CAL/ OSHA COVID-19 Testing Standards

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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:

• Determining when the COVID-19 case was last in the workplace, and if possible the date of testing and onset of symptoms
• Determining which employees may have been exposed to COVID-19
• Notifying employees of any potential exposures within one business day (and notifying any other employer who has potentially exposed employees in the workplace)
• Offer testing to potentially exposed employees at no cost and during working hours
• Investigate the exposure, whether workplace conditions could have contributed to the risk of exposure, and what corrections would reduce exposure

Q: What are the testing requirements in the ETS?
A: An employer’s testing obligations are the following:

• Inform all employees on how they can obtain testing. This could be through the employer, local health department, a health plan, or at a community testing center. The only obligation to all employees is to provide information.
• Offer testing to an employee at no cost and during working hours in the event of a potential COVID-19 work-related exposure.
• Provide periodic (at least weekly or twice per week depending on the magnitude of the outbreak) COVID-19 testing to all employees in an “exposed workplace” during an outbreak. 
• Testing must be provided in a manner that ensures employee confidentiality.

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:

• 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 ten days after the specimen for their first positive test for COVID-19 was collected.

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:

• Notify all employees and employees’ authorized representatives who may have had COVID-19 exposure within one business day in a manner that does not reveal the COVID-19 case’s personal identifying information
• Offer testing at no cost to any employee potentially exposed to COVID-19 in the workplace, and provide applicable benefit information. The time an employee spends being tested is considered compensable hours worked.
• Exclude from the workplace employees who test positive for COVID-19 and employees with COVID-19 exposure, and follow the requirements for preserving their pay and benefits
• Follow the return to work criteria for returning excluded employees to work
• Investigate the exposure and address hazards
• Follow all recordkeeping and reporting requirements for employee COVID-19 cases.

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:

• Immediately provide testing to all employees in the exposed workplace and exclude positive cases and exposures from work; repeat the testing one week later; and
• Continue testing employees at least weekly until the workplace no longer qualifies as an outbreak.

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:

• Provide testing to all employees in the exposed workplace at least twice weekly and exclude positive cases and exposures until there are no new cases detected for a 14-day period;
• Implement ventilation changes to mechanical ventilation systems including increasing filtration efficiency to at least MERV-13, or the highest efficiency compatible with the ventilation system.
• Evaluate whether HEPA air filtration units are needed in poorly ventilated areas;
• Determine the need for a respiratory protection program or changes to an existing respiratory protection program under section 5144 to address COVID-19 hazards; and
• Consider halting all or part of operations to control the virus.

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:

• For employees with symptoms all of these conditions must be met:
  1. At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
  2. COVID-19 symptoms have improved; and
  3. At least 10 days have passed since COVID-19 symptoms first appeared
• For employees without symptoms, at least 10 days have passed since the COVID-19 case’s first positive test
• If a licensed health care professional determines the person is not/is no longer a COVID-19 case, in accordance with California Department of Public Health (CDPH) or local health department recommendations.

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:

• Ensuring that the premises are of sufficient size and layout to permit at least six feet of physical distancing.
• Providing face coverings to all residents and provide information to residents on when they should be used in accordance with state or local health officer orders or guidance.

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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:

• Following state and local health department reporting requirements.
• Contacting the local health department when there are three or more COVID-19 cases in the workplace within a 14-day period.
• Provide the following information:
  • The total number of COVID-19 cases.
  • For each COVID-19 case, the name, contact information, occupation, workplace location, business address, the hospitalization and/or fatality status, and North American Industry Classification System code of the workplace of the COVID-19 case
  • Any other information requested by the local health department.
• The employer shall continue to give notice to the local health department of any subsequent COVID-19 cases at the workplace.
• Reporting serious occupational illnesses to Cal/OSHA, consistent with existing regulations.
• Maintaining records required by 8 CCR section 3203(b), which include inspection records, documentation of hazard corrections, and training records (requirements vary by employer size).
• Making the written COVID-19 Prevention Program available upon request to employees and employees’ authorized representatives.
• Recording and tracking all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. Medical information shall be kept confidential. The information shall be made available to employees, authorized employee representatives, or as otherwise required by law, with personal identifying information removed. This does not prevent employees or their representatives from obtaining an employer’s Log of Work-Related Injuries and Illnesses or other information as allowed by law.