New COVID-19 Emergency Regulations & CDC Guidance

For more information on Cal/OSHA’s new COVID-19 emergency regulations, as well as updated CDC guidance, please see the following from the law firm Terpstra Henderson.

Cal/OSHA Emergency Regulations – Cal/OSHA issued new COVID-19 Emergency Regulations, which apply to most employers and employees in California who are not subject to Cal/OSHA’s Aerosol Transmissible Diseases standard. Although there are a number of unanswered questions raised by the Regulations, Cal/OSHA issued pretty helpful FAQs, which can be viewed using the following link: https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html. The Regulations contain very specific and voluminous requirements. The following is a summary of the actions employers need to take immediately:

·         Create and implement a written COVID-19 Prevention Program.  Cal/OSHA has created a model Program, which is attached.  If you elect to use the model Program as a starting point, you must be sure to make all necessary modifications to address the specific operations and circumstances at your worksite.  The COVID-19 Prevention Program must either be a stand-alone policy or incorporated into your IIPP (which should be updated to include an Infection Prevention section).

·         Train your employees.  The Regulation contains a list of specific topics employers must include in their employee training.

·         Enforce face covering requirements.  Employers must either provide face coverings for their employees or reimburse employees for the cost of face coverings and also ensure that they are worn by employees in compliance with the State’s guidelines and Cal/OSHA’s Regs. 

·         Identify, evaluate and correct COVID-19 hazards.  Employers must have a process for screening and responding to employees with COVID-19 symptoms, implement State and local guidance regarding hazard prevention, conduct a site-specific evaluation of potential COVID-19 transmission, conduct periodic inspections, and correct COVID-19 hazards. 

·         Require physical distancing of employees.  Teleworking arrangements should be considered and permitted when appropriate.  For those employees who cannot telework, the employer must implement physical distancing requirements to the extent possible.  In addition to making physical changes, employers should consider staggering schedules, modifying meal and rest period times and other methods for reducing the number of people who are working in close proximity.

·         Implement engineering and administrative controls and provide PPE. The Regulations and FAQs specify the requirements employers must implement. 

·         Investigate / contract trace potential COVID-19 exposures in the workplace.  Employers must follow the requirements set forth in the Regulation for investigating when the COVID-19 case was last in the workplace, which employees may have been exposed, whether workplace conditions could have contributed to the risk of exposure and what corrections would reduce exposure.

·         Notify potentially exposed employees with 1 day of the exposure.  Written notification must be provided to potentially exposed employees in a way that protects the identity of the person who is the COVID-19 case.

·         Determine if there is an “Outbreak” or “Major Outbreak” in the “Exposed Workplace” in the “High-Risk Period.”  An Outbreak is defined as 3 or more COVID-19 cases in an Exposed Workplace within a 14-day period.  A Major Outbreak is defined as 20 or more COVID-19 cases in an Exposed Workplace within a 30-day period.  An Exposed Workplace is a work location, work area or common area used or accessed by a COVID-19 case during the High-Risk Period, including bathrooms, walkways, hallways, aisles, break or eating areas and waiting areas.  The High-Risk Period is either of the following:

·         For people who develop COVID-19 symptoms – from 2 days before the person first developed symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever (without the use of fever reducing medications) and symptoms have improved; or

·         For people who test positive but do not develop COVID-19 symptoms – from 2 days before until 10 days after the specimen for the person’s first positive test for COVID-19 was collected. 

·         Offer free testing to potentially exposed employees.  The testing requirements differ depending on whether the workplace experiences an Outbreak or a Major Outbreak.  Employers must ensure the employees are paid as though they are working, and that the employees comply with all applicable meal and rest period requirements, while participating the testing process. 

·         Report COVID-19 cases.  Employers are required to follow the reporting requirements of the Local Public Health Department and to report when there are 3 or more COVID-19 cases in the workplace within a 14-day period.  Employers must also comply with Cal-OSHA’s existing regulations regarding reporting of serious occupational illnesses.

·         Exclude COVID-19 Cases and employees with a COVID-19 Exposure from the workplace until the criteria for returning is satisfied.  The Regulations specify the timeframes for excluding COVID-19 Cases and employees with a COVID-19 Exposure from the workplace, as well as the requirements that the employer maintain the employee’s earnings, seniority and all other rights while they are out of work.  This requirement essentially creates a new paid leave right when the employee has exhausted other applicable leave rights.  The criteria for allowing employees to return to work is set forth in the Regulations.  Employers cannot require employees to receive a negative COVID-19 test result in order to return to work. 

·         Comply with Housing and Transportation prevention requirements.  Employers who provide housing and/or transportation to employees must take additional steps to prevent the potential for spreading COVID-19 among the relevant employees.

·         Keep accurate records regarding your compliance with all requirements.

 Additional information about the new Regulations can be viewed using the following link:  https://www.dir.ca.gov/DIRNews/2020/2020-99.html

CDC’s Updated Quarantine Recommendations – The CDC has updated its recommendations, as described below. To the extent the State’s standards are stricter than the CDC’s recommendations, employers must comply with the State’s standards.

Close Contact – Defined to include any of the following:

·         You were within 6 feet of someone who has COVID-19 for a total of 15 minutes or more in a 24-hour period starting from 2 days before the person experienced symptoms or had a positive test

·         You provided care at home to someone who is sick with COVID-19

·         You had direct physical contact with a person who has COVID-19 (hugged or kissed them)

·         You shared eating or drinking utensils with a person who has COVID-19

·         A person who has COVID-19 sneezed, coughed, or somehow got respiratory droplets on you

·         Quarantine Recommendations Following Close Contact – Although the CDC has issued the following recommendations for how long a person should quarantine after having Close Contact with a person who has COVID-19, employers should follow the recommendations of their Local Public Health Department, which may be more restrictive.

·         14 Days – The general recommendation is that a person should quarantine for 14 days after having Close Contact with a person who has COVID-19 because symptoms can appear 2 – 14 days after exposure.  If a person ends quarantine early, s/he should still watch for symptoms, wear a mask, stay at least 6 feet away from others, wash hands, avoid crowds and take other seps to prevent the spread of COVID-19 until 14 days have passed since the Close Contact occurred.

·         10 Days Without Testing – A person without symptoms who has not taken a COVID-19 test may end quarantine on day 10 following Close Contact.

·         7 Days With a Negative Test Result - A person without symptoms who has taken a COVID-19 test and received a negative test result may end quarantine on day 7 following Close Contact, provided the test occurred on day 5 or later.

·         Exception – Quarantine recommendations do not apply to people who have had COVID-19 in the past 3 months, have recovered and remain without COVID-19 symptoms unless they develop symptoms again.

·         Quarantine Recommendations Following Positive Test or Experiencing Symptoms – The CDC has issued the following recommendations for when a person can be around others / end isolation following a positive test or experiencing symptoms. 

·         Positive Test but No Symptoms

·         10 days after the positive viral test, provided the person continues to not have any symptoms

·         Positive Test with Symptoms

·         10 days since symptoms first appeared and

·         24 hours with no fever without the use of fever reducing medications and

·         Other symptoms are improving (except loss of taste and smell, which may persist for months after recovery)

·         Positive Test and Severely Ill with COVID-10 or Severely Weakened Immune System due to Health Condition or Medication

·         May need to stay home longer than 10 days and up to 20 days

·         May need to have testing to determine when to be around others

·         Re-Testing

·         Most people do not require testing to decide when they can be around others. However, if your healthcare provider recommends testing, they will let you know when you can resume being around others based on your test result.

·         People who have had COVID-19 in the past 3 months generally do not need to be retested after exposure through Close Contact unless they develop symptoms again.