On November 19, the CalOSHA Standards Board unanimously adopted an emergency regulation on workplace safety regarding COVID-19. The emergency regulation is a mix of the requirements found in existing CalOSHA guidelines; incorporation of definitions and requirements from AB 685 (Reyes) passed by the Legislature this year; and brand-new employer mandates.
The emergency regulation now heads to the Office of Administrative Law (OAL) for approval. Stakeholders have a chance to comment in a 5-day window, and the OAL has 10 days to approve the regulation. The regulation becomes effective once the OAL approves it, so if OAL takes the full 10 days, it will go into effect on November 29. The emergency regulation stays in effect for 180 days, which at that point CalOSHA either needs to readopt it or go through the full regulatory process.
The Standards Board committed staff to convening an advisory committee made of stakeholders to refine the regulation and clear up confusion. The Standards Board did not state when this committee would be convened, or how many times it would meet, but indicated the desire to have it convened before the end of the year.
In brief, the emergency regulation includes the following elements:
- Employers will be required to have written COVID-19 Prevention Program, which can be incorporated into the IIPP or be a stand-alone document
- Employers must identify, evaluate and correct COVID-19 hazards, the first two with the participation of employees and their authorized representatives;
- Employers must investigate and “respond effectively to COVID-19 cases and notify employees who might have been exposed within one day. Employees who have not been exposed must be offered COVID-19 testing at no cost;
- COVID-19 cases in the workplace must be reported to local health authorities;
- Physical distancing and mandatory mask wearing are required, unless it is not possible. The burden will be on the employer to demonstrate that either physical distancing or mask-wearing are not feasible
- Return-to-work provisions for employee COVID-19 cases;
- There are specific and more stringent requirements for multiple COVID-19 infections and outbreaks in the workplace
- COVID-19 prevention procedures in employer-provided housing, such as labor camps, and employer-provided transportation to and from work.
There are many aspects of the emergency regulation that are arguable outside of CalOSHA’s authority, particularly with regard to the employer-provided housing and transportation sections as well as the employer-paid leave mandate. If OAL approves the regulation as-is, there will likely be legal challenges brought forward.
Please review the following documents and seek legal counsel to ensure you are in compliance with the regulation. If you have questions with regard to CCM’s engagement on this issue or the process moving forward, please contact us at (559) 592-3790.
Legal Memo Provided by Kahn, Soares, and Conway
Summary of Regulation by CA Citrus Mutual
Text of CalOSHA COVID-19 Emergency Regulation