The California Occupational Safety and Health Standards Board adopted its Emergency Temporary Standards (ETS) on COVID-19 prevention in the workplace on November 19, 2020, which we covered here.  Shortly after their adoption, the ETS became binding and enforceable against nearly all California employers effective November 30, 2020.  The next day, California’s Division of Occupational Safety and Health (“Cal/OSHA”) published frequently asked questions to provide guidance to employers on compliance with the extensive requirements under the ETS.  In light of significant pushback from employers finding themselves needing to deal with complications arising from near-immediate compliance, Cal/OSHA recently published additional guidance and clarifications to impacted employers.  The complete and comprehensive set of is available here, but key takeaways are below:

Enforcement

Cal/OSHA indicated that it will provide a brief period of relief from monetary penalties to permit employers to focus on obtaining compliance with the ETS.  Cal/OSHA will cite but not assess monetary penalties for violations of the ETS through February 1, 2021, provided the following conditions are met:

• The employer made a good faith effort to comply with the ETS;

• The violation would not have been considered a violation of the employer’s Injury and Illness Prevention Program (e.g., the requirement to identify and address hazards, use of face coverings, and physical distancing), respiratory protection program or other applicable Cal/OSHA standard in place prior to the date the ETS became effective, i.e., November 30, 2020;

• The employer does not fail or refuse to abate the ETS violation; and

• The violation does not involve an imminent hazard.

This clarification on enforcement provides welcome breathing space to employers struggling to implement the ETS while simultaneously dealing with and managing the surge of COVID-related illnesses and absences in the workplace.

Physical Distancing and Other Controls

The ETS require employers to ensure that employees maintain at least six feet of distance from other persons at all times possible, but do not specify a method of measuring six feet of physical distance.  Through their FAQs, Cal/OSHA clarified that it would accept: (1) measuring the space between two peoples’ bodies; or (2) measuring the distance between two peoples’ breathing zones (i.e., the distance between their heads).

The FAQs also provide that employers with “fixed work locations” must install cleanable solid partitions that reduce the risk of aerosol transmission, such as Plexiglas barriers.  A “fixed work location” means a workstation where a worker is assigned to work with minimal movement from that location for extended periods of time, such as cashiers, greeters, receptionists, workers at desks or in cubicles, and food production line workers.  A fixed work location does not include construction or maintenance work.  Cal/OSHA does not specify a size requirement for partitions, but they must be large enough to reduce the risk of aerosol transmission.  Because a violation of this requirement may constitute a “serious violation,” employers should ensure they comply with this requirement or take steps to spread employees out further in their fixed work locations.

Ventilation

The ETS require employers to maximize outdoor air and increase filtration efficiency of the ventilation system to the extent feasible.  Answering a common question, Cal/OSHA indicated that if an employer does not have control over the building or building workspace in which they operate (for example, because the employer leases the building or workspace), then employers should request that the building operator assist with compliance with the ETS.

Vaccines

Cal/OSHA has indicated that the availability of the COVID-19 vaccine will not affect employers’ current obligations to comply with the ETS.  While employers must continue to comply with the regulations for vaccinated employees, at least for now, the FAQs state that the impact of vaccines will likely be addressed in a future revision to the ETS.

Testing Requirements

One of the most significant obligations imposed on employers by the ETS were the new testing requirements, which oftentimes proved costly and difficult to enforce.  The FAQs provided helpful guidance on the following points:

• Employers may provide testing to employees at a testing site separate from employees’ work location, and need not provide on-site testing unless desired.

• Employers can send their employees to a free public testing site as long as employees incur no out-of-pocket costs to be tested, including costs incident to testing, such as mileage, parking, etc.

• Although the ETS mandates that testing be provided during working hours, the FAQs clarified that the employer only must provide testing during employees’ paid time. In other words, employers will meet their obligations under the ETS so long as the employee is compensated for their time spent obtaining testing, including travel to and from a testing location.

• There will be no violation of the ETS if an employee declines or refuses to take a test required or provided by the employer. If an employee declines or refuses to be tested, the employer also is not required to obtain a signed declination or other similar proof of refusal from the employee.  Notwithstanding this guidance, it would be advisable for employers to maintain their own records identifying any employees who refused to be tested, especially following an outbreak.

• Cal/OSHA will accept (1) tests approved by the United States Food and Drug Administration (FDA); and (2) tests that have an Emergency Use Authorization (EUA) from the FDA to diagnose current infection with the SARS-CoV-2 virus. These currently include both PCR and antigen tests.  The test must be administered in accordance with the FDA approval or FDA EUA.

Outbreaks and the “Exposed Workplace”

Another new significant requirement under the ETS is employers’ obligations when faced with an outbreak (three or more COVID-19 cases) in an “exposed workplace.”  Employers have struggled with implementing Cal/OSHA’s one-size-fits-all definition of “exposed workplace,” particularly in non-traditional facilities or workplace set-ups.  The FAQs have clarified that an outbreak is analyzed against a defined “work location,” not necessarily the employer’s entire building or facility.  The FAQs further clarified that an “outbreak” has not occurred for purposes of the ETS if a positive COVID case merely briefly passed through an area frequented by other employees while wearing a face covering.

Cal/OSHA additionally confirmed that employers are permitted to separate employees into cohorts or “pods” to reduce the size of the “exposed workplace” and provided assistance in how to count cases for outbreak purposes by instructing employers to look to the testing dates of the cases to determine if there has been an outbreak or major outbreak.

In addition, the new guidance states that employers only need to continue testing employees on a weekly basis until the workplace no longer qualifies as an outbreak (i.e., three or more cases in the exposed workplace over the preceding 14-day period).  Previously, employers had to continue weekly testing until there were no new cases detected for a 14-day period.  However, that requirement now only exists for a major outbreak (twenty or more cases within a 30-day period).  For employers operating within a large “exposed workplace,” this is a welcome change, especially given the difficulty of avoiding a single case for two weeks during the recent surge.

Exclusion Pay and Benefits

One of the largest clarifications from Cal/OSHA came with respect to their updated guidance on exclusion pay.  As set forth in the ETS, an employee with work-related COVID-19 close-contact exposure or who tests positive for COVID-19 may be eligible for exclusion pay and benefits for the period the employee is quarantined or isolated.  However, Cal/OSHA clarified that an employer is not required to provide exclusion pay and benefits if the employee is unable to work because of the employee’s COVID-19 symptoms.  In other words, a symptomatic employee out due to his or her own illness need not receive exclusion pay under the ETS.  Rather, exclusion pay is limited to the circumstances where an individual is able and willing to work, but for his or her exposure and risk of developing and/or spreading COVID-19.  The guidance further states that if an employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the ETS requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness.  In such cases, the guidance notes the employee may, however, be eligible for temporary disability or other benefits.

Cal/OSHA also answered a common question of how to determine whether exposure was “work-related” such that an employee may be eligible for exclusion pay.  The FAQs now indicate that an employer must show evidence to show that it is “more likely than not” that an employee’s COVID-19 exposure did not occur in the workplace.  Regarding enforcement of the exclusion pay obligation, the guidance only states that, as with any violation, Cal/OSHA has the authority to issue a citation and require abatement, and that whether employees or another agency can bring a claim in another forum is outside the scope of Cal/OSHA’s authority.

Final Takeaway

While the FAQs are helpful in clarifying and elaborating on employers’ obligations under the ETS, there are still many remaining unresolved questions.  For this reason, and given the fast-approaching February 1, 2021, end-date for relief from monetary penalties for violations, employers with any questions or concerns are strongly encouraged to consult with experienced employment counsel to ensure compliance with the ETS.

The legal landscape continues to evolve quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where applicable law currently and generally stands.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.