Cal/OSHA Stakeholder Meeting
At a stakeholder meeting on December 18, 2020, California’s Occupational Safety and Health Standards Board addressed questions and concerns about the Emergency Temporary Standards (“ETS”) issued by Cal/OSHA and established an agenda for an advisory committee meeting discussing amendments to the ETS.
The stakeholder meeting provided some clarifications about the ETS, many of which were incorporated into the updated Frequently Asked Questions discussed below, but many questions still remain.
On January 8, 2021 and January 26, 2021, Cal/OSHA updated the COVID-19 Emergency Temporary Standards Frequently Asked Questions and more than doubled the number of questions that were answered relating to the ETS (the “New FAQs”).
Relief from Penalties until February 2, 2021
Employers were required to immediately comply with the ETS as of its effective date of November 30, 2020. When enforcing the ETS, Cal/OSHA considers an employer’s good faith effort to comply. The New FAQs state that Cal/OSHA will cite but not assess monetary penalties for violations of the ETS through February 1, 2021. This temporary relief from monetary penalties only applies for violations that would not otherwise be a violation of any other applicable Cal/OSHA standard in place prior to November 30, 2020, such as pre-existing Injury and Illness Prevention Program (“IIPP”) requirements.
Cal/OSHA has ramped up citations for violations relating to COVID-19, indicating it will be ready to assess penalties relating to the ETS on February 2. In December 2020, Cal/OSHA issued 111 COVID-19 related citations with proposed penalties totaling $720,235, more than doubling any prior month. Since August 2020, Cal/OSHA has issued more than $2.5 million of proposed penalties relating to COVID-19 violations.
Under the ETS, employers must continue to provide pay and benefits to employees who are able and ready to work but excluded from the workplace due to workplace COVID-19 exposure (“exclusion pay”). Exclusion pay typically lasts for the quarantine period of up to 14 days, but employers do not need to provide exclusion pay to employees who are unable to work because of their COVID-19 symptoms. Additionally, employers do not need to provide exclusion pay to employees who are unable to work because of reasons other than protecting persons at the workplace from possible COVID-19 transmission (e.g., business closure, caring for a family member, disability, or vacation).
Employers do not need to provide exclusion pay if they can establish an employee’s COVID-19 exposure was not work related. There is a presumption that exposure is work related. Employers can rebut that presumption by conducting a “comparable investigation” and producing “comparable evidence” to show it is more likely than not that the employee’s COVID-19 exposure did not occur in the workplace. One interpretation of this guidance is that employers may conduct an investigation into an employee’s exposure similar to the investigation that employers must conduct if there is a case of COVID-19 in the workplace, including:
o Determining the day and time the COVID-19 case was last present in the workplace,
o Determining the date of any positive COVID-19 test or diagnosis,
o Determining the date the COVID-19 case first experienced any COVID-19 symptoms,
o Evaluating the activities of the COVID-19 case, and/ or
o Evaluating all locations at the workplace the COVID-19 case visited during the high-risk exposure period.
Impact of Vaccines
According to the New FAQs, all prevention measures under the ETS must be continued even for vaccinated persons. The impact of vaccines will be addressed in future revisions to the ETS.
Free Testing to Employees
Employers are required to “offer COVID-19 testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace.” The New FAQs indicate that employers can satisfy this requirement by directing their employees to a free testing site, such as those run by the city or county. However, employers must pay employees for the time to travel to the testing site and to get tested and reimburse employees for travel costs (e.g., mileage or public transportation costs). The New FAQs explain that the test does not need to occur during normal working hours if employees are paid for the testing and travel time.
Additional Guidance From Cal/OSHA
Cal/OSHA will continually update the COVID-19 Emergency Temporary Standards Frequently Asked Questions, especially as vaccines play a larger role in COVID-19 prevention. An advisory committee meeting to discuss amendments to the ETS will likely result in changes to the ETS.
Solutions for Compliance
SixFifty offers an affordable Cal/OSHA tool that creates a customized Written COVID-19 Prevention Program and other documentation required by the ETS based on the latest Cal/OSHA guidance. SixFifty’s Return-to-Work Toolset has also helped hundreds of companies assess their return-to-work readiness, generate the return-to-work policies and other key documents, and track employee health to keep sick employees home.
Written by Marie Kulbeth
Marie Kulbeth is a Co-Founder and General Counsel of SixFifty, and the co-director of BYU LawX, a legal design lab dedicated to solving access to justice problems. She works to make the law straightforward for everyone, regardless of education level or income. Marie keeps her passion for equitable, accessible legal services at the forefront of her career. Her role as...
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