Communications / Technical Issues / Technical Issue

COVID-19 Prevention Standards — Proposed Emergency Regulations

Date: 11/16/2020

The Occupational Safety and Health Standards Board (OSHSB), the standard-setting agency within Cal/OSHA, has filed a Notice of Finding of Emergency and Notice of Proposed Emergency Action, seeking to regulate COVID-19 prevention in the workplace by adding sections §§3205, 3205.1, 3205.2, 3205.3, and 3205.4 to existing General Industry Safety Orders regulations. A WebEx teleconference, accessible to the public, has been scheduled for this Thursday, (November 19, 2020) at 10:00 a.m. At the meeting, the Board intends to review and vote on the proposed text of the emergency regulations, which it anticipates will be approved by the Office of Administrative Law by the end of the month. The meeting agenda with access instructions and all related documents, including the 21-page text of the proposed regulations, are posted at: https://www.dir.ca.gov/OSHSB/COVID-19-Prevention-Emergency.html.

Although these regulations incorporate some basic provisions set forth in SB 1159 and AB 685 (e.g., notification requirements and timeframes), they are far more complex and may be perceived as onerous in regard to the duties and burdens imposed on California private and self-insured employers. Ultimately, these regulations, which appear likely to be approved as submitted, may create conflicts and confusion with other COVID-19 legislative provisions. For example, where AB 685[1] requires employers to provide all employees and sub-contracted employees written notice when the employer or representative has received “a notice of potential exposure to COVID-19,” these regulations impose an affirmative duty of employer investigation and identification of potential exposure which includes, but is not limited to:

permission for the employee and employee-authorized representative to participate in the identification and evaluation of COVID-19 hazards in the workplace;
implementation of a process to screen and respond to employees with COVID-19 symptoms;
development of policies and procedures to respond immediately to employees defined as a “COVID-case” (similar to a “qualifying individual” per §6409.6) to reduce the risk of transmission in the workplace; and
employer-required inspection of “all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards,” including identification of times and places when employees congregate or may come in contact with one another, and treating “all persons, regardless of symptoms or negative COVID-19 test results, as potentially infectious.”

Similarly, and consistent with AB 685[2], the employer must notify the local health department within 48 hours of notice of a COVID-19 “outbreak.” However, these regulations also require employers to immediately report any COVID-related serious illness or death of “an employee occurring in a place of

employment or in connection with any employment”[3] to Cal/OSHA.

Other provisions within the proposed regulations would require that employers:

Establish, implement, and maintain a detailed written COVID-19 Prevention Program which can be integrated into their Injury and Illness Prevention Program or be a stand-alone program, and upon request, make it available to employees, authorized employee representatives, and Cal/OSHA.
Offer employees who may have been exposed to COVID-19 (when there has been a COVID-19 case at their place of employment) a free COVID-19 test during working hours. Employers will be required to provide initial and subsequent tests to all employees who were in the exposed workplace during the period of an outbreak that involved 3 or more employees. When there are 20 or more COVID-19 cases in an exposed workplace in a 30-day period, employers must provide free testing to all employees remaining at the worksite at least twice a week during this period.
Provide all employees with training and instruction, including but not limited to, information about COVID-19-related benefits; employer policies and procedures to protect employees from COVID-19 hazards; social distancing; mask wearing; and how the disease can be spread through the air and on surfaces.[4]
Furnish personal protective equipment to employees as needed, including masks, goggles, face shields, solid partitions at fixed workstations, respirators, etc.
Ensure that employees identified as COVID-19 cases are excluded from the workplace (including those employees ordered to quarantine or isolate) until return-to-work protocols are met.[5] If these employees are otherwise “able and available to work,” the employer must guarantee continuation and maintenance of their earnings, seniority, and all other employment rights and benefits,” using employer-provided sick leave or other benefits from other sources.
Extend COVID-19 protection to employees in employer-provided housing[6] and employer-provided transportation to and from work.[7]

Stakeholders who wish to comment at the meeting must submit their request to OSHSB@dir.ca.gov and will be added to the public comment queue at the November 19 Board meeting. These comments will not be forward to OAL. It is safe to assume that these proposed regulations will be filed with the Secretary of State (SOS) 10 days after posting of submission by Cal/OSHA and will remain in effect for 180 days.

In addition to the proposed regulation, OSHSB has already approved the establishment of an advisory committee to work after the regulation is adopted, and instructed Cal/OSHA to report back to the Board on possible updates or revisions to the regulation within four months of the effective date of its passage.

JS/by

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[1] §6409.6(a)

[2] §6409.6(b)

[3] §3205(c)(9)(B) – “serious illness or death is defined in Cal/OSHA regulations, section §330(h) as, ““Serious injury or illness” means any injury or illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing, or in which an employee suffers an amputation, the loss of an eye, or any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by an accident on a public street or highway, unless the accident occurred in a construction zone.

[4] The training requirement appears to be in addition to written notification to employees under AB 685 and these proposed regulations.

[5] §3205(c)(11)

[6] §3205.3

[7] §3205.4`