returning to Work
The regulations include standards for returning to the office. Workers that developed COVID-19 symptoms have to be isolated for 10 or more days from the start of symptoms, and their symptoms will need to improve prior to returning to the office.
Workers who test positive but have no signs need to wait a minimum of 10 days out of the initial positive evaluation prior to returning to the office.
Focusing on Compliance
Many companies have COVID-19-related protocols set up, which they ought to upgrade to comply with the new Cal/OSHA needs.
On-Site COVID-19 Mobile Testing
Q: What must an employer do to investigate and respond to a COVID-19 case?
A: Investigating and responding to a COVID-19 case in the workplace includes the following:
Q: What are the testing requirements in the ETS?
A: An employer’s testing obligations are the following:
Q: Is there a difference between “offer testing” and “provide testing” in the ETS?
A: No. The meaning is the same for both terms.
Q: Does the employer have to provide testing to employees at their work location?
A: No. The employer may provide testing to employees at a testing site separate from their work location.
Q: Can employers send their employees to a free testing site for testing (e.g., run by their county) and is this considered to be “at no cost to employees?”
A: Yes, as long as employees incur no cost for the testing. Ensuring that an employee does not incur costs would include paying employees’ wages for their time to get tested, as well as travel time to and from the testing site. It would also include reimbursing employees for travel costs to the testing site (e.g., mileage or public transportation costs).
Q: What do employers do if employees refuse to take the tests required by various provisions of the emergency regulations?
A: An employer that offers a test at no cost to the employee does not violate the regulation if an employee declines or refuses to take it. The employer is not required to obtain a signed declination from employees who refuse to take a COVID-19 test offered by the employer.
Q: What does “during their working hours” or “during employees’ working hours” mean, in relation to providing COVID-19 testing?
A: These terms, as used in the regulations, mean that the test must be provided during paid time. While the employee must be compensated for their time and travel expenses, the employer is not obligated to provide the test during the employee’s normal working hours.
Q: What kinds of tests are acceptable to comply with the regulations’ testing requirements?
A: Tests approved by the United States Food and Drug Administration (FDA) or that have an Emergency Use Authorization (EUA) from the FDA to diagnose current infection with the SARS-CoV-2 virus may be used. These include both PCR and antigen tests. The test must be administered in accordance with the FDA approval or FDA EUA, as applicable.
Q: In a non-outbreak setting, how does an employer determine which employees may have had a COVID-19 exposure?
A: Employers must: determine which if any employee was within 6 feet of a COVID-19 case for a cumulative total of 15 minutes within any 24-hour period during the COVID-19 case’s “high risk exposure period.” The high-risk exposure period is:
Q: In a non-outbreak setting, what are employers required to do when they learn that one or more of their employees had a COVID-19 exposure at the workplace?
A: Employers must:
Q: In an outbreak (three or more COVID-19 cases in an “exposed workplace” within a 14-day period or identified as an outbreak by a local health department), what are an employer’s requirements?
A: In addition to the requirements for non-outbreak settings, an employer must:
Q: What are an employer’s requirements in a major outbreak (20 or more COVID-19 cases in an “exposed workplace” within a 30-day period)?
A: In addition to the requirements for non-outbreak settings, an employer must:
Q: What is an “exposed workplace” and how should an employer determine which work areas are included?
A: An exposed workplace is a work location, working area, or common area used or accessed by a COVID-19 case during the high-risk period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. If, within 14 days, three COVID-19 cases share the same “exposed workplace,” then the Multiple COVID-19 Infections and COVID-19 Outbreaks standard (section 3205.1) 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 pass through the same space without interacting or congregating as an “exposed workplace,” so they may focus on locations where transmission is more likely.
Q: Does the “exposed workplace” mean the entire workplace? Does this change after January 1, 2021 when AB 685 goes into effect?
A: No, the “exposed workplace” includes only the areas of the building where the COVID-19 cases were present during the “high-risk exposure period.” This will not change after January 1, 2021.
Q: Why does the standard use “exposed workplace” instead of a percentage of the entire workforce or some other method?
A: Focusing on three or more cases as an “exposed workplace” is preventative, to initiate testing at the beginning of an outbreak in the area where workers are at risk of exposure, and to contain the outbreak to the affected area. Typically, once an employer is aware of three or more COVID-19 cases in an exposed workplace, there is a likelihood that there are more unknown cases. Testing in the “exposed workplace” is intended to balance the need to tailor testing to the areas where workers have a risk of exposure to known COVID-19 cases and the need to do that on a comprehensive basis to contain transmission and account for the possibility that transmission is already occurring.
Q: Is the testing requirement for outbreaks triggered by three or more cases in an entire building?
A: No, the testing requirement is triggered by three or more cases in a 14-day period present in the same “exposed workplace” during the “high-risk exposure period.” For other areas of the workplace, follow the requirements for employees who are exposed to COVID-19 cases.
Q: How does an employer determine what part of a workplace is an “exposed workplace” for purposes of determining if an outbreak has occurred and who must be tested?
A: An “exposed workplace” is defined at section 3205(b)(7) and includes “any work location, working area or common area used or accessed by a COVID-19 case during the ‘high-risk period.’” For purposes of determining whether an outbreak has occurred, there must be three COVID-19 cases, all of whom worked in, used, or accessed the same “work location, working area or common area used or accessed” in a 14-day period. If one of the three cases is in a different work location within an establishment, an outbreak has not occurred.
Areas a COVID-19 case passed through (i.e., travelled through en route to a work area and did not stop or stopped momentarily while wearing a face covering) are not considered in determining the area of an “exposed workplace.” For example, if all three COVID-19 cases have been in a common area, but one of the cases only passed through while wearing a face covering, an outbreak has not occurred for purposes of the ETS.
Q: Can an employer separate employees into cohorts to reduce the likelihood of COVID-19 cases occurring in the same work locations/areas?
A: Yes, that is an acceptable strategy to reduce risk and reduce testing obligations. The ETS requirements must still be implemented in the exposed workplace.
Q: For employers who have several non-overlapping work shifts at a facility, can each shift be considered as a separate “exposed workplace”, as defined by the ETS?
A: If the facility is well ventilated and the cleaning and disinfection requirements of the ETS are met between or before shift changes, each shift may be considered as a separate “exposed workplace.”
Q: How can 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?
A: The employer should look to the testing date of the cases. Any cases for which the tests occurred within a 14-day period would be reviewed to see if the other criteria for an outbreak have been met.
Q: Is the “three or more cases” outbreak requirement limited to employee cases, or do cases involving anyone that has been in the workplace count towards the requirement?
A:Any confirmed COVID-19 case who has been in the exposed workplace during the high-risk exposure period counts towards the three-case threshold.
Q: When must an employer exclude employees from work?
A:Employers must exclude from work employees who (1) are COVID-19 cases, or (2) have had COVID-19 exposure from the workplace.
Q: What are the criteria for a COVID-19 case to return to work?
A: A COVID-19 case may return to work when any of the following occur:
Q: What are the criteria for an employee exposed to a COVID-19 case in the workplace to return to work?
A: Applying Executive Order N-84-20 and current CDPH quarantine guidance, while a 14-day quarantine is recommended, an exposed employee who does not develop symptoms of COVID-19 may return to work after 10 days have passed since the date of last known exposure. Additionally, CDPH has provided guidance permitting health care, emergency response and social services workers to return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage."
Q: Is a negative test required for an employee to return to work?
A: No, the ETS does not require an employee to have a negative test to return to work. The criteria for returning to work are listed above.
Q: Is the Housing for the Harvest program covered by section 3205.3, which addresses COVID-19 Prevention in Employer-Provided Housing?
A: Housing for the Harvest is a program that offers temporary hotel housing to agricultural workers who need to isolate or quarantine due to COVID-19. The purpose of the ETS is to prevent transmission to workers who are working while living together in employer-provided housing. Once an employee is isolated or quarantined, the prevention elements of the regulation designed to protect employees living together are no longer applicable and the only part of section 3205.3 that would apply is subsection 3205.3(h), which addresses isolation of COVID-19 cases and quarantining persons with COVID-19 exposure.
Q: Many growers have rented hotel rooms for COVID-19 positive employees to isolate them and reduce the spread of COVID-19 in housing, many of which do not include a kitchen. Does this violate section 3205.3?
A: Section 3205.3 does not require providing separate cooking and eating facilities to COVID-19 positive employees if they are not sharing cooking and eating facilities with others who are not positive.
Q: Does the ETS’ housing requirements apply to housing of H-2A employees subject to a federal agreement, even if that agreement allows for a greater number of employees in a given space?
A: Yes, the ETS applies to housing subject to an H-2A contract. Cal/OSHA may set stricter requirements than those set by contract or federal requirements.
Q: How does an employee enforce physical distancing and face covering requirements in employer provided housing?
A: Section 3205.3 does not require employers to enforce physical distancing and face covering requirements. The employer obligations include:
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Q: What reporting and recordkeeping requirements are in the ETS?
A: An employer’s reporting and recordkeeping requirements include the following:
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