On November 19, 2020, pursuant to emergency rulemaking authority, the California Occupational Safety and Health Standards Board (“OSHSB”) adopted temporary regulations regarding measures that all employers must undertake in order to prevent the spread of COVID-19 in the workplace (“emergency regulations”).
The emergency regulations take effect today, November 30, 2020, and apply to all employers and places of employment, with very limited exceptions (such as businesses where all employees work remotely, or only one employee is employed who does not have contact with others). Therefore, schools and colleges must take immediate action to ensure that their policies and practices conform to and comply with the new regulations. Most significantly, employers must prepare, implement, and maintain a written COVID-19 Prevention Program (“CPP”), as described below.
The emergency regulations supplement general and industry-specific guidance that the Division of Occupational Safety and Health (“Cal/OSHA”) has provided since the beginning of the present public health emergency.
COVID-19 Prevention Program
School and community college districts are already required to implement many of the protocols in the COVID-19 Prevention Program, such as screening employees for COVID-19 symptoms, adopting physical distancing measures, requiring face coverings, cleaning and disinfecting procedures, and communicating to employees when there has been possible exposure to COVID-19 in the workplace. However, the regulations require that the CPP include and address many other very specific issues.
In summary, the CPP must address each of the following eleven (11) subjects:
1) System for communicating to employees about the following subjects related to COVID-19:
(a) the symptoms associated with COVID-19;
(b) possible exposures;
(c) potential hazards related to COVID-19:
(d) the policies and procedures for providing COVID-19 related accommodations;
(e) information about COVID-19 testing.
2) Identification and evaluation of COVID-19 related hazards, including developing and implementing a system that provides for the following:
- screening employees for symptoms associated with COVID-19;
- responding to employees who present symptoms associated with COVID-19;
- responding to individuals and employees who are present at the workplace who are positive for COVID-19; conducting an assessment of potential workplace hazards, such as areas where people congregate.
3) Investigating and responding to COVID-19 cases in the workplace, including developing a procedure that provides for the following:
- the investigation of COVID-19 cases;
- the determination of important information about possible workplace exposures related to the COVID-19 case;
- the provision within one (1) business day of notice to employees who may have been exposed to the virus that causes COVID-19 (as required by Assembly Bill 685);
- offer free COVID-19 testing to all employees who had potential exposure to the virus; and
- the preservation and protection of confidential medical information pursuant to the Confidentiality of Medical Information Act (“CMIA”).
4) Correcting COVID-19 related hazards, including implementing policies and procedures to timely address unsafe or unhealthy workplace conditions.
5) Training of and instruction for employees, including on the following subjects:
(a) the symptoms associated with COVID-19;
(b) the school’s COVID-19 prevention policies and procedures;
(c) COVID-19 related benefits, including leaves rights;
(d) information about the transmission of the virus that causes COVID-19;
(e) information about physical distancing and the benefits of physical distancing;
(f) information about face coverings and the benefits of face coverings; and
(g) information about hand washing and hand hygiene and the benefits of hand washing and hand hygiene.
6) Physical distancing requirements and procedures to ensure that employees remain at least six (6) feet apart from one another, if possible.
7) Face covering requirements and the availability of face coverings for employees.
8) Site-specific engineering and administrative controls and procedures for the provision of personal protective equipment (“PPE”), including, but not limited to, the following:
(a) installing partitions between work stations where it is not possible to maintain the physical distancing requirement;
(b) increasing the supply of fresh air where possible;
(c) implementing cleaning and disinfecting procedures;
(d) evaluating the availability and adequacy of handwashing locations; and
(e) evaluating the need for additional PPE.
9) Reporting, recordkeeping, and providing access to such reports and records, including the following:
- reporting cases of COVID-19 to the local health department;
- reporting disabling work-related COVID-19 illnesses to Cal/OSHA;
- maintaining records of the steps that the school undertook to implement the CPP;
- providing employees access to the CPP;
- recording and tracking all COVID-19 cases with identifying information about the employee; and
- providing employees access to the records of COVID-19 cases with identifying information removed.
10) Removal from worksites and facilities individuals who have COVID-19 or were exposed to the virus that causes COVID-19. 11) Minimum criteria to return to work for employees who have COVID-19.
The descriptions provided above summarize the information that schools must provide for in their CCPs, but are not a comprehensive summation of the regulatory requirements.
Significant Changes in the Law
Schools and colleges should take note the following regulatory requirements, which are likely to be new for most districts:
- Districts must offer COVID-19 testing at no cost to employees, during their working hours, to all employees who had a potential COVID-19 exposure in the workplace. The regulations define potential COVID-19 exposure as being within six (6) feet of a positive COVID-19 case (with or without a face covering) for a cumulative total of 15 minutes or greater in any 24 hour period within or overlapping with the “high-risk exposure period.” The regulations define the “high-risk exposure period” as the following:
- For persons who develop COVID-19 symptoms, the two (2) days before the symptoms develop until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
- For persons who test positive for COVID-19 and never develop symptoms: from two (2) days before until 10 days after the specimen for their first positive test was collected.
- Districts must continue to provide compensation to employees who may not report to work because they have COVID-19 or are under an isolation order issued by a local or state health official. While this requirement effectively constitutes a new leave benefit, the regulations expressly provide that employers may use an employee’s sick leave for this purpose. The regulations do not address whether employers may require employees to use Emergency Paid Sick Leave, as provided for by the Families First Coronavirus Response Act (“FFCRA”).
- Districts may not require a negative COVID-19 test for an employee to return to work. However, the regulations do not prohibit schools from testing employees at regular intervals for COVID-19 consistent with California Department of Public Heath recommendations.
Protocol Where There are COVID-19 Outbreaks and Major Outbreaks
While not required as part of the CPP, the emergency regulations separately require that employers implement the following protocols in the event the there is a COVID-19 “outbreak” in the workplace, consisting of three (3) or more positive cases in a 14-day period:
- Provide testing (immediately and one (1) week later) at no-cost to all employees who were present at the workplace during the outbreak period;
- Require that all employees with COVID-19 and who were exposed to the virus that causes COVID-19 do not report to work for the requisite period of time;
- Investigate the exposure, review the district’s prevention and outbreak control policies, and take corrective action as needed;
- Document the district’s investigation of the exposure, policy review, and any corrective actions taken; and
- Notify the local health department within 48 hours after knowledge of the outbreak.
The regulations also require employers implement additional protocols if there is an outbreak of 20 or more COVID-19 cases within a 30-day period until there are no new cases for a 14-day period, including conducting twice-weekly testing and evaluating whether respiratory protection should be required and whether the employer’s operations should cease.
Given that the emergency regulations took effect today, November 30, employers must immediately adopt and implement a CPP that complies with the regulations. Liebert Cassidy Whitmore drafted a template CPP that school and community college districts may adopt and customize in order to establish compliance with the requirements in the emergency regulation. To accompany the template, Liebert Cassidy Whitmore also drafted a guide that identifies specific obligations under the regulation so that schools may more easily identify existing district policies and practices that require modification.
Liebert Cassidy Whitmore is making the CPP template and associated guide available for purchase for consortium members and non-consortium members.
Liebert Cassidy Whitmore attorneys are available to assist schools that have any questions or concerns about the CPP or other aspects of the emergency regulations.
 The Office of Administrative Law (“OAL”) is expected to approve the regulations after the requisite 10 day review period.