As if California businesses didn’t already have enough to juggle amidst a global pandemic, employers were surprised to see the California Division of Occupational Safety and Health (Cal/OSHA) adopt an emergency temporary standard for COVID-19 testing, documenting, and reporting requirements. Just as concerning, employers were given little notice, as the new standard went into effect November 30, 2020, almost immediately after its adoption. Among the laundry list of requirements for employers, the new standard mandates that employees who are excluded from work for COVID-19 related reasons must continue to receive their earnings, seniority, benefits, and right to reinstatement.
For those businesses looking to avoid having to comply with the new standard, they may be out of luck, as it applies to all employers, employees, and places of employment, with limited exceptions. Specifically, the new standard doesn’t apply to workplaces where there is only one employee who does not have contact with other people; employees who work from home; or businesses such as hospitals, skilled nursing facilities, clinics, medical offices, other qualifying health care facilities or businesses (those subject to the Aerosol Transmissible Diseases standard).
While listing the entirety of the guidelines under the new standard would be too lengthy for the purposes of this post, of particular note are the following requirements employers must follow:
- Offer testing to an employee at no cost and during working hours in the event of a potential COVID-19 work-related exposure
- In a non-outbreak setting, where employers learn that one or more of their employees had a COVID-19 exposure at the workplace:
- Notify all employees and their 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 (time an employee spends being tested is considered compensable hours worked)
- In an outbreak setting:
- Notify all employees and their 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 (time an employee spends being tested is considered compensable hours worked)
- Immediately provide testing to all employees in the exposed workplace and exclude positive cases and exposures from work; repeat the testing one week later
- Continue testing employees at least weekly until the workplace no longer qualifies as an outbreak
- Identify and evaluate COVID-19 hazards and potential exposures in the workplace
- Develop procedures to investigate and respond to COVID-19 cases in the workplace and subsequently investigate such cases, when required
- Require at least six feet of physical distancing between employees
- Provide face coverings to employees at no cost and require they wear them (unless exempt)
- Implement engineering controls, administrative controls, and use of PPE
- Train employees on the employer’s COVID-19 prevention procedures
- Maintain records of cases and report serious illnesses and multiple cases to Cal/OSHA and local health department
Notwithstanding the extensive new standard, where employers were particularly taken aback was the continuing requirements for pay and benefits for exposed employees. Specifically, if the employee is able and available to work, the employer must continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job. While 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, this is still a significant burden for employers, particularly small and medium sized business.
Reacting to the new standard is obviously of critical importance, but California employers also need to be proactive by developing and implementing a written COVID-19 Prevention Program (or ensure its elements are included in an existing Injury and Illness Prevention Program) and have such plan available to employees. Additionally, employers should continue to monitor the governor’s Executive Orders, which may also affect the new standard. Lastly, businesses shouldn’t forget about the previously enacted rules under AB 685, which go into effect January 1, 2021.
