Calif. businesses prepare to comply with emergency temporary standard for COVID-19

On November 19, 2020, the California Occupational Safety and Health Standards Board (OSHSB) adopted an emergency temporary standard (ETS) on Coronavirus (COVID-19) prevention in the workplace. On November 30, 2020, following approval from the Office of Administrative Law (OAL), the emergency standard was filed with the Secretary of State and took immediate effect. 

Phlymar Regulatory Roundtable (PRR) Director Elizabeth Treanor and Associate Director Helen Cleary have been closely following and participating in this emergency rulemaking process.

The ETS aligns with elements of Cal/OSHA’s Injury and Illness Prevention Program in that it requires a written program that includes a system to communicate with employees; procedures to identify, evaluate, and correct hazards; training; and recordkeeping requirements, according to an assessment by PRR Associate Director Cleary.

It also includes requirements that are more prescriptive, according to Cleary. Some of these prescriptive elements follow current Cal/OSHA industry guidance to protect workers from COVID-19 and requirements from the California Department of Public Health (CDPH) that employers should have already implemented.

However, there are new specific requirements for shared housing and transportation, employer paid time off during quarantine, no cost testing if an employee is exposed, and testing schedules when multiple employees test positive for COVID-19.  A significant difference between the emergency standard and Cal/OSHA guidance is that the guidance was created for specific industries and types of operations.  The standard does not differentiate between industries and is a “one size fits all approach.” 

More information from Cleary’s analysis:

• The ETS applies to all employees and places of employment, with more than one employee, that may have contact with other people.  It does not apply to employees working from home or covered by Cal/OSHA’s Aerosol Transmissible Diseases Standard.  The scope also states that “nothing in this section is intended to limit more protective or stringent state or local health department mandates or guidance.”
• Controls and/or policies and procedures shall be implemented to correct identified hazards.  Specific controls are identified in separate subsections of the text and include, physical distancing, face coverings, personal protective equipment, ventilation, cleaning, etc.  
• Training shall be provided on the employer’s COVID-19 policies and procedures to protect workers from COVID-19, in addition to, information regarding COVID-19 related employee benefits that employees may be entitled to under federal, state, or local laws (e.g., workers compensation, Families First Coronavirus Response Act, AB1867 Supplemental Paid Sick Leave).  The text also includes specific training elements (e.g., COVID-19 symptoms and transmission, hand hygiene, proper use of face coverings).
• Physical distancing of at least six feet is required unless the employer can demonstrate it is not feasible. If it is not feasible, individuals shall be as far apart as possible.  The text lists examples to maintain physical distancing that include, telework, visual cues, staggered shifts, and adjusted work processes. There is also an exception to physical distancing: “momentary exposure while persons are in movement.”  
• Face coverings must be provided and are required, in accordance with CDPH and local health departments, while indoors, and outdoors when individuals are less than six feet from others.  Employers are responsible to ensure face coverings are clean and undamaged and are required to communicate face covering requirements to non-employees.  Exceptions to wearing face coverings include, when an employee is alone in a room; while eating and drinking (maintaining physical distancing); when specific tasks cannot be performed; or the face covering poses a health or safety risk.  For situations when an employee cannot wear a face covering, or acceptable alternative (e.g., respiratory protection, face shield with drape) and cannot maintain physical distance, COVID-19 testing is required twice a week.