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.