California to Issue Emergency COVID-19 Workplace Safety Rule

November 20, 2020

California’s Occupational Safety and Health Standards Board has approved an “aggressive” emergency COVID-19 workplace rule that will take effect in December and could become the federal OSHA standard under a Biden administration.

The rule requires employers to implement effective COVID prevention programs, which can be part of an employer’s existing injury and illness prevention program, and must include, among other things:

  • A system for communicating with employees;
  • The identification and evaluation of COVID hazards;
  • A process for investigating and responding to COVID cases in the workplace;
  • Procedures for correcting COVID hazards; and
  • Employee training, physical distancing, face coverings, and other personal protective equipment.

Employees will be required to wear masks when indoors and outdoors if working within 6 feet of another person.

Workplaces that have an outbreak of COVID cases must take additional precautions. 

  • If a workplace has three COVID cases within 14 days, free testing must be offered to workers and continue at least once a week until no new cases are found for at least two weeks.

  • If a workplace has 20 more COVID cases within 30 days, CA employers must offer free tests to workers at least twice a week until the site goes 14 days without a new virus case, install hospital-grade air filters if the ventilation system can handle the air flow, and determine the workplace factors that contributed to the outbreak.

Employers must continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits for employees who test positive and are excluded from the workplace.  Employers may use employer-provided employee sick leave benefits for this purpose and may consider benefit payments from public sources in determining how to maintain earnings, rights and benefits, where permitted by law. 

The temporary rule will stay in effect for 180 days and can be renewed every 90 days until the state decides the emergency has ended or a permanent rule is enacted.

California is the fourth state to implement emergency COVID workplace rules after Virginia, Michigan, and Oregon.

Meanwhile, the latest Employer Pulse Survey from Littler Mendelson highlighted increased employer anxiety over compliance with proliferating COVID-19 laws and regulations.  Leave laws and regulations, in particular, have vexed employers, as more than half of the companies surveyed reported facing challenges in complying with leave laws, scheduling regulations, and requests from employees for special accommodations related to the pandemic. 

Companies with more than 10,000 employees had a higher rate of expressed concern about employment law compliance.  Additionally, more than 80% of respondents from nonessential businesses said they don’t plan on requiring employees to come back to the office any time soon. 

Outlook:  An incoming Biden administration is expected to issue several new virus safety measures, including an emergency safety standard through the Occupational Safety and Health Administration.  A new COVID-19 relief bill could also include new paid sick and family leave regulations.  Employers should expect continued and increased regulations targeting workplace safety as the COVID-19 pandemic continues and a new administration begins.