Seyfarth Synopsis: California Department of Industrial Relations’ (DIR) Occupational Safety and Health Standards Board adopted a California OSHA emergency temporary standard regarding COVID-19. The emergency temporary standard will go into effect after it is reviewed and approved by the California Office of Administrative Law, which may be as soon as November 29, 2020. It brings with it new documentation, COVID-19 testing, wage payment, and reporting obligations affecting most companies.
If you’ve been following our blogs, you know that Cal/OSHA’s draft emergency standard was the topic of the Standards Board’s November 19, 2020 meeting. The meeting, which began at 10 a.m. PST and went well into the evening, concluded with the Board unanimously voting to approve the COVID-19 Emergency Temporary Standard (ETS) as drafted by Cal/OSHA, despite its many flaws. The Board acknowledged that the standard has flaws, and consequently requested that Cal/OSHA (a.k.a. the Division of Occupational Safety and Health) convene an Advisory Committee meeting in December to work on improvements with stakeholders. Representatives from labor and management, and other occupational safety and health professionals, will be invited to participate on the Committee. But in the meantime, employers can expect the ETS to become effective as soon as November 29, 2020, depending on when the Office of Administrative Law (OAL) approves the standard and submits it to the Secretary of State. The public will have an opportunity to comment on the standard before the OAL makes a decision, but the general belief is that OAL will also approve the standard as written.
Concerns about the ETS are numerous. Generally, the regulation has been criticized as redundant of already existing state and local requirements, as well as Cal/OSHA’s Injury Illness Prevention Program (“IIPP”) standard, which the Division has been using throughout the pandemic to enforce COVID-19 safety and health at workplaces throughout California. In fact, the Standard Board’s own staff recommended against an ETS for that very reason. Comments from Board members during the November 19, 2020, meeting implicitly confirmed, however, the tremendous pressure felt by the Board in the face of a public health calamity. Despite the near certainty that the ETS will add complexity and confusion to an already difficult regulatory landscape with, at best, minimal improvement to workplace safety and health, the Board wants a clear conscience.
What Are The Biggest Developments For Our Company To Watch Out For?
The ETS will not apply to employees that are already covered under the Cal/OSHA Aerosol Transmissible Diseases standard, employees working from home, and single-employee employers who do not have contact with others.
For employers not excepted, some of the provisions of the ETS that are already causing heartburn and confusion are:
- Whenever there has been a COVID-19 case at a workplace, employers must “offer COVID-19 testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace.”
- The ETS notification provisions that apply within one business day when a COVID-19 case has been identified in the workplace are not the same as what’s required under AB 685 (which goes into effect January 1, 2021), addressed in our blog here. For example, AB 685 requires the notice to be written and the ETS does not. AB 685 requires notification to “employers of subcontracted employees,” whereas the ETS also requires notification to independent contractors who were present at the workplace. Other inconsistencies exist too, seemingly just semantic. For example AB 685 refers to a COVID-19 “infectious period” whereas the ETS refers to a “high-risk exposure period,” both apparently in reference to the relevant time period employers must use when evaluating who may have had a COVID-19 exposure. These periods are defined essentially the same under AB 685 and the ETS.
- Employers will be required to track and record all COVID-19 cases with the employee name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. The information must be made available to employees and authorized employee representatives (with personal identifying information removed). It’s foreseeable that employees and unions may use this information to question employer’s analysis of whether certain COVID-19 infections are “work-related.”
- Employers will be required to “evaluate the need for respiratory protection in accordance with [the Cal/OSHA Respiratory Protection Standard, 8 CCR 5144] when the physical distancing requirements…are not feasible or are not maintained.” The physical distancing requirement is that employees must be separated by 6 feet, and although there are exceptions for momentary or incidental exposures while employees are moving around and where employers can demonstrate that six feet of separation is not “possible,” the ETS has the potential to bring many employers under the Respiratory Protection Standard. Notably, and quite concerning, is Cal/OSHA’s use of “possible,” which is seemingly more difficult to avoid than “feasible.”
- In what has been criticized as a staggering Cal/OSHA over-reach, the ETS mandates that when employees are excluded from work for certain COVID-19 related reasons (i.e. having, or having been exposed to COVID-19), but remain “otherwise able and available to work, employers shall 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.” While some current paid sick leave laws, like the California Supplemental Paid Sick Leave law (which we blogged about here), provide that an employee may choose to use up to 80 hours of paid sick time to replace earnings while they are kept out of work due to concerns about spreading COVID-19, the new Cal/OSHA ETS mandates that employers pay for this time and provides no cap on the amount of earnings that must be continued if employees are excluded from work. This eliminates the cap on paid time set forth in Labor Code 248 and 248.1, as well as the 500 employee threshold imposed by the statewide law. The only bright spots for employers are that the ETS language about maintaining earnings (1) does not apply where the employer demonstrates the COVID-19 exposure is not work-related and (2) it allows benefit payments from public sources (e.g., unemployment benefits) to be considered in maintaining earnings.
- Despite already existing requirements for employers when there are COVID-19 workplace “outbreaks,” the ETS includes additional testing, investigation, correction, and notification requirements, and creates two categories for when these requirements attach: “Multiple COVID-19 Infections and COVID-19 Outbreaks” and “Major COVID-19 Outbreaks.”
- For employers that provide housing and transportation to employees, there are special requirements such as ensuring housing units are cleaned at least once a day, providing 6 feet of distancing in dormitories, and providing private spaces for exposed employees to isolate.
- The proposed standard also includes various other requirements, such as creation of a written COVID-19 Prevention Program, which appears to be nearly duplicative of an IIPP.
What Happens If Our Company Isn’t In Compliance With The ETS?
Non-compliance with the new ETS can result in a fine in accordance with the Division’s penalty structure. Different penalties attach to the different classifications of citations, which are Regulatory, General, Serious, Repeat, and Willful. Regulatory penalties typically attach to posting and recordkeeping requirements, General is typically for violations having some non-serious relationship safety and health, and Serious may attach if there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.
Given the seriousness of COVID-19, many if not most, alleged violations in connection with COVID-19 would likely be classified as Serious. If any violation under any classification is found by Cal/OSHA to be substantially similar to a violation issued in the five years prior, it can be classified as Repeat. And a Willful citation is issued if Cal/OSHA determines the employer either knew what it was doing was a violation, or was aware of an unsafe condition, and made no reasonable effort to eliminate it.
Penalty amounts run the gamut, with the maximum penalty for Regulatory or General being $13,277, the maximum for Serious being $25,000, and the maximum for Repeat or Willful being $132,765.
Is There Any Light At The End Of The Tunnel?
If reading this is causing you to sweat, perhaps find comfort in words Cal/OSHA’s Chief and Deputy Chief offered during the Board meeting. These top officials said there “might” be delayed enforcement to allow employers to come into compliance. They also assured the regulated community that Cal/OSHA would publish a model COVID-19 Prevention Program, FAQs, and guidance, though they made no indication of when this might occur. And on the issue of wage continuation, they assured employers that the Division’s counsel confirmed this was within their authority.
This is a rapidly developing area that we are closely tracking. We will update our readers as additional guidance or legal challenges develop with the new ETS. For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or COVID-19 Task Force Team.