August 2022

State Updates

 

California adopts new COVID-19 prevention requirements

1/7/21

Author: ADP Admin/Tuesday, January 5, 2021/Categories: Compliance Corner , State Compliance Update, California

The Department of Industrial Relations (DIR) has adopted emergency rules related to protecting workers from COVID-19, including a requirement for employers to adopt a written prevention program. The emergency rules take effect immediately.

Coverage:

The emergency rules apply to all employees and places of employment, with the following exceptions:

  • Places of employment with one employee who doesn't have contact with other persons.
  • Employees working from home.
  • Employees covered by Cal/OSHA's Aerosol Transmissible Diseases standard.

Requirements for COVID-19 Prevention Program:

Under the emergency rules, employers must establish, implement, and maintain an effective, written COVID-19 Prevention Program, which may be integrated into the employer's Injury and Illness Program, or be maintained in a separate document. The DIR has published a model COVID-19 Prevention Program, which can be found here.

The written elements of a COVID-19 Prevention Program must include the following:

1. System for Communicating Information:

Employers must do all of the following in a form readily understandable by employees:

  • Ask employees to report to the employer, without fear of reprisal, COVID-19 symptoms, possible COVID-19 exposures (see text of rules for definition), and possible COVID-19 hazards (see text of rules for definition), at the workplace.
  • Describe procedures or policies for accommodating employees with medical or other conditions that put them at increased risk of severe COVID-19 illness.
  • Provide information about access to COVID-19 testing. If testing is required under these rules or another rule, the employer must inform affected employees of the reason for the COVID-19 testing and the possible consequences of a positive test.
  • Communicate information about COVID-19 hazards and the employer's COVID-19 policies and procedures to employees and to other employers, persons, and entities within or in contact with the employer's workplace

2. Identification and Evaluation of COVID-19 Hazards:

Employers must:

  • Allow for employee and authorized employee representative participation in the identification and evaluation of COVID-19 hazards.
  • Develop and implement a process for screening employees for and responding to employees with COVID-19 symptoms (see text of rules for definition). The employer may ask employees to evaluate their own symptoms before reporting to work. If the employer conducts screening at the workplace, the employer must ensure that face coverings are used during screening by both screeners and employees and, if temperatures are measured, that non-contact thermometers are used.
  • Develop policies and procedures to respond effectively and immediately to individuals at the workplace with a confirmed COVID-19 case (see text of rules for definition) to prevent or reduce the risk of transmission in the workplace.
  • Conduct a workplace-specific identification of all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards. Employers must treat all persons, regardless of symptoms or negative COVID-19 test results, as potentially infectious, including:
  • For indoor locations, evaluate how to maximize the quantity of outdoor air and whether it is possible to increase filtration efficiency to the highest level compatible with the existing ventilation system.
  • Review applicable orders and guidance from the state and the local health department related to COVID-19 hazards and prevention, including information specific to the employer's industry, location, and operations.
  • Evaluate existing COVID-19 prevention controls at the workplace and the need for different or additional controls.
  • Conduct periodic inspections as needed to identify unhealthy conditions, work practices, and work procedures related to COVID-19 and to ensure compliance with employers' COVID-19 policies and procedures.

3. Investigating and Responding to Cases in the Workplace:

Employers must:

  • Have an effective procedure to investigate COVID-19 cases in the workplace. This includes procedures for verifying COVID-19 case status, receiving information regarding COVID-19 test results and onset of COVID-19 symptoms, and identifying and recording COVID-19 cases.
  • Take the following actions when there has been a COVID-19 case in the workplace:
  • Ensure that personal identifying information of COVID-19 cases or persons with COVID-19 symptoms is kept confidential. All COVID-19 testing or related medical services provided by the employer must be provided in a manner that ensures employee confidentiality. Employers must also ensure that all employee medical records required are kept confidential and aren't disclosed or reported without the employee's express written consent to any person within or outside the workplace. However, unredacted information on COVID-19 cases and medical records must be provided to the local and state health department, DIR, and the National Institute for Occupational Safety and Health (NIOSH), or as otherwise required by law immediately upon request.

4. Correction of COVID-19 Hazards:

Employers must implement effective policies and/or procedures for correcting unsafe or unhealthy conditions, work practices, policies and procedures in a timely manner based on the severity of the hazard.

5. Training and Instruction:

Employers must provide effective training and instruction to employees that includes:

  • The employer's policies and procedures to protect employees from COVID-19 hazards.
  • Information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws.
  • The fact that COVID-19 is an infectious disease that can be spread through the air when an infectious person talks or vocalizes, sneezes, coughs, or exhales; that COVID-19 may be transmitted when a person touches a contaminated object and then touches their eyes, nose, or mouth; and that an infectious person may have no symptoms.
  • Methods of physical distancing of at least six feet and the importance of combining physical distancing with the wearing of face coverings.
  • The fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing must be combined with other controls, including face coverings and hand hygiene, to be effective.
  • The importance of frequent hand washing with soap and water for at least 20 seconds and using hand sanitizer when employees do not have immediate access to a sink or hand washing facility, and that hand sanitizer doesn't work if the hands are soiled.
  • Proper use of face coverings and the fact that face coverings are not respiratory protective equipment.
  • COVID-19 symptoms, and the importance of not coming to work and obtaining a COVID-19 test if the employee has any COVID-19 symptoms.

6. Physical Distancing:

Employees must be separated from other persons by at least six feet, except where an employer can demonstrate that six feet of separation isn't possible, and except for momentary exposure while persons are in movement. Methods of physical distancing include:

  • Telework or other remote work arrangements;
  • Reducing the number of persons in an area at one time, including visitors;
  • Visual cues such as signs and floor markings to indicate where employees and others should be located or their direction and path of travel;
  • Staggered arrival, departure, work, and break times; and
  • Adjusted work processes or procedures, such as reducing production speed, to allow greater distance between employees.

When it isn't possible to maintain a distance of at least six feet, individuals must be as far apart as possible.

7. Face Coverings:

Employers must provide face coverings and ensure they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person, and where required by orders from the state or local health department. Employers must ensure face coverings are clean and undamaged. Face shields aren't a replacement for face coverings, although they may be worn together for additional protection.

The following are exceptions to the face coverings requirement:

  • When an employee is alone in a room.
  • While eating and drinking at the workplace, provided employees are at least six feet apart and outside air supply to the area, if indoors, has been maximized to the extent possible.
  • Employees wearing respiratory protection in accordance with state rules.
  • Employees who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person. Such employees must wear an effective non-restrictive alternative, such as a face shield with a drape on the bottom, if their condition or disability permits it. Any employee not wearing a face covering, face shield with a drape or other effective alternative, or respiratory protection, for any reason, must be at least six feet apart from all other persons unless the unmasked employee is tested at least twice weekly for COVID-19.
  • Specific tasks which cannot feasibly be performed with a face covering. This exception is limited to the time period in which such tasks are actually being performed, and the unmasked employee must be at least six feet away from all other persons unless unmasked employees are tested at least twice weekly for COVID-19.

Note: The California Department of Public Health has issued guidance for employers that identifies examples when wearing a face covering is likely not feasible.

Employers are prohibited from preventing any employee from wearing a face covering when not required by the rules, unless it would create a safety hazard, such as interfering with the safe operation of equipment.

Employers must implement measures to communicate to non-employees the face coverings requirements on their premises. Additionally, employers must implement policies and procedures to minimize employee exposure to COVID-19 hazards originating from any person not wearing a face covering, including a member of the public.

8. Other Controls and Personal Protective Equipment:

At fixed work locations where it isn't possible to maintain the physical distancing requirement at all times, the employer must install cleanable solid partitions that effectively reduce aerosol transmission between the employee and other persons.

For buildings with mechanical and/or natural ventilation, employers must maximize the quantity of outside air provided to the extent feasible, except when the United States Environmental Protection Agency (EPA) Air Quality Index is greater than 100 for any pollutant or if opening windows or letting in outdoor air by other means would cause a hazard to employees, for instance from excessive heat or cold.

Employers must implement cleaning and disinfecting procedures, which require:

  • Identifying and regularly cleaning and disinfecting frequently touched surfaces and objects, such as doorknobs, elevator buttons, equipment, tools, handrails, handles, controls, bathroom surfaces, and steering wheels. The employer must inform employees and authorized employee representatives of cleaning and disinfection protocols, including the planned frequency and scope of regular cleaning and disinfection.
  • Prohibiting the sharing of personal protective equipment and to the extent feasible, items that employees come in regular physical contact with such as phones, headsets, desks, keyboards, writing materials, instruments, and tools. When it isn't feasible to prevent sharing, it must be minimized, and such items and equipment must be disinfected between uses by different people. Sharing of vehicles must be minimized to the extent feasible, and high touch points (steering wheel, door handles, seatbelt buckles, armrests, shifter, etc.) must be disinfected between users.
  • Cleaning and disinfection of areas, material, and equipment used by a COVID-19 case during the high-risk exposure period.

To protect employees from COVID-19 hazards, the employer must evaluate its handwashing facilities, determine the need for additional facilities, encourage and allow time for employee handwashing, and provide employees with an effective hand sanitizer. Employers must encourage employees to wash their hands for at least 20 seconds each time. The use of hand sanitizers with methyl alcohol is prohibited.

Employers must evaluate the need for personal protective equipment to prevent exposure to COVID-19 hazards, such as gloves, goggles, and face shields, and provide such personal protective equipment as needed.

Employers must evaluate the need for respiratory protection in accordance with state rules when the physical distancing requirements aren't feasible or aren't maintained. Employers must provide and ensure use of respirators in accordance with state rules when deemed necessary by the DIR through the Issuance of Order to Take Special Action.

Employers must provide and ensure use of eye protection and respiratory protection in accordance with state rules when employees are exposed to procedures that may aerosolize potentially infectious material such as saliva or respiratory tract fluids.

9. Reporting, Recordkeeping, and Access:

Employers must:

  • Report information about COVID-19 cases at the workplace to the local health department whenever required by law and must provide any related information requested by the local health department.
  • Report immediately to the DIR any COVID-19-related serious illnesses or death, as defined, of an employee occurring in a place of employment or in connection with any employment.
  • Maintain records of the steps taken to implement the written COVID-19 Prevention Program.
  • Make the written COVID-19 Prevention Program available at the workplace to employees, authorized employee representatives, and to representatives of the DIR immediately upon request.
  • Keep a record of and track all COVID-19 cases with the employee's name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. The information must be made available to employees, authorized employee representatives, or as otherwise required by law, with personal identifying information removed.

10. Exclusion of COVID-19 Cases:

Employers must:

  • Ensure that COVID-19 cases are excluded from the workplace until the return to work requirements are met (see next section).
  • Exclude employees with COVID-19 exposure from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case.

For employees excluded from work under these rules and otherwise able and available to work, employers must continue and maintain an employee's earnings, seniority, and all other employee rights and benefits as if the employee had not been removed from their job. Employers may use employer-provided employee sick leave benefits for this purpose and consider benefit payments from public sources in determining how to maintain earnings, rights and benefits, where permitted by law and when not covered by workers' compensation. However, these requirements don't apply:

  • To any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from possible COVID-19 transmission.
  • Where the employer demonstrates that the COVID-19 exposure isn't work related.

At the time of exclusion, the employer must provide the employee information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws. Employers must also inform employees of the rights and benefits extended to employees excluded from work under the rules and otherwise able and available to work.

Employees who haven't been excluded or isolated by the local health department need not be excluded by the employer, if they are temporarily reassigned to work where they don't have contact with other persons until the return to work requirements are met.

11. Return to Work Criteria:

COVID-19 cases with COVID-19 symptoms are prohibited from returning to work until:

  • At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
  • COVID-19 symptoms have improved; and
  • At least 10 days have passed since COVID-19 symptoms first appeared.

COVID-19 cases who tested positive but never developed COVID-19 symptoms are prohibited from returning to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test. The rules prohibit requiring a negative COVID-19 test for an employee to return to work.

If an order to isolate or quarantine an employee is issued by a local or state health official, the employee is prohibited from returning to work until the period of isolation or quarantine is completed or the order is lifted. If no period was specified, then the period is 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.

If there are no violations of local or state health officer orders for isolation or quarantine, the DIR may, upon request, allow employees to return to work on the basis that the removal of an employee would create undue risk to a community's health and safety. In such cases, the employer must develop, implement, and maintain effective control measures to prevent transmission in the workplace including providing isolation for the employee at the workplace and, if isolation isn't possible, the use of respiratory protection in the workplace.

Other Rules:

The emergency rules also address:

  • Requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).
  • Specific requirements for infection prevention in employer-provided housing and transportation to and from work.

See the text of the rules for details.

Compliance Recommendations:

California employers should read the rules in full and develop and implement a written COVID-19 Prevention Program that complies. Please contact your dedicated service professional with any questions.

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Tags: 1/7/21

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