Before the Thanksgiving holiday, Cal/OSHA proposed emergency regulations to protect workers from COVID-19. These regulations have been approved by the Office of Administrative Law and are in effect as of yesterday, December 1st.
Complying with these regulations will be, as Doug Larsen has written at his California HR blog, “extremely time-consuming and expensive.” They include detailed and comprehensive requirements for a written COVID-19 Prevention Plan (CPP), workplace notifications, testing following a workplace exposure, and even providing “exclusion pay” to workers while they isolate.
Many employers have already created infectious disease prevention and response plans, perhaps based on guidance provided by the CDC or by the state of California at covid19.ca.gov. Sierra HR Partners has assisted many clients in developing these plans. Those plans will need to be updated in order to comply with the extensive new Cal/OSHA regulations. The Cal/OSHA standard will apply to most businesses in California. There are exceptions for companies with a single employee or employees working from home, and for those covered by the Aerosol Transmissible Diseases standard (primarily healthcare organizations.) The written CCP will look much like the Injury and Illness Prevention Program (IIPP) required by California law. It needs to include, for example, your methods for communicating with employees, and for employees to communicate with you. As with your IIPP, you will need to make individualized assessments of your business and circumstances to develop customized plans and policies. Most employers will need to create CCPs with 11 specific sections, including communication, hazard evaluation, return-to-work criteria, and others.
When there is a COVID-19 Case
As mentioned above, these regulations require employers to provide certain benefits in the event of a COVID-19 case in the workplace.
Businesses must notify employees who may have been exposed of the potential exposure within one business day. This must be done in a way that protects the privacy of any employee with COVID-19.
- Businesses must also notify the local Health Department once there are three or more COVID-19 cases in a 14-day period. This must be done within 48 hours.
- In the event of a COVID-19 case, testing must be provided to employees at no cost and during work hours if there is a possibility that they were exposed.
- In the event of an outbreak – when there are three or more COVID-19 cases within 14 days – testing must be provided at the outset and again one week later, and continuously/weekly afterwards for those who remain onsite.
The exclusion criteria in the Cal/OSHA regulations generally follow CDC recommendations.
- Employees exposed to a COVID-19 case must be excluded from work for 14 days from the last known exposure. (It has been reported that the CDC now recommends a self-quarantine of just 7-10 days from the last date of exposure, but California employers are advised to follow the more cautious Cal/OSHA standard.)
- Employees who are symptomatic must be excluded from work for at least 10 days, and may return to work once any fever has been resolved for at least 24 hours without the aid of medication and other symptoms are improving.
- Employees who test positive must be excluded from work for 10 days from the date the test was taken.
Exclusion Pay and Continued Benefits
The regulations require employers to “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” if the employee who is excluded from work is otherwise able and available to work. According to the Cal/OSHA FAQ page, this means that “the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments.” Exclusion pay does not apply if the employee is unable to work for reasons other than isolation necessitated by COVID symptoms or exposure, such as a reduced work schedule. It also does not apply if the if the employer “establishes the employee’s exposure was not work-related.” This may involve documentation of the employee’s statement that a friend or family member is COVID-positive or other indication of non-workplace exposure. Summary
This information is not meant to be comprehensive, but to introduce our partners to the extensive and complex requirements passed by Cal/OSHA. Please read Doug Larsen’s blog post mentioned above for more details. We encourage you to review your written safety plans in light of these new regulations (or to create them for the first time). Businesses will need to think carefully about the policies and procedures they have in place. Many companies have allowed a somewhat relaxed atmosphere among employees, and activities should be reassessed in the face of these weighty regulations. While telework arrangements may not be ideal for efficiency and collaboration, they may be preferable for the near-term in an effort to better control potential COVID-19 cases and exposure.
Sierra HR Partners is ready to guide you in the development of your unique CCPs and discuss your other questions related to the new requirements. In some circumstances, legal guidance may be necessary. We know this information feels extremely heavy, but rest assured we will be here to help.