On November 19, California’s Division of Occupational Safety and Health adopted an Emergency Temporary Standard to protect most workers in California from hazards related to COVID-19. One of the most significant provisions is that employers will be required to exclude workers who have either tested positive or been exposed to a COVID-19 case at work, and to continue paying their full wages, and maintain their seniority and other benefits, while they are out.

When does the Standard take effect?

The Office of Administrative Law approved the Standard yesterday, November 30.

How long is the Standard effective?

The Standard will be effective for 180 days after it is approved and published. However, it may also be renewed, replaced, or even withdrawn.

To whom does the Standard apply?

The Emergency Temporary Standard applies to all California employers, except the following:

  • Employers with only one employee if the employee has no contact with others
  • Employees who work from home
  • Employers covered by Cal/OSHA’s Aerosol Transmissible Diseases Standard, which includes the following:
    • Hospitals
    • Home health care
    • Skilled nursing facilities
    • Outpatient medical facilities
    • Long-term health care facilities and hospices
    • Medical transportation services
    • Medical outreach services
    • Emergency medical services

What does the Standard require?

Although employers may have already implemented precautions and protocols to address COVID-related issues in the workplace, the Standard requires employers to have a written COVID-19 Prevention Plan that addresses the following:

  • A system for communicating.

Employers must create a system for communicating with employees about COVID-19, including procedures and policies for accommodating employees with underlying conditions that put them at increased risk of severe illness resulting from COVID-19, reporting of symptoms and exposures, access to testing, and information about COVID-19 hazards and the employer’s COVID-19 policies and procedures.

  • Identification and evaluation of COVID-19 hazards.

Employers must allow employees to participate in identifying and evaluating COVID-19 hazards. Employers must develop and implement (1) a process for screening employees with symptoms of COVID, (2) policies and procedures to respond to individuals at the workplace who have tested positive for COVID, (3) policies and procedures to reduce transmission of COVID-19 in the workplace, and (4) a process that will identify all interactions, activities, processes, or equipment at the workplace that present an increased risk of COVID-19 hazards.

  • Investigating and responding to COVID-19 cases in the workplace.

Employers must respond to and immediately investigate positive COVID-19 cases in the workplace. Additionally, the employer must determine, to the extent possible, (1) the date of the positive test or diagnosis, (2) determine who may have been exposed in the workplace, (3) give notice of the potential exposure within one business day, and (4) offer free testing during working hours to employees who may have been exposed.

  • Correcting COVID-19 hazards.

Employers must implement policies, procedures, and control measures that address unsafe or unhealthy conditions or work practices in a timely manner based on the severity of the hazard.

  • Training and instruction.

Employers must provide effective training on (1) the employer’s COVID-19 policies and procedures, (2) COVID-19 benefits that the employee may be entitled to under federal, state, or local laws, (3) how COVID-19 is transmitted, (4) the importance of physical distancing, frequent and proper hand washing, and face mask usage, and (5) symptoms of COVID-19.

  • Physical distancing.

Employers must implement procedures to ensure that workers stay at least six feet apart, to the extent possible. This provision does not apply to momentary exposures within six feet when persons are in movement at work.

  • Face coverings.

Employers must provide face coverings and implement procedures to ensure that they are being worn properly indoors, and when outdoors and less than six feet away from another person. The Standard makes exceptions, among others, for employees working alone in a room and for employees with medical or mental health conditions.

  • Other engineering controls, administrative controls, and personal protective equipment.

Where physical distancing is not possible, employers must install “cleanable solid partitions” to reduce aerosol transmission between employees, maximize outside air ventilation if it does not pose a hazard to employees, implement cleaning and disinfecting procedures, and prohibit the sharing of personal protective equipment, and to the extent possible, items with which employees regularly come into contact at work, such as phones, headsets, desks, and keyboards.

  • Reporting, recordkeeping, and access.

Employers must maintain records of all positive COVID-19 cases in the workplace and report them to the local health department and as required by federal, state, or local law. Moreover, the written COVID-19 Prevention Program should be made available to employees upon request.

  • Exclusion of COVID-19 cases from the workplace.

As noted above, employers must exclude workers who have either tested positive or been exposed to a COVID-19 case at work. For those excluded from work, employers must continue paying their wages, and must maintain their seniority and other benefits.

  • Return to work criteria.

Employers must implement a protocol for employees to return to work after recovering from COVID-19.

For employees with COVID-19 symptoms, the employee cannot return to work until at least 10 days have passed since the first symptoms, at least 24 hours since a fever of 100.4 has resolved without use of fever-reducing medications, and the symptoms have improved.

For employees who tested positive but were asymptomatic, the employee cannot return to work until at least 10 days have passed since “the date of specimen collection” of the employee’s first positive test.

  • Notifying public health departments.

Employers must notify public health departments immediately but no longer than 48 hours after the employer knew or should have known about the existence of three or more COVID cases in a workplace in a 14-day period, or if there is a major outbreak where there are 20 or more COVID cases within a 30-day period.

  • Employer housing and transportation.

Employers must implement specific infection prevention protocols if they offer housing or transportation to their employees.

Additional details regarding the Standard can be found here

What this means for employers

Given the nuanced obligations imposed on employers, it is likely that employers will need to review and amend existing policies to ensure compliance with the Standard. If you need assistance in preparing or revising a written COVID-19 Prevention Plan, please contact any attorney in our offices in Los Angeles, Orange County, or San Francisco, or any member of our Workplace Safety Practice Group.

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