Cal/OSHA Clarifies Emergency Temporary Standards

On Friday, January 8^th,  Cal/OSHA published an updated FAQ providing further clarification on its Emergency Temporary Standards (ETS).  Cal/OSHA added several more questions and answers which attempt to explain some of the terms in the ETS and how they apply in different situations.  Some of the major clarifications are discussed below, while the full FAQs can be found here.

• Enforcement of the ETS.  Cal/OSHA will cite but not assess any monetary penalties for violations of the ETS until February 1, 2021.  This gives employers some breathing room to ensure that their policies comply with the ETS, which became effective without any time for employers to prepare.  In considering monetary penalties Cal/OSHA will consider an employer’s good faith effort to comply with the ETS.
• Effect of Vaccine.  Cal/OSHA will address the effect of vaccinating employees on the scope of the ETS.  Until then, employers must follow all of the ETS prevention measures regardless of whether some employees are vaccinated.
• Clarifications to Testing Requirement.  The Cal/OSHA ETS require employers to provide testing at no cost to the employees when there has been a work-related exposure to an employee with COVID-19 and during the course of an outbreak.  With regard to testing, Cal/OSHA provided three clarifications. First, tests administered at a free testing site (e.g., one run by the county) are considered tests given “at no cost to employees.”  Second, the requirement that the test be offered “during [employee’s] working hours” does not mean that the test actually take place during the employee’s normal working hours. It does mean that employees must be paid for their time when testing and reimbursed for their travel expenses (mileage or public transportations costs) to and from the testing site.  Third, if an employee refuses a test offered by the employer in compliance with the ETS, the employer does not have to force the employee to be tested or terminate their employment. Additionally, while not required, the better practice is to get an employee’s declination of being testing in writing if practicable.  As a further note, to determine which employees may have had a COVID-19 exposure, Cal/OSHA states “Employers must: determine which if any employee was 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.’” 
• Threshold For An Outbreak – What is an “Exposed Workplace”.  An outbreak occurs when there are three COVID-19 cases within 14 days in an “exposed workplace” and a major outbreak occurs when there are 20 or more COVID-19 cases in a 30 day period in an “exposed workplace.” ETS has defined “exposed workplace as “any work location, working area, or common area at work used or accessed by a COVID-19 case during the high-risk period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. The exposed workplace does not include buildings or facilities not entered by a COVID-19 case.”  In an attempt to clarify this key term, Cal/OSHA added that when determining whether three COVID-19 cases have been in the same “exposed workplace” a masked COVID-19 case who simply passed through a work area or common area should not be counted. (A “COVID-19 case” is an employee who (1) has a positive COVID-19 test, (2) is subject to a COVID-19-related order to isolate issued by a local or state health official, or (3) has died due to COVID-19, in the determination of a local health department or per inclusion in the COVID-19 statistics of a county.)  For example, if all three COVID-19 cases have been in a common area, but one of the cases only passed through while wearing a face covering, an outbreak has not occurred for purposes of the ETS. Further, for employers with several non-overlapping shifts, if the facility is well ventilated and the cleaning and disinfection requirements of the ETS are met between shift changes, each shift may be considered as a separate “exposed workplace.”  Finally,  when measuring the 14 or 30 day periods for whether an outbreak has occurred, employers should look to the testing dates of each of the employees who constitute a COVID-19 case.  
• More on “Exposed Workplace.”  Cal/OSHA notes that the terms “exposed workplace” is designed to be “preventative, to initiate testing at the beginning of an outbreak in the area where workers are at risk of exposure, and to contain the outbreak to the affected area. …  Testing in the ‘exposed workplace’ is intended to balance the need to tailor testing to the areas where workers have a risk of exposure to known COVID-19 cases and the need to do that on a comprehensive basis to contain transmission and account for the possibility that transmission is already occurring.”  In some situations, the exposed workplace will be obvious.  Still, in many cases Cal/OSHA’s clarifications does not provide certainty of what constitutes the exposed workplace. We recommend consulting your legal counsel if you are faced with this scenario.
• Shortening Quarantine Period When Employee Is Exposed.  When the Cal/OSHA issued the ETS on November 30, the CDC was still recommending a 14 day quarantine for people exposed to COVID-19 who do not have symptoms of COVID-19.  The CDC has since reduced the recommended quarantine period to 10 days and Cal/OSHA has followed suit.  Additionally, with respect to healthcare, emergency response, and social services employers, employees may return to work after 7 days with a negative PCR test result collected after the fifth day of quarantine when there is a critical staffing shortage.
• Social Distancing.  If social distancing of 6 feet between employees is not possible for employees at a “fixed work location,” employers “must install cleanable solid partitions that reduce the risk of aerosol transmission (such as Plexiglas barriers).  A “fixed work location” is defined as “a workstation where a worked is assigned to work with minimal movement from that location for extended periods of time.”  Examples given by Cal/OSHA are cashiers, greeters, receptionists, workers at desks or in cubicles and food production line workers.  The size of the partitions is supposed to be “large enough to reduce the risk of aerosol transmission.”  Importantly, Cal/OSHA notes that the risk of transmission between workers is not eliminated “unless they are complete barriers.”  Cal/OSHA therefore has determined that “workers within six feet of one another are considered a close contact for determining COVID-19 exposure, regardless of partitions.”    
• Clarifications On Maintenance Of Earnings Requirement.  Cal/OSHA provided several key clarifications to the requirement that an employer must continue to pay and provide benefits to an employee excluded from work as a COVID-19 case or exposed employee when that employee is “able and available to work”  unless the employer demonstrates that the COVID-19 exposure is not work related.  First, if an employee is unable to work due to their COVID-19 symptoms, then they are not “able and available to work” and are not eligible to continue to receive their earnings and benefits.   Second, Cal/OSHA placed a loose cap on the amount of time an employee is entitled to receive their earnings by stating that if an employee cannot return to work after 14 days of quarantine, “that extended quarantine period may be an indication that the employee is not able and available to work due to illness” and thus, the employee would no longer be eligible to maintained earnings.  This does not mean that employers may cut off earnings in every instance where an employee is out for more than 14 days, so we recommend consulting your legal counsel if you are faced with this situation. Third, if an employee is receiving temporary disability or workers compensation benefits due to their illness or exposure, they are not considered “able and available to work” and thus, not entitled to earnings and benefits while excluded from the workplace. Cal/OSHA does specifically note that a COVID-19 case where the employee is asymptomatic and not receiving temporary disability benefits through workers’ compensation but is “able and available to work” except for the exclusion from the workplace and inability to work remotely, that employee should continue to receive their wages and benefits while excluded from the workplace.
• Importance of Determining Whether Exposure Was Work-Related.  As in the case of workers’ compensation determinations, there is a rebuttable presumption that exposure to the virus for employees with COVID-19 related illnesses was work-related.  Cal/OSHA directs that rebutting this presumption “involve an employer conducting comparable investigations and producing comparable evidence to show it is more likely than not that an employee’s COVID-19 exposure did not occur in the workplace.”  While not part of the Cal/OSHA guidance, if an employee admits that they contracted the virus outside of work the employer should confirm that representation in writing.  We also continue to advise employers to coordinate with their workers’ compensation carrier on the issue of work-related exposure and associated concerns.  
• Ventilation.  Cal/OSHA considered enhanced ventilation to be very useful tool in reducing the spread of COVID-19 in the workplace, informing employers to “maximize the amount of outside air to the extent feasible” unless the outside air is of poor quality otherwise a hazard to employees.  Cal/OSHA further states that employer renting the building or workspace “should request that the building operator assist with compliance with the emergency regulation.”

Given the breadth of clarifications provided, Cal/OSHA understood that many employers were frustrated with the current ETS.   We are hopeful that the updated FAQs provide the guidance necessary to navigate the majority of employers concerns, however, if you still have any questions do not hesitate to reach out to us.

Update on Los Angeles Quarantine Order for Travelers

Our last update discussed the new quarantine order for residents of Los Angeles County.  To further clarify, the quarantine order applies to residents of LA County traveling outside of the Southern California region and also anyone traveling into the LA County from outside the Southern California region for a nonessential reason, including visiting family members. The Southern California Region includes Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura counties. Essential reasons include essential government functions, essential infrastructure, traveling to obtain medical or dental treatment, providing care to minors, dependents, or elderly persons, travel for members of collegiate or professional sports teams, and travel for film and media production operating within the County.

If any travelers meet these criteria they must quarantine themselves for 10 days by staying at home or avoiding contact with others.

People traveling through LA County and not staying overnight are exempted from the order.

As of today, there is no current end date for the quarantine order. Given that LA county is one of the areas most hard hit by COVID-19, we anticipate that the order will be in place for some time.

As mentioned in our previous Alert, this order has potential implications for complying with Cal/OSHA’s Emergency Temporary Standards which require employees to be excluded from work until they are no longer subject to an order to isolate.  We recommend that employers have protocols in place to refer to if an employee is subject to the LA County travel quarantine order.  

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.