California Imposes More Stringent Requirements on Employers Relating to COVID-19

On November 20, 2020, the California Occupational Safety and Health Standard Board adopted temporary regulations regarding measures that employers must undertake in order to prevent the spread of COVID-19 in the workplace. On November 30, those regulations went into effect and are set to be in place for at least 180 days. California employers must now take immediate steps to ensure compliance with these new and in some ways extraordinary regulations.

Critically, these new regulations require most California employers to create a written COVID-19 Prevention Plan addressing the following categories:

• System for communicating information to employees about COVID-19.
• Identification and evaluation of COVID-19 hazards.
• Investigating and responding to COVID-19 cases in the workplace.
• Correcting COVID-19 hazards.
• Training and instruction.
• Physical distancing.
• Face coverings.
• Other engineering controls, administrative controls, and personal protective equipment.
• Reporting, recordkeeping, and access.
• Exclusion of COVID-19 cases.
• Criteria for employees to return to work after recovering from COVID-19.

These new regulations also address testing and notification requirements for COVID-19 outbreaks in the workplace and specific requirements in employer-provided housing.

While all of these regulations require special attention from California employers, one of the most extraordinary aspects are the provisions regarding exclusion of COVID-19 cases from the workplace. Specifically, the regulations require employers to exclude from the workplace (1) persons who have tested positive for COVID-19, (2) persons subject to a COVID-19-related order to isolate, and (3) employees with COVID-19 exposure. While these requirements are fairly standard, what is not standard is the requirement that (subject to certain limited exceptions) employers continue to provide excluded employees with all earnings, seniority, and other rights and benefits while they are excluded from the workplace and until they are eligible to return. This requirement essentially provides employees with an additional type of paid leave independent of paid leave provided by California’s Healthy Workplace Healthy Family Act, the Federal Families First Coronavirus Response Act, and California’s new laws providing for COVID-19 supplemental paid sick leave.

California employers need to promptly review and likely update their current policies and protocols to ensure they are in compliance. While California Occupational Safety and Health Standard personnel have stated that they will consider an employer’s good faith efforts to comply with certain portions of these regulations providing for new obligations, compliance with certain existing obligations, e.g., those regarding elimination of hazards and implementing testing requirements during an outbreak, is essential and will be strictly construed. Stoel Rives will continue to provide updates as more information becomes available.