CA Issues COVID-19 Emergency Temporary Standards Requiring Paid Leave for Most Quarantined Workers

On November 30, 2020, new rules issued by Cal/OSHA went into effect, impacting the obligations of nearly every employer in the state concerning preventing workplace exposure to COVID-19 and stopping outbreaks. The new regulations include a requirement that any employee excluded from the workplace due to a positive COVID-19 test must be provided paid sick leave unless the employee is unable to work for reasons other than just protecting other persons at work from potential COVID-19 transmission. The only exceptions from the new rules are workplaces where there is only one employee who does not have contact with other people, employees working from home, and workplaces covered by the Aerosol Transmissible Disease regulation, including hospitals and certain medical providers that have their own strict standards.

Emergency Temporary Standards (ETS), which will remain in effect for at least 180 days and may be extended, provide additional paid time off requirements to those already required under the Federal Families First Coronavirus Response Act (FFCRA), the California Labor Code, and any leave guaranteed by contract. The FFCRA and its relevant exclusions remain in effect until December 31, 2020, when it is scheduled to expire. However, it remains to be seen whether federal legislators will extend the FFCRA’s paid leave requirements.

Thakur Law Firm, APC’s team of experienced employment lawyers has reviewed and analyzed the new regulations, known as the COVID-19 Emergency Temporary Standards, and briefly summarized the new requirements for employers, as follows:

• Create and implement a COVID-19 Prevention Program;

• Identify COVID-19 hazards, with input from employees, and correct any such hazards;

• Conduct contact tracing following any positive case that involved potential workplace exposure;

• Notify and provide testing to potentially exposed employees;

• Require physical distancing and mask-wearing, improve ventilation, and maximize outdoor air;

• Do not allow workers with COVID-19 or who are at high risk of exposure to return to work until their quarantine ends;

• Provide paid leave to all quarantined employees throughout their quarantine;

• Report all “outbreaks” to the local public health department. An “outbreak” is defined as three or more cases in a 14-day period to the public health department;

• Provide continuous testing in the case of an outbreak as described below;

• In employer-provided housing, space beds six feet apart, eliminate bunk beds, and disinfect daily; and,

• In employer-provided transportation, screen workers before boarding and require them to sit three feet apart in all directions and wear face coverings.

The Department of Industrial Relations (DIR) has issued guidance instructing employers to implement the new standards quickly and that Cal/OSHA would consider employers’ good faith efforts toward achieving full compliance, but emphasized that requirements for eliminating workplace hazards and implementing testing measures are “essential.”

Pay for Employees Excluded from Work due to COVID-19 Exposure

If the employee is able and available to work, then under these rules, the employer must continue to pay the employee and maintain the employee’s benefits if the employee’s exposure is work-related and the employee cannot be reassigned to work that does not involve contact with other workers. An employer may require the employee to use available paid sick leave before providing “exclusion” pay and may offset payments by the amount that the employee receives in other benefits, such as worker’s compensation or disability payments.

What are Employers’ Testing Obligations?

Under the Emergency Temporary Standards, employers must inform employees how they can obtain testing. This could be through the employer, local health department, a health plan, or community testing center. The only obligation to all employees is to provide information. Offer testing to an employee at no cost during working hours in the event of a potential COVID-19 work-related exposure. Provide periodic (at least weekly or twice per week depending on the magnitude of the outbreak) COVID-19 testing to all employees in an “exposed workplace” during an “outbreak.” Testing must be provided in a manner that ensures employee confidentiality.

COVID-19 Prevention Plan:

The new standards require employers to develop a written COVID-19 prevention program to be integrated into employers’ existing Injury and Illness Programs. The program must be shared with all employees and unions representatives, if any, and must include the following specific elements:

a) A communication system for reporting symptoms/exposure (without fear of reprisal);

b) Identification and evaluation of COVID-19 hazards;

c) Procedures to investigate and respond to COVID-19 cases in the workplace;

d) Correction of COVID-19 hazards;

e) Training and instruction to employees about the policies and procedures and ways to avoid COVID-19 infection (e.g., PPE, physical distancing, masks, etc.);

f) The requirement of physical distancing of at least six feet unless impossible;

g) Face coverings to be worn over nose and mouth;

h) Engineering and administrative controls (e.g., barriers, ventilation, sanitation, handwashing, PPE);

i) Reporting, recording keeping, and access;

j) Exclusion of COVID-19 positive employees from the workplace (until return to work criteria are met) and COVID-19 exposed from the workplace until return to work criteria are met, and

k) Return to work criteria.

l) As part of this plan, employers must provide free masks and other PPE to all workers.

Employers’ return-to-work criteria must include that: (1) at least 24 hours have passed since any fever of 100.4 or higher has resolved without the use of fever-reducing medications; (2) COVID-19 symptoms have improved; and (3) at least 10 days have passed since symptoms first appeared. For employees who tested positive for COVID-19 but never developed symptoms, such employees may not be permitted to return to work until a minimum of 10 days have passed since their first positive test result. Additionally, a negative COVID-19 test cannot be required for an employee to return to work.

To determine potential COVID-19 exposure, employers must determine which, if any, employee was within six feet of a person with COVID-19 for a cumulative total of 15 minutes during any 24-hour period during the “high-risk exposure period.” The “high-risk exposure period” is:

• For COVID-19 cases who develop COVID-19 symptoms, from two days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.

• For persons who test positive but never develop COVID-19 symptoms, from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.

Response to “Multiple Infections” or “Major Outbreaks”

There are specific requirements for “multiple infections” and “major outbreaks.” A “multiple infection” exists when an employer has three or more infections in 14 days until there are no new cases for a 14-day period. The infection count includes non-employees who were in the workplace. In such an event, employers must provide COVID-19 testing to all employees present (at no cost and during working time) during the outbreak. This testing must also be provided in a manner to ensure confidentiality.

Specifically, employees should be tested upon identification of the outbreak and then again one week later. After the first two COVID-19 tests, employers must provide continuous COVID-19 testing of employees who remain at the workplace, at least once a week, or even more often, if recommended by the local health department, until there are no new cases for a 14-day period.

Employers must also immediately investigate to determine what, if any, possible workplace-related factors contributed to the outbreak and document both the review and steps taken to mitigate the issues including: (1) leave policies and practices and whether employees are discouraged from remaining home when sick; (2) COVID-19 testing policies; (3) insufficient outdoor air; (4) insufficient air filtration; and (5) lack of physical distancing. This review must be done every 30 days until the outbreak ends. Employers are also advised to make changes aimed at curbing the transmission of COVID-19. Employers should document all measures taken to comply in anticipation of a potential audit by Cal/OSHA or other state officials.

Finally, immediately (but, in no case, longer than 48 hours after learning of three or more COVID-19 cases), employers must notify their local health department of the total number of COVID-19 cases and for each case, report the name, contact information, occupation, workplace location, business address, the hospitalization and/or fatality status of the infected persons, the NAICS Code, and any other information requested by the local health department.

Employers have even further enhanced obligations in the event of a “major outbreak,” which is defined as 20 or more cases in an exposed workplace within 30 days until there are no new cases for 14 days. In this instance, the employer must provide twice a week COVID-19 testing (at no cost and during working hours), or more frequently if recommended by the local health department to all employees present at the exposed workplace during the relevant 30-day period(s) and who remain at the workplace.

Employers are also required to evaluate the ventilation and air quality. They may potentially need to filter recirculated air with a high-efficiency filter, if compatible with the existing ventilation system, with a Minimum Efficiency Reporting Value (MERV) 13 or higher. If not compatible, the employer should use whatever the highest compatible filtering efficiency is possible. Employers should also evaluate whether to halt some or all operations until hazards have been corrected. As with multiple infections, employers must notify their local health department.

For both “multiple infections” and “major outbreaks,” employers should consider the exposed workplace to be the work location, working areas, or shared areas used or accessed by a COVID-19 case during the employee’s high-risk period. This includes bathrooms, hallways, break/eating areas, and waiting areas.

As federal, state, and local government agencies continue to issue new rules and regulations relating to COVID-19, the experienced employment attorneys at Thakur Law Firm will continue to monitor developments that impact our business clients closely. If you have any questions about complying with COVID-19-related obligations, please do not hesitate to contact the Thakur Law Firm today.