May 1, 2021HHS limits the use of guidance documents in civil enforcement actions
Dec. 3, 2020
Note: This bulletin concerns recently approved emergency COVID-19 regulations in California. Employers that employ workers in California should check for updates on the state’s efforts to enforce compliance or interpret these regulations on an ongoing and regular basis.
On November 20, 2020, the Cal/OSHA Standards Board for California’s Department of Industrial Relations (“DIR”) unanimously adopted emergency temporary standards (“ETS”) relating to COVID-19 protections for employees. The ETS principally mandates that all employers must have and/or implement a written COVID-19 protection plan (“CPP”) that adheres to the ETS, plus a sweeping new paid leave requirement for workers that were possibly exposed to COVID-19. On November 30, 2020, the California Office of Administrative Law approved these standards, which became effective immediately.
The ETS constitutes a major and sudden regulatory update that dramatically shifts the employer landscape. All California employers should review the ETS as soon as possible, including an assessment of any prior CPP or incorporation of as much in any pre-existing mandatory Injury and Illness Protection Program. Employers should promptly work with counsel to ensure compliance with the ETS. This includes creating or revising their CPP, updating related company policies, and preparing other communications and procedures to properly implement the ETS’ expanded mandate.
The ETS applies to workers not otherwise covered by Cal/OSHA’s Aerosol Transmissible disease standards. Those standards specifically target medical and care facilities, laboratories, or other workers that perform “high hazard procedures,” as defined therein. The ETS also does not apply to places of employment with one employee who does not have contact with other persons, or employees working from home. As such, any employer that employs workers in California not subject to these exceptions, regardless of size, must at least have a written CPP that complies with the ETS, or face regulatory penalties among other legal and financial risks.
Moreover, the ETS cautions employers that its updates add to and do not otherwise limit or replace more stringent state and local mandates or guidance.
On November 30, 2020, the ETS became effective immediately. Cal/OSHA leadership acknowledged the time necessary for employers to understand and implement the updated regulations, and indicated that investigators will take employers’ “good faith efforts” at implementation into consideration. Nonetheless, Cal/OSHA somewhat ambiguously conditioned this statement by explaining that implementing testing requirements and “eliminating hazards” are essential, suggesting a tighter leash for those aspects. Employers should heed Cal/OSHA’s statement to make every effort necessary to ensure that they are in full compliance with the ETS and all preexisting COVID-19 standards and regulations, the latter of which may generate renewed focus following adoption of the updated standards.
The ETS is effective for 180 days, with a likely 60 to 120-day extension under Governor Newsom’s Executive Orders N-40-20 and N-66-20. Under this timeline, employers may need to maintain their compliance through as late as September 2021.
Content of the Regulations
Cal/OSHA provided the following guidance summarizing the ETS, the exact language of which we reprint below, mandating that employers’ written CPPs address the following:
Employers should note that this list merely constitutes the headings of the actual legislative text, which enumerates more detailed regulations, including notice requirements, investigation obligations, employer responsibility for certain COVID-19 testing costs, return to work criteria, and outbreak protocols. Employers should work with counsel to ensure their prevention plans and related implementation address these more granular requirements.
While the ETS’ enforcement timeline is immediate, we highlight two updates for their impact and time sensitivity:
a. Notice Requirements
In conjunction with other California reporting requirements, the ETS accelerates employers’ obligations to provide written notice of potential COVID-19 exposures to employees (or their authorized representatives), independent contractors, and other employers present at the worksite during the exposure period, as defined within the standards, within one (1) business day of the potential exposure.
The ETS also meaningfully expands the content and extent of information that employers must report to the DIR, applicable local health departments, the California Department of Public Health, and the National Institute for Occupational Safety and Health within 48 hours of a workplace COVID-19 outbreak. This includes employers’ obligations to walk a narrow line between maintaining the confidentiality of employee health information for certain notices while adhering to the ETS’ updated requirement to furnish unredacted medical records to the state, local, and federal bodies listed above. These updated reporting requirements will then similarly govern escalated testing requirements that are tiered depending on the size of an outbreak. Employers should work with counsel to ensure that they are properly complying with these notice requirements.
b. Paid Leave Requirements
The ETS requires employees who may have been exposed to COVID-19 or who test positive for the virus to remain excluded from the workplace for fourteen (14) days after the last known COVID-19 exposure. Employers must maintain all earnings, benefits, seniority, and other rights for employees who are excluded for this reason. Employers are not required to exclude employees from the worksite if they can temporarily reassign those employees to work where those employees do not have contact with other persons. As such, the ETS does not mandate its new paid sick leave requirements for those employees. The likely practical application here will at least encompass employees who are able to work from home. Finally, the ETS lists an exception where the employer can demonstrate the employee was not exposed at work. The ETS is unclear about how employers can apply this exception and overcome related workplace exposure presumptions, so employers should carefully monitor any further guidance on the issue.
Exceptions aside, this is a seismic update to preexisting supplemental COVID-19-related paid leave requirements. It does not specify applicable employer sizes like other state and federal legislation. More notably, the new standards do not enumerate any limits to the number of times an employee is absent due to the new mandatory exclusion periods.
The ETS does provide that employees may use existing employer-provided sick leave benefits, or other available public sources. The DIR’s FAQs clarify that an employer may require an employee subject to the ETS’ mandatory exclusion to first exhaust their paid sick leave benefits before receiving exclusion pay, in addition to other offsets. However, the significant takeaway is that employers must provide exclusion pay after the employee has exhausted those other benefits. This new paid leave mandate will likely face significant legal challenges, but employers should be prepared to comply with the ETS and the related cost implications while the standards remain in effect.
Cal/OSHA plans to publish future guidance on the ETS in the coming weeks and will convene a separate stakeholder meeting in December to address these updates. It separately refers employers to various resources, including one-page guidance documents, FAQs, upcoming webinars, and related contacts for further information.
In the meantime, employers that employ workers in California should contact a Nelson Mullins attorney with any questions about the ETS.
These materials have been prepared for informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Internet subscribers and online readers should not act upon this information without seeking professional counsel.