On November 19, 2020, the California Occupational Safety and Health Standards Board voted and approved an emergency COVID-19 regulation governing employers and workplaces.

With more than 500 people virtually attending the monthly Standards Board meeting and many worker advocacy groups pressing for quick adoption of the draft regulation, the public comments—which came from teaching organizations, retail employees, agricultural employee advocates, and a broad labor coalition—were prolonged. A representative from the California Chamber of Commerce expressed a variety of concerns, including the lack of stakeholder input to the draft regulation, the difficulty that small employers will face with compliance, and the difficulties large employers will face in geographic areas where the social spread of COVID-19 drives the outbreaks.

During the Standards Board meeting, agricultural employers and their trade organizations expressed deep misgivings about the new employee housing and employer-provided transportation regulations as not feasible and unworkable for workers living in seasonal housing in the central valley. Manufacturer representatives also explained that the regulation conflicted unnecessarily with recently-passed California COVID-19 legislation and had not had sufficient stakeholder input. One manufacturing and technology stakeholder explained that the new regulation adds another layer to existing local, state, and federal laws as well as the California Division of Occupational Safety and Health’s (Cal/OSHA) own guidance—and layering this inconsistent standard on top will not result in greater clarity for California employers or employees. After hours of public comment, the Standards Board voted unanimously to approve the emergency regulation.

The approved COVID-19 emergency regulation requires a written “COVID-19 Prevention Program,” the elements of which mirror California’s Injury and Illness Prevention Plan requirements. Much like Assembly Bill (AB) 685, this emergency COVID-19 regulation requires notification of potential COVID-19 exposure within one business day to exposed employees, their authorized representatives, independent contractors, or employers at a worksite. Employers are also now required to maintain medical records related to COVID-19 and provide those records to the local health department, the California Department of Public Health (CDPH), Cal/OSHA, and the National Institute for Occupational Safety and Health (NIOSH) upon request and to track all COVID-19 cases in the workplace.

Key Takeaways

The emergency regulation has been adopted, and, as a result, employers may want to take the following actions:

• draft or finalize their COVID-19 Prevention Program,

• prepare their COVID-19 exposure notification processes and testing protocols, and

• implement the new recordkeeping and notification procedures.