Cal/OSHA promptly published a "Frequently Asked Questions" document ("FAQs"), a one-page summary of the ETS, and a Model Prevention Plan. These documents shed additional light on the ETS and how it might be enforced.
Below is an overview of the key takeaways from the new ETS and subsequent Cal/OSHA publications.
Basic Elements of the COVID-19 Prevention Program
The central feature of the ETS is the requirement that all employers implement a written COVID-19 prevention plan. At a high level, the prevention plan must include the following:
Closer Look: Training Requirements
The ETS requires employers to provide training and information on the following topics:
Closer Look: Investigation of COVID-19 Cases and Notification of Exposure
The ETS contains strict requirements for investigating COVID-19 cases in the workplace. Employers must determine the day and time the COVID-19 positive individual was last present and, to the extent possible, the date of the positive diagnosis or appearance of symptoms. Employers must determine which employees may have had a COVID-19 exposure by evaluating the activities of the COVID-19 case and all locations in the workplace the individual visited during the "high-risk exposure period." The ETS defines the "high-risk exposure period" as either (1) from two days before they first develop symptoms until 10 days after the symptoms have first appeared, and 24 hours have passed with no fever, or (2) from two days before until ten days after the specimen for the individual's first positive test for COVID-19 was collected.
Within one business day, the employer must notify all employees who may have had COVID-19 exposure (and any authorized representatives, such as their union), as well as any independent contractors or other employers present at the workplace during the high-risk exposure period.manbext网页版Importantly, the notice must not reveal the identity of the employee with COVID-19. The FAQs clarify that notification is required only to employees who were potentially exposed by being within 6 feet of a COVID-19 case for at least 15 minutes over a 24-hour period during the high-risk exposure period.
Employers also must offer the potentially exposed employees free testing during working hours, and the FAQs confirm that the time an employee spends being tested (including during outbreaks as described below) is compensable work time. Employers must also provide these employees with information on benefits to which the employee may be entitled (such as workers' compensation, paid sick leave, leave under the federal Families First Coronavirus Response Act, company leave benefits, or benefits under a collective bargaining agreement).
Closer Look: Exclusion of COVID-19 Cases and Return to Work
The ETS requires employers to exclude employees with COVID-19 until they meet specified return to work criteria. Furthermore, all exposed employees must be excluded for at least 14 days after the last known exposure to a COVID-19 case. However, if permitted by a local health department, an employee may be temporarily reassigned to work where they do not have contact with other persons until they meet the return to work criteria. A negative test result cannot be required as a condition of returning to work.
The ETS also contains an exemption from the exclusion requirements for circumstances in which "removal of an employee would create undue risk to a community's health and safety," provided this does not violate a local or state health order for isolation or quarantine.The employer must request such an exemption from Cal/OSHA, and if granted, the employer must implement effective additional controls, including isolation of the employee or use of respiratory protection.
The ETS specifies that COVID-19 cases with symptoms may not return to work until: (1) at least 24 hours have passed since a fever of 100.4 or higher has resolved without use of fever-reducing medications, (2) symptoms have improved, and (3) at least 10 days have passed since symptoms first appeared. COVID-19 cases who tested positive but never developed symptoms may not return until a minimum of 10 days have passed since the specimen collection date of their first positive COVID-19 test.
For employees excluded from work but who are otherwise able and available to work, the employer is required to continue and maintain the employee's earnings, seniority, and all other rights and benefits.This does not apply, however, to any period of time when the employee is unable to work for reasons other than protecting others at the workplace from possible COVID-19 transmission, or when the employer can demonstrate that the exposure was not work related.
Multiple COVID-19 Infections and Outbreaks
If a local health department identifies a place of employment as the location of a COVID-19 outbreak, or when there are three or more cases in an "exposed workplace" within a 14-day period, the ETS requires employers to provide free COVID-19 testing during working hours to all employees. At a minimum, all employees must receive an initial test and a follow-up test one week later. The employer must also provide continuous testing at least once per week until there are no new cases in a 14-day period. The FAQs explain that the testing requirement for outbreaks triggered by three or more cases is not based on three or more cases in the "entire building," but rather in the "exposed workplace." The FAQs further clarify that areas where masked workers momentarily pass through the same space without interacting or congregating are not part of the "exposed workplace," and that the "exposed workplace" only includes "the areas of the building where the COVID-19 cases were present during the ‘high-risk exposure period.'"
In the event of a COVID-19 outbreak, the employer is required to notify the local health department immediately, but no later than 48 hours after the employer knows, or should have known, of three or more COVID-19 cases within a 14-day period. Additionally, the employer must immediately investigate and determine the possible workplace-related factors that contributed to the outbreak.
Major COVID-19 Outbreaks
The ETS defines a "major" COVID-19 outbreak as 20 or more COVID-19 cases in an exposed workplace over a 14-day period. In the event of a major outbreak, employers must provide testing twice per week, exclude all COVID-19 cases, investigate workplace illnesses, and take steps to eliminate any COVID-19 hazards. Employers are also required to report major outbreaks to the local health department within 48 hours. Employers must comply with the major outbreak requirements under the ETS standards until no new COVID-19 cases are detected in the workplace for a 14-day period.
COVID-19 Prevention in Employer-Provided Housing and Transportation
The ETS requires that employer-provided housing allow for six feet of physical distancing, including appropriately spacing beds to allow for six foot spacing in all directions. Employers also must ensure that housing units, kitchens, bathrooms, and common areas are disinfected and cleaned at least once per day, maximize outdoor airflow and increase air filtration efficiency, provide face coverings and COVID-19 testing, and isolate exposed residents.manbext网页版These standards apply to all housing, including hotels and motels, but do not apply to housing provided for emergency response purposes.
The ETS also sets out requirements for employer-provided transportation. Employers must screen employees prior to boarding, separate employees by at least three feet in all directions in the vehicle, provide face masks and hand sanitizer and enforce their usage, and clean the vehicle's high-contact surfaces before each trip. Additionally, vehicle windows must be kept open, with limited exceptions for hot and cold weather, and the employer must ensure that the ventilation system maximizes outdoor air. The employer-provided transportation standards do not apply to transportation necessary for emergency response, or when the driver and all passengers are from the same household outside of work.
Looking Ahead
Because the ETS standards are now in effect, employers will need to immediately review and update their COVID-19 protocols to ensure compliance!万博体育app手机登录Cal/OSHA可能向Cal/OSHA投诉和/或对雇主实施ETS规定措施的挑战时,Cal/OSHA可能在未来数周发布更多指导帮助雇主更好地了解并遵守其培训、通知、雇员排除、测试和其他义务
EPA and the CDC on April 29 provided updated guidance on steps employers and businesses should take to disinfect their premises, as part of the "Guidelines for Opening Up America Again." This provides important guidance for businesses to protect employees and members of the public, and to minimize potential liability arising out of coronavirus exposure in the workplace.
Most notably, the guidance urges businesses to develop plans setting forth "a cleaning and disinfecting strategy after reopening." Such plans should include:
Notably, EPA and the CDC have advised that surfaces "frequently touched by multiple people, such as door handles, desks, phones, light switches, and faucets, should be cleaned and disinfected at least daily." Other surfaces with more frequent contact, "such as shopping carts and point of sale keypads," should be disinfected before "each use."
While these guidelines are not mandatory, employers and businesses that do not follow them run the risk of potentially violating the Occupational Safety and Health Act's "General Duty" clause, which requires employers to provide a place of employment "free from recognized hazards that are causing or are likely to cause death or serious physical harm to … employees." 29 U.S.C.万博体育app手机登录§ 654(a)(1). Failure to disinfect in conformity with the guidance could also potentially give rise to other third-party claims that the business did not take sufficient steps to disinfect its premises. For example, family members who contract COVID-19 from an employee who is exposed at work may claim that the employer also owes them a duty of care, set in part by the guidance, and that failure to adhere to the guidance injured them. Or regular customers who visit the site but have otherwise isolated at home might bring a premises liability claim, arguing that inadequate disinfection that does not meet the standards set forth in the guidance caused them to contract COVID-19.