CAL/OSHA Imposes COVID-19 Safety Regulations on Businesses

< Previous	Table of Contents	Next >

---

On Nov. 19, 2020, Cal/OSHA approved safety regulations imposing new requirements on employers in an effort to keep employees in the workplace safe from the coronavirus. The regulations strengthen and expand many existing safety requirements, and impose new ones. According to California Attorney General Xavier Becerra “… the 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 Mr. Becerra's complete statement here.

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, improving ventilation;
6. denying employees workplace access until quarantine ends, paying employees throughout quarantines;
7. recording, reporting and allowing access to information;
8. reporting all outbreaks to the public health department, providing continuous testing to employees;
9. bed-spacing in employer-provided housing, eliminating bunk beds and disinfecting daily;
10. screening workers before they board employer-provided transportation, requiring distanced seating and face masks.

The temporary regulations can be found here.

Compliance with the regulations is mandatory, specific and detailed. Following is an exhaustive discussion of what's new.

Scope and Definitions

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:

• COVID-19: coronavirus, an infectious disease caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2)
• COVID-19 case: a person who:
  • 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.
  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: 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” as defined in the regulations. This applies regardless of the use of face coverings.
• COVID-19 hazard: exposure to potentially infectious material that may 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 or 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: 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 the person’s 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 U.S. Food and Drug Administration (FDA) or has an emergency use authorization from the FDA 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: any work location, working area or common area at work 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. The exposed workplace does not include buildings or facilities not entered by a COVID-19 case. Effective Jan. 1, 2021, when Assembly Bill 685 provisions become effective, the “exposed workplace” also includes, but is not limited to the work site of the COVID-19 case as defined by Labor Code § 6409.6(d)(5).
• face covering: a tightly woven fabric or nonwoven material with no visible holes or openings that covers the nose and mouth.
• high-risk exposure period:
  • for a person to develop COVID-19 symptoms: from two days before he/she 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; or
  • for a person to test positive who never developed COVID-19 symptoms: from two days before until 10 days after the specimen for their 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 it may be 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 PPE;
• how the employer will respond “rapidly and effectively” when COVID-19 cases occur, and ways to reduce or prevent the transition 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.

These regulations expand on 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 the hazards.

1. Investigation and evaluation include 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 may 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. Those people 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.
4. Employers must review all local and state orders and guidance and orders 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, including work practices or procedures to ensure they are being followed.

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.
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. 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, 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.

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.
2. Provide employees with information regarding benefits related to COVID-19 to which they might be entitled under applicable federal, state or local laws. 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 and hand hygiene, to be effective.
6. 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.
7. Stress the proper use of face coverings and that such coverings are not respiratory protective equipment.
8. 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.

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 may be found here.

Physical Distance, Face Coverings, Ventilation and Other Engineering Controls

Physical Distancing

According to the regulations, employees must be separated from others by at least 6 feet unless the employer can demonstrate that 6 feet of separation is not possible, and except for momentary exposure when people are moving. When it's not possible to maintain the distance, individuals must be as far apart as possible. There are no exceptions to the physical distancing requirements even in situations where maintaining such distance is difficult for employees.

Employers must determine if it’s possible to physically distance via alternatives to working in the workplace. Alternatives might include:

• teleworking or other remote work arrangements;
• reducing the number of individuals in an area at one time, including visitors and customers;
• providing visual cues such as signs and floor markings to indicate spacing and/or direction of travel;
• staggering arrival, departure, work and break times;
• adjusting work flow, such as reducing production speed, to enable greater distance between employees.

Face Coverings

The regulations direct that employers “shall provide” face coverings and ensure that they are worn by employees over the nose and mouth when indoors, when outdoors and fewer than 6 feet away from another person, and if it's required by the California Department of Public Health or a local health department. Employers also must ensure that face coverings are clean and undamaged. The regulations state that face shields are not a replacement for face coverings, although they may be worn in addition to masks for additional protection.

Exceptions

Exceptions to the provision of face covering requirement include:

• 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.

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 and disinfecting frequently touched surfaces and objects, such as doorknobs, elevator buttons, equipment, tools, handrails, handles, controls, 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 regular cleaning and disinfection.
• prohibiting the sharing of personal protective equipment and, to the extent feasible, items of regular physical contact, such as phones, headsets, desks, keyboards, etc. When it's not feasible not to share, the practice, per the regulations, must “be minimized and such items and equipment shall be disinfected between uses by different people.”
• 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.

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 infected workers are excluded from the workplace until the return-to-work requirements (discussed below) are met.
• Exclude all employees with COVID-19 exposure from the workplace for 14 days after the last known exposure to a COVID-19 case. If the employee is asymptomatic, exclusion can be reduced to 10 days if he or she follows these requirements:

1. Strictly adhere to all recommended nonpharmaceutical interventions, including wearing face coverings at all times, maintaining a distance of 6 feet from others and the interventions required below, through day 14.
2. Use surgical face masks at all times during work for employees returning after day 7 (if permitted to do so under the strict guidelines discussed below) and continue the use of face coverings when outside the home through day 14.
3. Self-monitor for COVID-19 symptoms through day 14, and if symptoms occur, immediately self-isolate and contact the local public health department or health-care provider, and seek testing.
4. Follow the directions of the local health department if it requires longer quarantine times.

• NOTE: The executive order says the 14-day time period in the Cal/OSHA regulation is suspended to the extent that it exceeds the longer of the updated guidance from the California Department of Public Health or "any applicable quarantine or isolation period recommended or ordered by a local health officer who has jurisdiction over the workplace." It is still important for businesses to review their local health orders to determine whether they may require a longer quarantine. Employers should adhere to the more restrictive quarantine and exclusion periods.

• 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, and benefit payment from public sources may be considered in determining how to maintain earnings, rights and benefits when permitted by law and when not covered by offers of compensation. Exceptions to this include:

  • any period of time, per the regulations, during which the employee is “unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission”;
  • when the employer demonstrates that the COVID-19 exposure is not work related.

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.

Exception

Per the regulations, “Employees who have not been excluded or isolated by the local health department need not be excluded by the employer, if they are temporarily reassigned to work where they do not have contact with other persons until the return-to-work requirements ... are met.”

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:

1. At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medication;
2. COVID-19 symptoms have improved; and
3. 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.

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.

The review must be updated 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:

• 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.

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.

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

Q: Must employers ensure that employees are physically distanced by 6 feet when walking in common areas like hallways or aisles?

A: An employer must ensure that employees maintain at least six feet of distance from other person’s unless it is not possible, in which case employees should be as far from others as possible. Momentary contact closer than six feet while in movement, such as in a hallway or aisle, would not be considered a violation. An employer claiming physical distancing of at least 6 feet isn’t possible must be prepared to demonstrate to Cal/OSHA why six feet pf physical distancing cannot be accomplished.

Q: What are the engineering requirements if physical distancing is not possible at fixed work locations?

A: At fixed work locations an employer must install cleanable solid partitions that reduce the risk of aerosol transmission (such as plexiglass barriers).

Q: What is a “fixed work location” that would require solid partitions?

A: A “fixed work location” is a work station where a worker is assigned to work with minimal movement from that location for extended periods of time. Examples include cashiers, greeters, receptionist, workers at desks or in cubicles, and food production line workers. It does not include construction or maintenance work.

Q: How large must the solid partitions be and do they prevent “close contact” exposures?

A: They should be large enough to reduce the risk of aerosol transmission. Unless they are complete barriers, partitions do not eliminate the risk of transmission between workers. Therefore, workers within 6 feet of each other who work behind partitions are considered close contacts for determining COVID-19 exposure, regardless of partitions.

Ventilation

Q: How can employers who rent or lease facilities, offices in buildings or other workspaces over which they do not have control comply with the requirements regarding maximizing outdoor air and increased filtration efficiency of the ventilation system?

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

Vaccines

Q: Once an employee is vaccinated, must the regulations still be followed for vaccinated persons?

A: Yes, for now, all prevention measures must continue to be implemented. The impact of vaccines will likely be addressed in a future revision of the regulations

Testing

Q: Is there a difference between “offering testing” and “providing testing” in the regulations?

A: No. The meaning is the same for both. Employers must be sure testing is made available to affected employees at no cost to them. Employers need not require employees to test if they object to testing or refuse to test.

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 an employer send their employees to a free testing site for testing (for example run by the county) and is this considered to be at “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 employee’s 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 (for example, mileage or public transportation cost).

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

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 declaration from employees who refused to take the COVID-19 test offered by the employer.

Outbreaks and the "Exposed Workplace"

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 the waiting areas. If, within 14 days, three COVID-19 cases (or 20 cases in a 30 day period) share the same “exposed workplace,” then 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,” 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 case(s) were present during the “high risk exposure period.” This will not change after January 1, 2021.

Q: Is the testing requirement for outbreaks triggered by three or more (or 20 or more) cases in an entire building?

A: No, the testing requirement is triggered by three or more cases in a 14-day period (or 20 or more cases in a 30 day period for a major outbreak) present in the same “exposed workplace” during the “high risk exposure period.” For other areas of the work place, follow the requirement for employees who are exposed to COVID-19 cases.

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

A: Yes, that is an acceptable strategy to reduce risk and reduce testing obligations.

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 regulations?

A: If the facility is well-ventilated and the cleaning and the disinfection requirements of the regulations 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 (or 30 day) period would be reviewed to see if the other criteria for an outbreak has been met.

Q: Is the “three or more cases” and “twenty 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 periods counts towards the 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 close contact COVID-19 exposure from the workplace.

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 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. CDPH allows workers in the healthcare, emergency response and social services fields to return to work after seven days with a negative PCR test result collected after day five when there is a critical staffing shortage.

Exclusion Pay and Benefits

Q: Does an employer have to “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” if the employee is unable to work because of his or her COVID-19 symptoms?

A: No, if an employee is unable to work because of his or her COVID-19 symptoms, then he or she would not be eligible for exclusion pay and benefits. The employee, however, may be eligible for worker’s 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 to be paid if the COVID exposed employee can work from home.

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

A: 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.

Q: How are employers proving that a COVID-19 exposure is not work related and rebutting the presumption under SB-1159 related?

A: SB-1159 provides a rebuttable presumption that an employee’s COVID-19 related illness is an occupational injury entitling the employee to workers’ compensation benefits. To rebut the presumption an employer must conduct an investigation and produce comparable evidence to show it is more likely than not that an employee’s COVID-19 exposure did not occur in the workplace. The regulations don’t provide any guidance on what evidence would be required to overcome the presumption.

Q: How will the exclusion pay provision be enforced?

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

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

A: 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. Cal/OSHA doesn’t consider them to be “able and available to work” as required by the regulations. Therefore, an employee cannot receive both types of benefits.

Waivers of Exclusion Requirement Based on Community Health and Safety

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

A: The regulations provides that employers can request a waiver of the requirement to quarantine/isolate exposed employees from the workplace if doing so would create an undue risk to public health and safety. . An operation must provide goods or services, the interruption of which would cause an undue risk to a community’s health and safety in order to qualify. This exception is narrower than the definition of “critical infrastructure,” though such operations may qualify if there is an adverse impact on a community’s health and safety. A facility must be facing a potential staffing shortage based on actual COVID-19 cases or exposure in order to qualify for a waiver. Request 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.

Q: What information should an employer provide to Cal/OSHA in seeking a waiver of the requirement to exclude COVID-19 exposed and COVID-19 positive employees from the workplace?

A: In seeking a waiver, employer should submit the request to rs@dir.ca.gov. In the event of an emergency, the employer may request a provisional waiver by calling the local district office while it prepares its written request. While there is no set criteria for granting a waiver in the regulations the following information should constitute a complete waiver requests which Cal/OSHA could quickly review and provide a response:

         1. Employer name and business or service;

         2. Employer point of contact name, address, email and phone number;

         3. Statement that there are no local or State Health officer orders for isolation or quarantine of the excluded employees;

         4. Statement describing the ways in which excluding the exposed or COVID-19 positive employees from the workplace impacts the employer’s operation in a way that creates an undue risk to the community’s health and safety;

              a.     Number of employees required to be quarantined under the regulations, and whether each was exposed to COVID-19 or tested positive for COVID-19;

          5. The 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.  Preventative measures may include isolating the returned employees at the workplace, use of respiratory protection by other employees in the exposed workplace, or other equally effective measures.

---

< FAQs – Contact Tracing Investigations	Table of Contents	CAL/OSHA Imposes New Notice and Reporting Obligations for COVID-19 Workplace Exposure >