1.The Order is Effective Now and Applies to Most Companies
The emergency temporary order drafted by the California Division of Occupational Safety and Health (“Cal/OSHA”) took effect on November 30, 2020, the day it was approved by the Office of Administrative Law. The Order is effective for at least 180 days but can be extended for additional 90 day periods if readopted.
The only companies exempt from the Order are companies with remote employees only when the employees are not in the workplace, companies with one employee who does not have contact with others, or companies already covered by Cal/OSHA’s aerosol transmission standards.
2. Companies Must Have a Written COVID-19 Prevention Program (CPP)
The Order requires each company establish, implement, and maintain a Written COVID-19 Prevention Program (“CPP”), which may be part of the company’s Injury and Illness Program already required by Cal/OSHA. The CPP must include the following information:
- System for communicating to employees;
- Identification and evaluation of COVID-19 hazards;
- Investigating and responding to COVID-19 cases in the workplace;
- Correction of COVID-19 hazards;
- Employee training and instruction;
- Physical distancing;
- Face coverings;
- Other engineering controls, administrative controls, and personal protective equipment;
- Reporting, recordkeeping, and access to records;
- Exclusion of COVID-19 cases from the workplace; and
- Return to work criteria.
3. Companies Must Offer Paid Leave to COVID-19 Cases
Companies should not allow employees with a positive COVID-19 test or subject to a COVID-19 order to isolate to enter the workplace until certain requirements are met. Within one business day, companies must notify all employees, their authorized representatives, and independent contractors who may have been exposed to COVID-19 in the workplace.
Companies must continue to provide employees with their same level of pay, seniority, benefits, and job status while they are unable to return to work and communicate this information to employees. This requirement does not apply if the employee can continue to work in a location without additional workplace exposure, the employee is unable to work for reasons other than protecting persons at the workplace from COVID-19 transmission, or the company demonstrates the employee’s exposure was not work-related.
4. Steep Penalties Apply for Non-compliance
Companies are expected to comply with the order immediately, but Cal/OSHA enforcement personnel will “consider an employer’s good faith efforts” towards compliance. However, certain elements of the Order, such as eliminating hazards and implementing testing requirements during an outbreak, are considered essential.
Cal/OSHA has five different classifications of citations (Regulatory, General, Serious, Repeat, and Willful), which result in different penalties. Due to the gravity of COVID-19, most violations of the Order will likely be considered Serious violations that have a maximum penalty amount of $25,000 per violation. The average company inspected by Cal/OSHA is cited with three violations and proposed penalties of $28,372. In the last four months Cal/OSHA has proposed $1,532,110 of penalties relating to COVID-19, with penalties costing $108,450 for one company.
5. Inexpensive Solutions Help Companies Comply
SixFifty, the subsidiary of the law firm Wilson Sonsini Goodrich & Rosati, offers an affordable tool that helps companies create a customized CPP. SixFifty’s Return-to-Work Toolset has 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...
Full Bio and other articles by Marie Kulbeth
About The Author: 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 General Counsel allows her to field-test SixFifty’s products to ensure they’ll work for customers.
Education and Experience
Marie attended Brigham Young University, and spent most of her undergrad studying International Politics and Development. It was during a field study in South Africa that she first decided to become a lawyer. As she researched the new South African constitution and worked with community organizers, Marie became fascinated with the development of the rule of law and how it in turn fosters economic development.
After undergrad, she attended BYU Law, where she continued focusing on improving equity, specifically through access to justice. She spent time interning with a nonprofit at the Human Rights Council in Geneva and with the United Nations International Tribunal for the Rwandan Genocide. At home, she interned with Catholic Charities, focusing on supporting asylum cases. Marie’s work with communities and governments across the globe broadened her understanding of how the law can either uplift or further harm underserved populations.
After law school, Marie worked as a judicial law clerk for the US Fifth Circuit Court of Appeals. She then practiced commercial litigation in Salt Lake City before returning to BYU Law, where she became an Assistant Dean. During her time at BYU Law, Marie built a diversity recruiting program and a storytelling program. Although she has left academia, she continues to keep a hand in by teaching a legal design class at BYU Law School and an undergraduate international politics class that focuses on development and diplomacy at BYU’s Kennedy Center. Both courses help students increase their community engagement and use their skills to create change.
Achievements with SixFifty
Marie’s work with both SixFifty and LawX focuses on making the law less complicated and
more equitable for both companies and individuals.
Marie’s legal specialty is privacy. She has additional focus areas in legal technology; diversity, equity and inclusion; employment; and compliance. She enjoys the opportunity to build products with the legal product team, including pro bono products. This allows her to work with communities she cares about – and complements the work she continues to do at BYU.
With Marie’s guidance and experience, SixFifty is able to offer privacy products that allow even small companies to easily comply with global privacy restrictions. Her passion for making the law accessible to everyone is evident in our pro bono products, which help individuals access free legal help for common issues.
Get to Know Marie
When she’s not helping to advance SixFifty’s mission, Marie travels whenever she can. Keep your eyes open and you may find her anywhere in the world – one of her favorite trips was a seven-day motorbike tour of northern Thailand. She especially loves to canyoneer in southern Utah and explore wilderness areas.
Marie also continues her community development and education work. She is on the board of several nonprofits, including one that runs primary schools in South Sudan and the Utah Tribal Relief Foundation. She recently joined the board of the Mountainland Association of Governments, which focuses on making loans to entrepreneurs from underserved communities who lack access to traditional funding. She’s also a Model UN legend! She is the Executive Director of BYUMUN, Utah’s premier high school Model United Nations learning conference.
Marie loves podcasts and will nerd out on anything related to the law, the history of the English language, and anything done by the people at Radiolab.
Bar Licensed
Utah
More posts by Marie Kulbeth