On November 19, 2020, the California Occupational Safety & Health Standards Board (“Board”) adopted a comprehensive Emergency Covid-19 Prevention Regulation.  The regulation took effect on November 30, 2020 and will remain in effect until October 2, 2021, unless the Board votes to extend it.

The 21-page emergency regulation imposes numerous requirements on virtually all employers with few exceptions, including: (1) places of employment with only one employee who does not have contact with other individuals; (2) employees working from home; and (3) employees covered by 8 CCR § 5199 regarding aerosol transmissible diseases.

The regulation covers the following topics: (1) a requirement that employers implement a written Covid-19 Prevention Program; (2) protocols for multiple Covid-19 infections and Covid-19 outbreaks at a workplace; (3) protocols for a major Covid-19 outbreak at a workplace—20 or more Covid-19 cases within a 30-day period; and (4) requirements for Covid-19 prevention in employer-provided housing and transportation to and from work.

Covid-19 Prevention Program

Employers must implement a written Covid-19 Prevention Program.  The program may be integrated into the employer's Injury and Illness Program or maintained in a separate document.  The comprehensive Covid-19 Prevention Program must contain the following:

• A communication system asking employees to report to the employer Covid-19 symptoms, possible Covid-19 exposure, and potential Covid-19 hazards in the workplace; describing policies for accommodating employees at increased risk of severe Covid-19 illness; providing information about access to Covid-19 testing; and providing information about Covid-19 hazards in the workplace.
• Identification and evaluation of Covid-19 hazards, including screening employees for symptoms and developing policies for responding to an employee who is a Covid-19 “case” to prevent transmission in the workplace. The regulation defines a Covid-19 “case” as anyone who (a) has tested positive for Covid-19; (b) is subject to a Covid-19 related order to isolate issued by a health official; or (c) has died due to Covid-19.
• Investigation and response to Covid-19 cases in the workplace, including determination of who may have been exposed to the Covid-19 case and providing notice of potential exposure.
• Correction of Covid-19 hazards, including implementation of effective policies for correcting unsafe conditions or practices based on the severity of the hazard.
• Training and instruction to employees, including providing information about Covid-19 related benefits, methods of physical distancing, and proper use of face coverings.
• Physical distancing, including ensuring that employees are separated by at least 6 feet when possible.
• Providing face coverings to employees and ensuring employees wear them over their nose and mouth when indoors.
• Implementation of engineering controls, administrative controls, and personal protective equipment, including installation of solid partitions between employees when possible and maximization of the amount of outside air circulated in the worksite.
• Reporting, record keeping, and access. Employers must report Covid-19 cases in the workplace to the local health department when required by law.  Employers must also maintain records of the steps taken to implement the Covid-19 Prevention Program and provide employees access to the written plan upon request.
• Exclusion of Covid-19 cases and those who had Covid-19 exposure from the workplace to prevent transmission. Of particular importance is the requirement that employers must maintain an employee's earnings, seniority, and all other rights and benefits while the employee is excluded from work.  While the regulation is arguably unclear as to whether an employer must provide paid leave to an excluded employee, the FAQs clarify that leave must be paid.
• Return to work criteria, prohibiting a Covid-19 case, anyone with Covid-19 symptoms, and anyone who tests positive for Covid-19 but never develops symptoms from returning to work until certain requirements are met. Notably, the regulation specifically prohibits employers from requiring employees to provide a negative Covid-19 test before returning to work.

Multiple Covid-19 Infections, Outbreaks, and Major Outbreaks

A workplace identified by a local health department as the location of a Covid-19 outbreak or where there are 3 or more Covid-19 cases within a 14-day period must comply with specific requirements under the new regulation until there are no new Covid-19 cases for a 14-day period.  Similar requirements apply to a major outbreak, defined as 20 or more Covid-19 cases in an exposed workplace within a 30-day period.

Employers must provide Covid-19 testing to all employees, except those who were not present during the outbreak or the relevant 14 or 30-day period.  Any Covid-19 cases and those with Covid-19 exposure must be excluded from the workplace.  Employers must investigate all Covid-19 cases to determine if any workplace factors contributed to the outbreak and correct any hazards to prevent further transmission of Covid-19.

Covid-19 Prevention in Employer-Provided Housing and Transportation

The regulation imposes numerous requirements on employers to prevent Covid-19 transmission in employer-provided housing and transportation, including physical distancing controls, provision of face coverings, and daily cleaning and disinfecting of housing units and high-contact surfaces.

Employer Action Items

 This blog post contains a summary of the requirements under the regulation.  Employers are encouraged to read the regulation in its entirety here, as well as the FAQs published by the California Department of Industrial Relations here, which provide further guidance on complying with the new regulation. 

Due to the complexity of the requirements and the lack of clarity throughout the regulation, employers are advised to consult experienced employment counsel to prepare a compliant Covid-19 Prevention Program.