New COVID-19 Emergency Regulation in Effect for California Employers Requires Detailed and Comprehensive COVID-19 Prevention Program

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The California Office of Administrative Law has approved a new COVID-19 emergency regulation. The new rule is now in effect and will likely be applicable to all employers.

A November 30, 2020 press release from the California Department of Industrial Relations explained that the new emergency regulation (or Emergency Temporary Standards (ETS)) applies to most workers in the state.

The new regulation requires employers to create and implement a comprehensive written COVID-19 Prevention Program. This written program must include the following:

  • A communication plan for employees about the employer’s COVID-19 prevention procedures;
  • Methods to identify, evaluate, and correct COVID-19 hazards;
  • Physical distancing of at least six feet unless it’s not possible;
  • The use of masks;
  • The use of engineering controls, administrative controls, and personal protective equipment (PPE) as required to reduce transmission risk;
  • Procedures to investigate and respond to COVID-19 cases in the workplace;
  • COVID-19 training for employees;
  • Testing for employees who are exposed to a person with COVID-19, and in the case of multiple infections or a major outbreak, implementation of regular workplace testing for employees in the exposed work areas (at no cost to the employees during their work hours);
  • Exclusion of COVID-19 cases and exposed employees from the workplace until they’re no longer an infection risk; and
  • Record retention of COVID-19 cases and the reporting of serious illnesses and multiple cases to Cal/OSHA and the local health department, as required.

As far as record-keeping, employers must maintain a record of and track all COVID-19 cases but keep all employee medical information confidential.

When there’s a COVID-19-related serious illness (e.g., COVID-19 illness requiring inpatient hospitalization) or an employee dies, the employer must report this immediately to the nearest Cal/OSHA enforcement district office.

What Employers are Covered?

The California COVID-19 emergency temporary standard applies to all employers, employees, and to all places of employment. There are three exceptions:

  1. Workplaces where there’s just a single employee who doesn’t have contact with other people;
  2. Employees who are working from home; and
  3. Employees who are covered by the Aerosol Transmissible Diseases regulation (CCR § 5199).

The new regulation applies only when the employees work at the workplace or are exposed at work—not when they’re working from home.

The ETS also requires employers to contact the local health department immediately but no later than 48 hours after learning of three or more COVID-19 cases to get guidance on preventing the further spread of COVID-19 within their workplace.

Employers must follow the requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).

Any complaints concerning workplace safety and health hazards can be filed confidentially at a Cal/OSHA district office.

Cal/OSHA says it will hold a stakeholder meeting later in December that will include industry and labor representatives. They will review the requirements of the emergency regulation. Stakeholders will have the opportunity to provide feedback and recommend updates.

Takeaway

Employers who don’t fall under one of the three exceptions are required to:

  • Create, implement, and maintain an effective written COVID-19 Prevention Program;
  • Provide employee training on COVID-19;
  • Offer testing to an employee at no cost and during working hours in the event of a potential COVID-19 work-related exposure; and
  • Keep all personal health information confidential.

Each of the components of the required employer plan has detailed requirements which also have substantial notification, reporting, testing, and safety requirements.

For help with the ETS, contact Danielle G. Eanet or (310) 997-4185. We can help your business develop an effective written COVID-19 Prevention Program, as well as policies and procedures that take into account the new emergency regulation.

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