New Emergency Regulations With Covid-19 Paid Leave Benefits Enacted By Cal OSHA
On November 30, 2020, Cal OSHA’s emergency temporary standards (“ETS”) related to Covid-19 went into effect.
Here are the key provisions:
1. The ETS applies to all employers and employees, except:
a) Employees working on site but alone and with no contact with others;
b) Employees when working remotely at home;
c) Employees covered under the Aerosol Transmissible Diseases standard (CCR section 5199).
2. The ETS requires employers to have a written COVID-19 Prevention Program, and to train employees on the employer’s program. Most employers have already created their safety and training programs, per county requirements. The ETS spells out the specific safety requirements in more detail, however. A sample Model COVID-19 Prevention Program is found at this link: https://www.dir.ca.gov/dosh/dosh_publications/CPP.doc. The ETS also requires, after a workplace exposure, for the employer to conduct contact tracing and an investigation to identify, evaluate and correct Covid-19 hazards.
3. Importantly, after a Covid-19 case in the work place, an employer must notify all potentially exposed employees (and their work representative) within one business day, as well as any other employer with potentially exposed workers at the site. Exposure is being within 6 feet of a COVID-19 case for a cumulative total of 15 minutes within any 24-hour period during the COVID-19 case’s “high risk exposure period.” The high-risk exposure period is:
- For COVID-19 positive employees who develop COVID-19 symptoms, from two days before they first develop symptoms 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 but never develop COVID-19 symptoms, from two days before until ten days after the specimen for their first positive test for COVID-19 was collected.
In addition, the employer must offer to all potentially exposed employees Covid-19 testing at no cost, and during working hours.This means that upon notice of a workplace Covid-19 case, the employer must immediately work with the positive employee to conduct contact tracing. Employers should also reimburse employees for mileage to workers to travel to any testing site. Hourly employees should be paid for their testing time.
4. For each employee who is excluded from work, due to either testing positive or to Covid-19 exposure, the employer must maintain the employee’s pay and benefits. This only applies if the exposure is work related, and only if the employee is able and available to work. The employer may require the employee to exhaust paid sick leave benefits first, such as those provided under workers compensation, FFCRA e-paid sick leave, and the employer’s own leave policies.
5. Employees required to quarantine are able to return to work under the following conditions:
For Covid-19 positive employees
For employees with symptoms all of these conditions must be met:
- At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
- COVID-19 symptoms have improved; and
- At least 10 days have passed since COVID-19 symptoms first appeared
For employees without symptoms, at least 10 days have passed since the COVID- 19 case’s first positive test.
For employees exposed to Covid-19
Employees with COVID-19 exposure may return to the workplace 14 days after the last known COVID-19 exposure.
Note that employees who have quarantined pursuant to the above may not be required to test negative before returning to work.
6. A work site is considered to have an outbreak if, within 14 days, three COVID-19 cases share the same “exposed workplace,”- a work location, working area, or common area used or accessed by a COVID-19 case during the high-risk period (see definition above), including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.
7. If there is an outbreak, the employer must provide testing to all employees in the exposed worksite weekly, until the workplace no longer qualifies as an outbreak.
8. Employers must report Covid-19 cases pursuant to state and local requirements. In addition, employers must report serious occupational illnesses to Cal/OSHA, consistent with existing regulations. Employers must also record all COVID-19 cases with the employee’s 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. This information, with personal identifying information removed, must be made available to all employees and their representatives.