After 8+ hours of public testimony and discussion yesterday, the Cal/OSHA Standards Board unanimously adopted the COVID-19 Prevention Emergency Rule requiring, among other things, employers to implement and maintain a written COVID-19 Prevention Program, provide employees with PPE, and offer COVID-19 testing at no cost to all employees (during working hours) who had potential COVID-19 exposure in the workplace.
Despite extensive comments from the employer community (including CTA) about the infeasibility of the rule as drafted, the Board adopted the regulatory text without changes. The new standard is modeled after the Industry-Specific Guidance and Employer Playbook released earlier this year and incorporates requirements from laws passed this year, such as COVID-19 paid sick leave and the employee notification requirements of AB 685.
The standard applies to all employees and places of employment except: 1) places of employment with one employee who does not have contact with anyone; 2) employees working from home; and 3) employees covered under the Aerosol Transmissible Diseases standard.
Primary employer obligations under the COVID-19 rule include:
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Implement and Maintain a COVID-19 Prevention Program with a Training Component - This is the most detailed and prescriptive requirement under the rule. CTA is in the process of updating its COVID-19 Workplace Safety Guide & Training Manual to ensure compliance with the standard. Once updated, CTA will email membership the link to order a copy of the Cal/OSHA compliant Guide. Members who have already purchased the Guide from CTA will receive a complimentary revised copy.
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Provide Employees with PPE - Requires employers provide employees with face coverings, goggles, face shields, gloves and other PPE as needed to prevent exposure to COVID-19; to install cleanable solid partitions at fixed sites where it is not possible to maintain physical distancing at all times; and to "maximize the quantity of outside air to the extent feasible."
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Offer Free COVID-19 Testing - Requires employers provide COVID-19 testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace and provide them with the information on COVID-19 related benefits.
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Employee Exposure Notification - Employers must give written notice within one business day to employees and contractors who may have been exposed to COVID-19 in the workplace. The notification must include: 1) notice of exposure; 2) information on COVID-19 related leave, benefits and testing; and 3) information about the company's disinfection & safety protocols/COVID-19 Prevention Program. Employers must report COVID-19 cases on their Form 300 and report outbreaks (3 or more laboratory-confirmed cases within a 14-day window) to their local health department. More stringent measure are required for major outbreaks (20 or more cases within a 30-day window).
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Leave & Earnings Obligations - Requires employers exclude COVID-19 cases from the workplace until return to work criteria is met and exclude employees with COVID-19 exposure from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case. For employees excluded from work under this requirement and otherwise able and available to work, employers 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. Employers may use employer-provided employee sick leave benefits for this purpose and consider benefit payments from public sources in determining how to maintain earnings, rights and benefits, where permitted by law and when not covered by workers’ compensation.
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Requirements for Employer-Provided Housing & Employer-Provided Transportation to/from Workplace - Requires employers implement specific physical distancing protocol and disinfection/cleaning practices for employer-provided housing and employer-provided transportation to/from the workplace.
The COVID-19 Prevention Emergency Rule now moves to the Office of Administrative Law (OAL) for review and, upon OAL's approval, the rule goes into effect and becomes enforceable. The anticipated implementation deadline is November 29, 2020. The Standards Board acknowledged that implementation will be "no small task", stating that the regulation "does have some complexity," and they would "take that into account;" which suggests lighter enforcement just after the emergency regulation goes into effect, but there is no guarantee of such enforcement discretion or how long it might continue. Cal/OSHA intends to prepare FAQs and other informational resources to try to assist with compliance.
As mentioned above, CTA is updating its COVID-19 Workplace Safety Guide & Training Manual to ensure compliance with the emergency rule and will soon be circulating a revised version for purchase. Members who have already purchased the Guide from CTA will receive a complimentary revised copy.
As a reminder, CTA still has complimentary PPE available, which you can order here.
