California recently adopted stringent COVID-19 workplace standards, known as the “Emergency COVID-19 Prevention Regulations”, that immediately went into effect on November 30, 2020.

Notably, the Regulations—which apply to almost all employees and places of employment—require employers to do the following:

1. Prepare a written “Covid-19 Prevention Program” which includes the information summarized below (this information includes COVID-19 safety protocols, employee exclusion and return-to-work protocols, and recordkeeping);
2. Offer testing to potentially exposed employees and provide written notice to all employees who have been potentially exposed; and
3. Provide paid and job-protected time off to employees who are excluded from the workplace due to a work-related COVID-19 transmission.

Please click here for a link to the final text. Employers should review the regulations as each topic imposes various obligations. Please contact a Stokes Wagner attorney if you have any questions.

COVID-19 SAFETY PROTOCOLS

System for Communication between Employees and their Employer. Employers must establish written policies that set forth the following:

• Asks employees to report to the employer, without fear of reprisal, COVID-19 symptoms, possible COVID-19 exposures, and possible COVID-19 hazards at the workplace.
• Describes procedures or policies for accommodating employees with medical or other conditions that put them at increased risk of severe COVID-19 illness.
• Provides information about access to COVID-19 testing. If testing is required, the employer shall inform affected employees of the reason for the COVID-19 testing and the possible consequences of a positive test.
• Communicates information about COVID-19 hazards and the employer’s COVID-19 policies and procedures to employees and to other employers, persons, and entities within or in contact with the employer’s workplace.

Identification and Evaluation of COVID-19 Hazards. Employers must specifically do the following to identify and evaluate COVID-19 standards:

• Develop and implement a process for screening employees for and responding to employees with COVID-19 symptoms.
• Develop COVID-19 policies and procedures to respond effectively and immediately to individual COVID-19 cases at the workplace.
• Conduct a workplace-specific identification of all interactions, areas, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards.
• For employers with indoor operations, evaluate how to maximize the quantity of outdoor air and whether it is possible to increase filtration efficiency to the highest level compatible with the existing ventilation system.

Correction of COVID-19 Hazards. Employers must implement effective policies and/or procedures for correcting unsafe or unhealthy conditions, work practices, policies, and procedures in a timely manner based on the severity of the hazard.

Training and Instruction. Employers must train employees on the following:

• Employer’s COVID-19 policies and procedures to protect employees from COVID-19 hazards.
• Information regarding COVID-19-related benefits to which the employee may be entitled as required by law.
• Facts as to the symptoms and infectious nature of COVID-19, including how it may be transmitted, how it can travel more than six feet.
• The importance of not coming to work and obtaining a COVID-19 test if an employee has COVID-19 symptoms.
• Methods for physical distancing and the importance of combining physical distancing with the wearing of face coverings, frequent handwashing with soap.

Physical Distancing. All employees must be separated by at least six feet, except: (1) where the employer can demonstrate that six feet of separation is not possible, and (2) momentary exposures while employees are in movement.

Face Coverings. Employers must provide face coverings to employees and ensure that employees wear their coverings over the nose and mouth when indoors, when outdoors and less than six feet away from another person, and where required otherwise by health or government orders.

Other Engineering controls, administrative controls, and personal protective equipment. Employers must take extra measures to ensure adequate social distancing, cleaning, and air filtration:

• Implement cleaning and disinfecting procedures and evaluate the need for personal protective equipment.
• Install cleanable solid partitions that effectively reduce aerosol transmission between employees.
• For buildings with mechanical or natural ventilation or both, employers must maximize the quantity of outside air provided to the extent possible.

RESPONDING TO COVID-19 CASES IN THE WORKPLACE

A “COVID-19 case” is defined as a person who (1) tests positive for “COVID-19”; (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 count. Employers must implement effective procedures and policies to investigate COVID-19 cases and exclude employees who test positive or have been potentially exposed in the workplace.

Investigating and Responding to COVID-19 Cases. Employers must engage in contact tracing following any positive case that involved potential workplace exposure, and then notify and provide testing to potentially exposed employees.

Excluding COVID-19 cases. Employers must exclude employees who test positive for COVID-19 or have been potentially exposed to COVID-19 from the workplace.

For how long must employees remain out of work? Workers who test positive for COVID-19 or are subject to isolation must be excluded from work until their quarantine ends. The duration of quarantine depends on whether an employee is symptomatic or asymptomatic.

• Employees who experienced COVID-19 symptoms (“symptomatic”) may not return to work until: (1) At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medication; (2) COVID-19 symptoms have improved; and (3) At least 10 days have passed since COVID-19 symptoms first appeared.
• Employees who do not develop COVID-19 symptoms (“asymptomatic”) may not return to work until ten 10 days after the date of specimen collection of their first positive COVID-19 test.
• Employees excluded because they were potentially exposed at the workplace (i.e., were in close contact with an employee who contracted or tested positive for COVID-19 during the period in which that employee was infectious) must not return to work until 14 days after the last known exposure, and those under an isolation or quarantine order must not return to work until the period of isolation or quarantine is completed or the order is lifted.

What are an employer’s notice obligations? Employers must issue written notice to all employees who have been exposed, their authorized representative, and independent contractors and other employers who were present during the high-risk exposure period within one business day (generally 48 hours before the onset of symptoms or specimen for the positive test).

Can employers require a negative test instead? No. Employers may not require a negative COVID-19 test for employees to return to work.

Is this “exclusion” time away from work protected time off and/or paid? Yes, BUT only if the employee is out of work due to COVID-19 exposure that is work-related.

• If an employee is unable to work due to a possible workplace COVID-19 transmission, employers must continue to pay them their earnings and continue their seniority, rights, and benefits, including their right to their former job status.
• To comply with this provision, employers may use other employer-provided sick leave benefits, benefit payments from public sources, and other legally mandated benefits (e.g., FFCRA pay) when the leave is not covered by workers’ compensation. Once those benefits are exhausted, the employer must provide additional paid time off.

Do employers have to offer COVID-19 Testing? Yes. Employers must offer COVID-19 testing at no cost during their working hours to all employees who had potential COVID-19 exposure in the workplace and provide them with the information on benefits.

What are the employer’s reporting requirements?

• Employers must report all outbreaks —defined as three or more cases in 14 days —to the public health department and provide continuous testing to all on-site employees (for 20 or more cases in 30 days, employers must provide twice-a-week testing).
• Employers must report immediately any COVID-19 related serious illnesses or death of an employee occurring in a place of employment or in connection with any employment.

RECORDKEEPING AND ACCESS

• Employers must maintain records of the steps taken to implement the written COVID-19 Prevention Program.
• Employers must make their written COVID-19 Prevention Program available to employees, authorized employee representatives (e.g., Union representatives), and representatives of the Division.
• Employers must keep a record of and track 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.
• All information must be kept confidential. The information shall be made available to employees, authorized employee representatives, or as otherwise required by law, with personal identifying information removed.

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This document provides a general summary and is for informational/educational purposes only. It is not intended to be comprehensive, nor does it constitute legal advice. Please consult with counsel before taking or refraining from taking any action.