The COVID Wheels Keep Turning: Cal/OSHA Issues Updates to COVID-19 FAQs and More Important Information

Cal/OSHA updated its FAQs regarding COVID-19 to bring them in line with the recent revisions to the Cal/OSHA Emergency Temporary Standards (“ETS”).  Additionally, Cal/OSHA published a proposed permanent standard for COVID-19 safety in the workplace which, if approved will take effect January 1, 2023.  As a result, employers should take notice that COVID-19 safety compliance is here to stay, and should make sure they stay abreast of developments through our Client Alerts as well as other sources.  Finally, Federal OSHA announced a continued emphasis on inspections of healthcare facilities treating patients with COVID-19.  As a result, healthcare employers should ensure that their COVID-19 standards are up to date and they are prepared for any OSHA inspections.

We turn first to the recent revisions to the FAQs.  Cal/OSHA recently updated several FAQs ranging from how to respond to COVID-19 cases in the workplace to outbreak protocols. These updates include:

• Responding to COVID-19 in the workplace.  The FAQs list several steps employers must take when investigating and responding to a COVID-19 case in the workplace.  The recent update to the FAQs makes clear that testing must be offered to all employees who have been in close contact with any COVID-19 case (i.e. the employee who tested positive).  The only exception to this requirement is if the exposed employee had COVID-19 within the last 90 days and remained asymptomatic.  This revision brings the FAQs in line with the recent updates to the Cal/OSHA ETS, which expanded the testing requirements from the previous iteration.  The prior version of the ETS required testing to be offered only to unvaccinated employees after a close contact.
• Deferring to the California Department of Health.  The updated FAQs reiterate that provisions of the ETS can be modified if the California Department of Public Health (“CDPH”) defines certain terms differently than the ETS.  Specifically, the terms “close contact” and “infectious period” may change if the CDPH issues a regulation or order doing so.  Currently, a close contact is defined as someone sharing the same indoor airspace (e.g., home, clinic waiting room, airplane etc.) for a cumulative total of 15 minutes or more over a 24-hour period.  The “infectious period” is defined as: 2 days before the infected person had any 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, or if the employee did not develop symptoms, 2 days before the positive test date until 10 days after the testing date for their first positive COVID-19 test.  We will continue to issue Client Alerts if there are any regulations or orders altering these definitions.
• What to do if an employee refuses to take a COVID-19 test.  The FAQs make clear that an employer does not violate the provisions of the ETS if it offers a test at no cost to an employee but the employee refuses to take it.  Employers are not required to obtain a signed declination from employees refusing testing; however, it is a best practice to do so to prevent any claims that testing was not provided.  There is an exception in the case of major outbreaks when employers must require COVID-19 testing at regular intervals.  When this occurs, employers can require employees to submit to viral testing but not antibody testing.  This is an important distinction highlighted by DFEH guidance on the topic.  If an employee refuses to test during a major outbreak an employer can consider reprimanding the employee; however, we suggest reaching out to counsel before doing so as this can be a nuanced area.
• Revised trigger for an outbreak.  Under the ETS, an outbreak occurs when 3 or more employees in an “exposed group” test positive within 14 days.  An exposed group includes all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the infectious period. A common area at work includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. A place where persons momentarily pass through while everyone is wearing face coverings without congregating is not a work location, working area or a common area at work. The updated FAQ clarifies that (1) employees who are part of a separate work group who were not present at the same time as other employees, like a working a shift that does not overlap, will not be part of the exposed group, and (2) if the employee who tested positive was in the work area for less than 15 minutes, and the other employees were wearing face coverings, they will not be considered part of the exposed group. This clarification is particularly important for employers with larger workforces who work together in large spaces.  Making sure employees wear face covering and work separate shifts may be the difference between your whole workforce being subject to outbreak requirements versus just a small subset.

In addition to releasing FAQs regarding the current ETS, Cal/OSHA has also released a proposed permanent standard for COVID-19 precautions in the workplace.  If approved, the permanent standard would take effect on January 1, 2023 and would generally apply for the two years with some recordkeeping requirements applying for longer.  While the language of the permanent standard is not yet finalized, many of the requirements are similar to the current ETS. Substantive proposed changes that deviate from the current ETS include the following:

• COVID-19 is a Workplace Hazard.  The draft final regulation would define COVID-19 as a workplace hazard. Under Cal/OSHA’s regulations, employers are required to “establish, implement, and maintain an effective Injury and Illness Prevention Program,” which, under the draft final rules, would include having effective methods and/or procedures for responding to a COVID-19 case at the workplace. This requirement would not pertain to COVID-19 outbreaks that would be subject to separate testing and reporting requirements. (See below.)
• Return-to-Work Exceptions. Cal/OSHA “may, upon request, allow employees to return to work on the basis that the removal of an employee would create undue risk to a community’s health and safety. In such cases, the employer shall develop, implement, and maintain effective control measures to prevent transmission in the workplace including providing isolation for the employee at the workplace and, if isolation is not feasible, the use of respirators in the workplace.”  The standard of what constitutes an “undue risk to a community’s health and safety” has not yet been determined.  However, it is unlikely that many employees will meet this standard.  We anticipate that Cal/OSHA will provide additional definitions in the final rule or issue FAQs to flesh out this new exception.
• Recordkeeping.  The proposal permanent standard includes additional recordkeeping requirements including keeping records of the date of the positive COVID-19 test and/or COVID-19 diagnosis as well as of persons who had close contact in the workplace. Employers would be required to retain records “for two years beyond the period in which the record is necessary to meet the requirements” of the applicable regulation. Employers would also be required to retain copies of required notices sent to employees after a COVID-19 case has been in the workplace.

We will issue Client Alerts as these draft standards move to being finalized and approved.

Finally, Federal OSHA announced an extension of its National Emphasis Program (“NEP”) targeted at healthcare providers who treat COVID-19 patients. OSHA officials stated in a June 30th announcement that they will devote 15% of OSHA’s inspections to the following healthcare providers: (1) General Medical and Surgical Hospitals, (2) Psychiatric and Substance Abuse Hospitals,  (3) Skilled Nursing Facilities, and (4) Assisted Living Facilities for the Elderly.  Employers within these four categories should continue to monitor their COVID-19 prevention plans and make sure employees are continuing to follow the COVID-19 precautions they have put in place.  These employers should also have a plan of action for a potential OSHA inspection including having an attorney present if possible and designating certain managers to communicate with OSHA.  If you have questions on how to prepare the workplace for any OSHA investigations, you should reach out to your Stradling attorney who can guide you through the process.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying with 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 want to make sure you are in compliance with the applicable industry guidelines.

Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.