In November, California quietly approved the Division of Occupational Safety and Health’s (“Cal OSHA”) COVID-19 Emergency Temporary Standard (“ETS”). Almost immediately, Cal OSHA’s ETS caused significant confusion and challenges for employers, who were already struggling with countless federal, state, and local requirements pertaining to COVID-19. Cal OSHA’s ETS also appeared to create new and different notification obligations for COVID-19 cases than those already provided for under AB 685 and standing health officer orders, and imposed confusing obligations on employers related to COVID-19 testing, work exclusions, and reporting of COVID-19 cases.

In places, Cal OSHA’s ETS could also be viewed as requiring inconsistent response measures to those recommended under current guidance from the Centers for Disease Control and Prevention (“CDC”) and standing health officer orders. Moreover, the ETS require preventive measures without consideration for the feasibility of those measures for certain workplaces.

In response to numerous concerns raised by employers and business associations, Cal OSHA’s standards board held a public meeting on the ETS in mid-December. And in response to stakeholder concerns, Cal OSHA promised to provide additional guidance on the ETS in the form of updated Frequently Asked Questions (“FAQs”) on its website.

At the start of January, and more than a month after the ETS had gone into effect, Cal OSHA finally published its additional guidance on the ETS.

The FAQs cover a host of topics, including information on the ETS’s applicability, how Cal OSHA intends to enforce the ETS, key requirements, and guidance for how employers can comply. Cal OSHA also provided clarification on testing requirements, considerations for “multiple infections,” or outbreak conditions, and requirements for providing exclusion pay to employees. Although much of the FAQs are merely a restatement of the actual ETS, there are some clarifications in the FAQs that have a substantial impact on employers. The FAQs also at times appear to depart from the ETS and provide an altered compliance obligation.

Some highlights from the FAQs include the following:

• Scope of Coverage: The ETS applies to all employers, employees, and all places of employment with three exceptions:

  • A workplace where there is only one employee who does not have contact with other people;

  • Employees who are working from home; and

  • Employees who are covered by Cal OSHA’s Aerosol Transmissible Diseases Standard and regulations.

• Communication with Employees: Under the ETS employer must have effective communication with employees on (i) how to report COVID-19 symptoms, exposures, and hazards to the employer without fear of reprisal, (ii) COVID-19 hazards in the workplace, (iii) the employer’s COVID-19 related policies and procedures; (iv) testing resources, (v) how the employer will notify employees of potential COVID-19 exposures; (vi) the employer’s cleaning and disinfection protocols; and (vii) how employees can participate in identification and evaluation of COVID-19 hazards in the workplace. Employers must also provide training to employees on a wide range of COVID-19 related topics, including information on benefits that may be available to the employee and the proper use of face coverings.

• Outbreaks and Exposed Workplaces: The FAQ somewhat clarifies the definitions of an outbreak, major outbreak, and “exposed workplace” for Cal OSHA purposes. For purposes of the ETS, “an outbreak” is three or more employees who are COVID-19 positive in 14 days, whereas “a major outbreak” is 20 or more employees testing positive in 30 days in an exposed workplace. An “exposed workplace” is, in turn, considered to be a work location, working area, or common area that is used or accessed by a COVID-19 case during their high-risk period or infectious period and can include bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. However, the FAQs indicate that Cal OSHA does not expect employers to treat areas where masked employees momentarily pass through as part of the “exposed workplace.” Cal OSHA’s FAQs also do not address the fact that their interpretation of an outbreak or exposed workplace may be markedly different from the local health departments or how employers should address an outbreak condition when there are competing definitions or requirements under California laws (e.g., the ETS and health officer order).

• Testing Requirements: In an attempt to clarify the testing obligation for employers, Cal OSHA’s FAQ states that when testing is required under the ETS, employers must only (i) inform employees on the need for testing and how they can obtain COVID-19 testing; (ii) offer testing to the affected employees at no cost; and (iii) ensure employees are compensated for the time it takes to get tested. Despite the plain language of the ETS conveying different obligations for testing in response to a COVID-19 case and outbreak conditions, Cal OSHA’s FAQ also states that there is no difference in meaning between the obligation to “offer” or “provide” testing in the ETS. Further, even though the ETS conveys that employees are to be immediately tested in some circumstances, employers are not required to mandate employee testing, exclude the employee from the workplace until testing is complete, or obtain a declination from an employee who refuses to be tested.

Despite Cal OSHA providing 69 FAQs and responses, employers are likely to continue to have questions as well as face compliance challenges. Cal OSHA has, for example, not addressed the permissibility of employers using COVID-19 testing resources that are approved through an alternate regulatory pathway than the Food and Drug Administration and Emergency Use Authorization pathway outlined in the ETS, even if these testing resources are more readily available or affordable.

Cal OSHA’s FAQs also do not address challenges posed by the exclusion pay provisions. This is especially significant given that some of the sick leave benefits Cal OSHA contemplates as being available for employers to meet exclusion pay provisions expired at the end of 2020 and have not been renewed. Moreover, Cal OSHA does not address the apparent conflict in the exclusion pay provisions and workers’ compensation compensability. The conflict arises especially with employees who become symptomatic as they may not be eligible for exclusion pay and may also not be eligible for workers’ compensation.

Cal OSHA’s FAQs has advised that additional resources for compliance are forthcoming and that resources, including sample training materials, will be posted and updated on Cal/OSHA’s COVID-19 webpage.