New emergency temporary Cal/OSHA standards on COVID-19 infection prevention were approved by the State of California and went into effect on November 30, 2020; the regulations are provided in Sections (§) 3205 through 3205.4 of Title 8 of the California Code of Regulations (CCR). These new standards apply to most workers in California with the following exceptions:
- Places of employment with one employee who does not have contact with other persons.
- Employees working from home.
- Employees when covered by section 5199 (Aerosol Transmissible Diseases standard).
The new emergency temporary standards (ETS) establish requirements for employers and clarify what employers have to do to prevent workplace exposure to COVID-19 and to stop outbreaks. Some of the key definitions include the following (these important definitions are presented in italics throughout this document:
- COVID-19 case: (1) an individual with a positive COVID-19 test; (2) an individual who has been ordered to isolate by a public health official; or (3) an individual who has died from COVID-19.
- COVID-19 exposure: being within 6 feet of a COVID-19 case for greater than 15 minutes or greater in any 24-hour period within or overlapping with the “high-risk exposure period” regardless of the use of face coverings.
- COVID-19 hazard: exposure to potentially infectious materials that may contain SARS-CoV-2; includes airborne droplets and aerosols.
- COVID-19 test: a viral test for SARS-CoV-2 that is: (1) approved by the US Food and Drug Administration (FDA) or has an Emergency Use Authorization from the FDA to diagnose current infection withthe SARS-CoV-2 virus;and (2) is administered in accordance with the FDA approval or the FDA EmergencyUse Authorization as
- Exposed workplace: any work location, working area, or common area used or accessed by a COVID-19 case during the “high-risk exposure period.”
- High-risk exposure period: means the following time period:
- 2 days before symptoms first appeared to 10 days after symptoms first appeared, and 24 hours without fever, and symptoms improved; or
- For persons who test positive but never develop symptoms: 2 days before until 10 days after the specimen collection for a positive COVID-19 test.
The ETS require that the employer develop a written COVID-19 Prevention Program (CPP) that includes the following components:
- Development of a system for communicating with employees (§ 3205 (c)(1)).
- Procedures to be implemented for the identification and evaluation of COVID-19 hazards (§ 3205 (c)(2)).
- Procedures to be used when investigating and responding to COVID-19 cases in the workplace (§ 3205 (c)(3)).
- Methods to be used for the correction (and control) of COVID-19 hazards which must include procedures for the proper implementation / use of the following (§ 3205 (c)(4)):
- Physical distancing
- Face Coverings
- Engineering Controls
- Cleaning and Disinfecting
- Shared Tools, Equipment and PPE
- Hand Washing / Sanitizing
- Personal Protective Equipment
(5) Procedures to provide employees with needed training and instruction (§ 3205 (c)(5)).
(6) Reporting, recordkeeping, and access requirements / procedures (§ 3205 (c)(9)).
(7) Description of the procedures to be used for the exclusion of COVID-19 cases (§ 3205 (c)(10)).
(8) Employers’ return to work criteria (§ 3205 (c)(11)).
The new ETS also implement new requirements for handling multiple COVID-19 infections and outbreaks (§ 3205.1), as well as new requirements for handling major COVID-19 outbreaks (§ 3205.2).
The CPP may be a stand-alone document or the required components may be incorporated into an existing Injury Illness and Prevention Plan (IIPP) (California IIPP requirements are provided in § 3203 of Subchapter 7, Title 8 of the CCR).
Developing a robust, effective CPP will require a thorough evaluation and assessment of the potential site-specific COVID-19 hazards that exist at the employer’s facilities. Applying the same approach that is used to develop a Job Safety Analysis (JSA) or Job Hazard Analysis (JHA) is a good way to proactively identify the various hazards associated with specific tasks. A JSA is a recognized and OSHA-recommended practice, and one of the most efficient ways to implement this is to use job hazard analysis software such as JSABuilder. Using JSABuilder, or similar software will provide a format that will encourage employee participation, and will help ensure that the employer develops procedures that will be effective at identifying, then eliminating or minimizing, the hazards, including the spread of COVID-19.
Development of the CPP, and in particular the identification of possible hazards associated with COVID-19 exposure, should be done in a way that encourages and relies on employee input. Cal/OSHA encourages employers to engage with employees in the design, implementation and evolution of their COVID-19 Prevention Program. The ETS states that:
“The employer shall allow for employee and authorized employee representative participation in the identification and evaluation of COVID-19 hazards.”
Employee participation is critical in meeting the ETS requirement of identifying and evaluating those hazards through implementation of
“…a workplace-specific identification of all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards.”
The identification where exposures may occur must include:
- Places and times when people may congregate or come in contact with one another (e.g., meetings or trainings, entrances, bathrooms, hallways, aisles, walkways, elevators, break or eating areas, cool-down areas, and waiting areas).
- Employees’ potential workplace exposure to all persons at the workplace or who may enter the workplace, including coworkers, employees of other entities, members of the public, customers or clients, and independent contractors.
- How employees and other persons enter, leave, and travel through the workplace, in addition to addressing fixed work
In addition, the employer must evaluate existing COVID-19 prevention controls and determine the need for different or additional controls, and must conduct periodic inspections to identify unhealthy conditions, work practices, and work procedures related to COVID-19 and to ensure compliance with employers’ COVID-19 policies and procedures.
CalOSHA recommends using the form provided below to conduct the workplace-specific evaluations (Appendix A: Identification of COVID-19 Hazards form):
However, using a JSA or Activity Hazard Analysis format would provide the employer with a more robust framework for collecting the necessary information required for the CPP, i.e., identifying the various hazards, and could also help the employer to succinctly lay out the control measures to be implemented.
Using JSA software such as JSABuilder, would allow the employer to collect all of the hazards in one centralized location, and develop procedures that can then be shared across the entire organization. Developing and implementing a “system for communicating” is one of the key requirements of the ETS and must be reflected in the structure of the CPP.
As stated above, the ETS require that the employer’s CPP outline specific control measures that will be implemented to ensure personnel safety. These include physical distancing, face coverings, rules about sharing equipment and tools, hand washing, and cleaning and sanitizing. Each of these control measures can easily be described and presented through a JSA format. Here are some examples:
Implementing rules and tools to enforce physical distancing:
Designing and installing new engineering controls:
Implementing procedures to ensure that tools, equipment and PPE are not shared, or are decontaminated between uses/users:
And implementing procedures for required hand washing and sanitizing:
The ETS also require that the employer develop and implement effective procedures for investigating and responding to COVID-19 cases in the workplace. Employers are required to develop 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.
When there has been a COVID-19 case, the employer must take the following actions:
- Determine the day and time the COVID-19 case was last present, date of positive COVID-19 test/diagnosis, and date of first symptoms.
- Determine who may have had a COVID-19 exposure.
- Give notice of the potential COVID-19 exposure, within one business day, in a confidential way, to all employees who may have had COVID-19 exposure, as well as independent contractors and other employers present during the high-risk exposure period.
- Offer COVID-19 testing at no cost to employees who had potential COVID-19 exposure and provide them with the information on benefits (e.g., workers’ compensation law, the federal Families First Coronavirus Response Act).
- Investigate whether workplace conditions contributed to the risk of COVID-19 exposure and what could be done to reduce exposure to COVID-19 hazard.
- Personal identifying information of COVID-19 cases or persons with symptoms must be confidential. (Exceptions for reporting to and communicating with health officials).
- Employee medical records required by the CPP are kept confidential and are not disclosed or reported without the employee's express written consent to any person within or outside the workplace. (Exceptions for reporting to health officials).
Once COVID-19 hazards have been identified, the employer is required to correct (control) the hazards. Specifically, “Employers shall 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.”
Employers are also responsible for ensuring that the information about the CPP, and the potential COVID-19 hazards, is disseminated to the employees, visitors, contractors, etc. The employer shall provide effective training and instruction to employees that includes the following:
- COVID-19 policies and procedures to protect employees from COVID-19 hazards.
- COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws.
- COVID-19 is an infectious disease that can be spread through the air when an infectious person talks or vocalizes, sneezes, coughs, or exhales; and 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
- Methods of physical distancing of at least six feet and the importance of combining physical distancing with the wearing of face
- 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 does not work if the hands are
- Proper use of face coverings and the fact that face coverings are not respiratory protective
- COVID-19 symptoms, and the importance of not coming to work and obtaining a COVID-19 test if the employee has COVID-19
The CPP must also describe how the employer will comply with the ETS requirements for reporting, recordkeeping, and access. The employer is to report information about COVID-19 cases to the local health department when required by law and must follow CalOSHA reporting requirements for any serious illness or death of an employee occurring in a place of employment or in connection with any employment. The employer must keep a record of and track all COVID-19 cases with the employee’s information (including work location), the date of the last day at the workplace, and the date of a positive COVID-19 test. And the employer is to maintain records required by the ETS including steps taken to implement the written CPP.
Employers must ensure that COVID-19 cases are excluded from the workplace until the return to work requirements are met. The exclusion of COVID-19 cases is required to limit the transmission of COVID-19 in the workplace. The employer must 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 subsection (c)(10) and otherwise able and available to work, employers shall continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee's right to their former job status, as if the employee had not been removed from their job. Employers may exclude employees from this requirement if the employee is unable to work for reasons other than protecting others from COVID-19 transmission, and/or if the COVID-19 exposure is not work related.
And finally, the ETS establishes specific return to work criteria. These criteria vary depending on whether the individual is symptomatic or asymptomatic.
Symptomatic COVID-19 cases shall not return 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
Asymptomatic COVID-19 cases shall not return to work until:
- A minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.
A negative COVID-19 test shall not be required for an employee to return to work.
If required by state or local order, the employee shall not return to work until the period of isolation or quarantine is completed or the order is lifted. If no period was specified, then the period shall be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.
As part of the CPP, employers must develop procedures for managing multiple COVID-19 infections and COVID-19 outbreaks (§ 3205.1). The employer must follow the requirements for testing and notifying public health departments of workplace outbreaks and major outbreaks.
This section applies if:
- The facility has been identified by a local health department as the location of a COVID‑19 outbreak, or
- There have been three or more COVID-19 cases in an exposed workplace within a 14-day period.
This section applies until there are no new COVID-19 cases detected in a workplace for a 14-day period, and is applicable whether the infections are from an external source or are believed to be work-related.
The employer is to consider if the COVID-19 cases have been in the same exposed workplace; that is, were the COVID-19 cases in the same area at work during the 2 days prior to symptoms or prior to taking a test? The employer can consider the work areas discretely; the entire site does not need to be considered as a whole.
If the triggering criteria are met:
- Immediately provide testing to all employees in the exposed workplace (at no cost to the employees).
- COVID-19 testing shall consist of the following:
- Immediately test all employees in the exposed workplace, then test again one week later. Negative COVID-19 test results of employees with COVID-19 exposure shall not impact the duration of any quarantine period required by, or orders issued by, the local health
- After the first two required COVID-19 tests, employers are to provide continuing weekly COVID-19 testing of employees who remain at the workplace, until there are no new cases for a 14-day period.
- Employers are to provide additional testing when deemed necessary by Cal/OSHA
Exclusion of COVID-19 cases:
Employers are to ensure COVID-19 cases and employees who had COVID-19 exposure are excluded from the workplace in accordance with the CPP and return to work only in accordance with the return-to-work criteria.
Investigation of workplace COVID-19 illness
Employers are to immediately investigate and determine possible workplace-related factors that contributed to the COVID-19 outbreak in accordance with the CPP.
COVID-19 investigation, review and hazard correction
In addition, the employer must immediately perform a review of potentially relevant COVID-19 policies, procedures, and controls and implement changes as needed to prevent further spread of COVID-19. The investigation and review must be documented and include:
- Investigation of new or unabated COVID-19 hazards including:
- Leave policies and practices and whether employees are discouraged from remaining home when sick
- COVID-19 testing policies
- Insufficient outdoor air
- Insufficient air filtration
- Lack of physical distancing
(2) The review is to be updated every thirty days that the outbreak continues, in response to new information or to new or previously unrecognized COVID-19 hazards, or when otherwise necessary.
(3) The employer is to implement changes to reduce the transmission of COVID-19 based on the investigation and review. The employer should consider:
- Moving indoor tasks outdoors or having them performed remotely
- Increasing outdoor air supply when work is done indoors
- Improving air filtration
- Increasing physical distancing as much as possible
- Respiratory protection
The employer is to notify the local health department as follows:
- Immediately, but no longer than 48 hours after learning of three or more COVID-19 cases.
- Provide the local health department the total number of COVID-19 cases and for each COVID-19 case, the name, contact information, occupation, workplace location, business address, the hospitalization and/or fatality status, and North American Industry Classification System code of the workplace of the COVID-19 case, and any other information requested by the local health department. The employer is to continue to give notice to the local health department of any subsequent COVID-19 cases at the workplace.
Effective January 1, 2021, the employer shall provide all information to the local health department required by Labor Code section 6409.6.
The new Emergency Temporary Standards also address the employer’s responsibilities if there is a “major COVID-19 outbreak. These requirements can be found in Section 3205.2.
The new Emergency Temporary Standards (ETS) are now in effect in California. These rules are aimed and slowing the spread of COVID-19 and are intended to be implemented by all companies where their employees meet the definitions. CalOSHA is inspecting and aggressively fining companies for their inability to keep their employees safe from COVID-19, and we are seeing more and more companies being fined for not protecting their employees from the hazards of COVID-19. Implementing an effective and robust COVID-19 Prevention Plan (CPP) will not only ensure your company’s compliance with the ETS, but it will also help reduce the spread of COVID-19 and will help to keep your employees safe. Using reliable tools, such as OSHA’s guidance coupled with JSABuilder, is an effective way to gather the needed information, and provide it to your employees.
- California Dept. of Industrial Relations (DIR) - CalOSHA: Additional guidance materials: https://www.dir.ca.gov/dosh/coronavirus
- California DIR - CalOSHA Emergency Temporary Standards: https://www.dir.ca.gov/dosh/coronavirus/ETS.html
- California DIR - CalOSHA Factsheet: COVID-19 Emergency Temporary Standards –
What Employers Need to Know (Download PDF): https://www.dir.ca.gov/dosh/dosh_publications/COVIDOnePageFS.pdf
- Model COVID-19 Prevention Program: https://www.dir.ca.gov›dosh›dosh_publications›CPP
- California Industry Guidance: https://covid19.ca.gov/industry-guidance/
- California DIR – CalOSHA: Aerosol Transmissible Diseases: https://www.dir.ca.gov/title8/5199.html
- California DIR – CalOSHA: Aerosol Transmissible Diseases Factsheet (Download PDF): https://www.dir.ca.gov/dosh/dosh_publications/Aerosol-Diseases-fs.pdf
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