EMPLOYER FAQ’S

Reminder That Cal/OSHA’s COVID-19 Emergency Temporary Standards Are In Effect

On January 25, 2021, Governor Newsom lifted the Regional Stay At Home Order in California. California businesses are now to revert to the Blueprint for a Safer Economy model introduced last year. As a reminder as your businesses re-open, make sure to review and familiarize yourselves with Cal/OSHA’s Emergency Temporary Standards. Below are some answers to questions that we have been frequently asked. We will continue to update you as more guidelines are released.

For any guidance needed, please contact us.

Who is covered?

Q: Which employers must comply with the Emergency Temporary Standards?

A: All employers, employees, and to all places of employment with three exceptions: 1) Workplaces where there is only one employee who does not have contact with other people; 2) Employees who are working from home; 3) Employees who are covered by the Aerosol Transmissible Diseases regulation.

Q: Does the Emergency Temporary Standards apply for employees who split their work time between home and the workplace?

A: Yes, however, the regulation applies only when the employees work at the workplace, or are exposed at work, but not when they work from home.

What if an employer has a COVID-19 case?

Q: What must an employer do to investigate and respond to a COVID-19 case?

A: Investigating and responding to a COVID-19 case in the workplace includes the following:

• Determining when the COVID-19 case was last in the workplace, and if possible the date of testing and onset of symptoms.
• Determining which employees may have been exposed to COVID-19.
• Notifying employees of any potential exposures within one business day (and notifying any other employer who has potentially exposed employees in the workplace).
• Offer testing to potentially exposed employees at no cost and during working hours.
• Exclude from the workplace employees who test positive for COVID-19 and employees with COVID-19 exposure, following return to work criteria for returning excluded employees to work.
• Investigate the exposure, whether workplace conditions could have contributed to the risk of exposure, and what corrections would reduce exposure.

Q: Who do employers notify of COVID-19 cases?

A: Within one business day, employers must give notice of potential COVID-19 exposure in a way that does not reveal any personal identifying information of the COVID-19 case, to the following: 1) All employees who may have had COVID-19 exposure and their authorized representatives; 2) Independent contractors and other employers present at the workplace during the high-risk exposure period. Note that AB 685, which came into law on January 1, 2021, requires employers to provide this notice to all employees and independent contractors who were at the workplace during the COVID-19 case’s infectious period (currently defined as 2 days before symptom onset and 10 days thereafter or 2 days before the collection of the specimen for the positive test and 10 days thereafter if no symptoms).

Q: What are the testing requirements in the Emergency Temporary Standards?

A: An employer’s testing obligations are the following:

• Inform all employees on how they can obtain testing. This could be through the employer, local health department, a health plan, or at a community testing center. The only obligation to all employees is to provide information.
• As to employees who may have a COVID-19 work-related exposure (currently defined as those employees who were within 6 feet of the COVID-19 case for 15 minutes or more cumulatively in a 24 hour period during the “high risk exposure” period, which is currently defined as 2 days before symptom onset and 10 days thereafter or 2 days before the collection of the specimen for the positive test and 10 days thereafter if no symptoms), employers must offer testing to an employee at no cost and during working hours.
• Provide periodic (at least weekly or twice per week depending on the magnitude of the outbreak) COVID-19 testing to all employees in an “exposed workplace” during an outbreak (see below for information regarding an “outbreak”).
• Testing must be provided in a manner that ensures employee confidentiality.

Q: Does the employer have to provide testing to employees at their work location?

A: No. The employer may provide testing to employees at a testing site separate from their work location.

Q: Can employers send their employees to a free and/or offsite testing site for testing (e.g., run by their county) and is this considered to be “at no cost to employees?”

A: Yes, as long as employees incur no cost for the testing. Ensuring that an employee does not incur costs would include paying employees’ wages for their time to get tested, as well as travel time to and from the testing site. It would also include reimbursing employees for travel costs to the testing site (e.g., mileage or public transportation costs).

Q: What do employers do if employees refuse to take the tests required by various provisions of the emergency regulations?

A: An employer that offers a test at no cost to the employee does not violate the regulation if an employee declines or refuses to take it. The employer is not required to obtain a signed declination from employees who refuse to take a COVID-19 test offered by the employer.

Q: What kinds of tests are acceptable to comply with the regulations’ testing requirements?

A: Tests approved by the United States Food and Drug Administration (FDA) or that have an Emergency Use Authorization (EUA) from the FDA to diagnose current infection with the SARS-CoV-2 virus may be used. These include both PCR and antigen tests. The test must be administered in accordance with the FDA approval or FDA EUA, as applicable.

Q: Where can I find COVID-19 testing for my employees?

A: Some of the simplest ways to get testing include the following:

At the California Department of Public Health or the National Association of County and City Health Officials website, click on the county or city health department in the area where you would like employees to be tested. Many local health departments maintain websites with up-to-date information on testing locations. Click on the appropriate health department’s website and search for testing sites. Follow instructions to identify testing locations and schedule a test. All counties offer free testing for individuals at designated testing sites.

Note that in most cases, prior to scheduling a testing appointment, the employee who will be getting tested is required to answer questions in an online form about whether or not they have symptoms, whether they have been exposed to someone with COVID-19, etc. To complete the online scheduling process, the employee also must provide their consent to receive the test.

An employer can partner with a medical provider to establish a testing program. Some providers offer on-site testing of employees.

However testing is arranged, employers must ensure employees do not incur any costs for COVID-19 testing.

Q: Are there resources available for employers who need to test a large number of employees on a regular basis?

A: The State of California Valencia Branch Laboratory (VBL) opened on October 30, 2020 to increase the state’s COVID-19 testing capacity and reduce test turnaround time.

Large employers can partner with VBL to set up on-site testing of employees. Getting the testing site set up requires approximately 2-3 weeks to complete. Visit the Valencia Branch Laboratory website for more information. To set up a local testing site, get started by filling out the Valencia Lab Interest Form.

What if an employer has more than one COVID-19 case?

Q: In an outbreak (currently defined as three or more COVID-19 cases within a 14-day period or identified as an outbreak by a local health department), what are an employer’s requirements?

A: In addition to the requirements for non-outbreak settings (see above), an employer must:

• Immediately provide testing to all employees in the exposed workplace and exclude positive cases and exposures from work; repeat the testing one week later; and
• Continue testing employees at least weekly until the workplace no longer qualifies as an outbreak.
• The employer must also contact the local health department and provide:
• The total number of COVID-19 cases.
• 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.
• Any other information requested by the local health department.
• The employer shall continue to give notice to the local health department of any subsequent COVID-19 cases at the workplace.

Q: What are an employer’s requirements in a major outbreak (currently defined as 20 or more COVID-19 cases in within a 30-day period)?

A:  In addition to the requirements for non-outbreak settings (see above), an employer must:

• Provide testing to all employees in the exposed workplace at least twice weekly and exclude positive cases and exposures until there are no new cases detected for a 14-day period;
• Implement ventilation changes to mechanical ventilation systems including increasing filtration efficiency to at least MERV-13, or the highest efficiency compatible with the ventilation system;
• Evaluate whether HEPA air filtration units are needed in poorly ventilated areas;
• Determine the need for a respiratory protection program or changes to an existing respiratory protection program under section 5144 to address COVID-19 hazards; and
• Consider halting all or part of operations to control the virus.

Who should stay home from work and when can they come back?

Q: When must an employer exclude employees from work?

A: Employers must exclude from work employees who (1) are COVID-19 cases, or (2) have had COVID-19 exposure from the workplace.

Q: What are the criteria for a COVID-19 case to return to work?

A: A COVID-19 case may return to work when any of the following occur:

• For employees with symptoms all of these conditions must be met:
  • 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
• For employees without symptoms, at least 10 days have passed since the COVID-19 case’s first positive test
• If a licensed health care professional determines the person is not/is no longer a COVID-19 case, in accordance with California Department of Public Health (CDPH) or local health department recommendations.

Q: What are the criteria for an employee exposed to a COVID-19 case in the workplace to return to work?

A: Applying Executive Order N-84-20 and current CDPH quarantine guidance, while a 14-day quarantine is recommended, an exposed employee who does not develop symptoms of COVID-19 may return to work after 10 days have passed since the date of last known exposure. Additionally, CDPH has provided guidance permitting health care, emergency response and social services workers to return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage.

Q: Is a negative test required for an employee to return to work?

A: No, the Emergency Temporary Standards does not require an employee to have a negative test to return to work.

Do employers pay employees who are excluded from work?

Q: Must an employer pay an employee while the employee is excluded from work?

A: If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits.

Q: Does an employer have to “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” if the employee is unable to work because of his or her COVID-19 symptoms?

A: No, if an employee is unable to work because of his or her COVID-19 symptoms, then he or she would not be eligible for exclusion pay and benefits. The employee, however, may be eligible for Workers’ Compensation or State Disability Insurance benefits.

Q: How long does an employee with COVID-19 exposure, or who tests positive for COVID-19 from the workplace, receive pay while excluded from the workplace?

A: An employee would typically receive pay for the period the employee is quarantined, which could be up to 14 days. If an employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness. The employee, however, may be eligible for temporary disability or other benefits.

Q: How are employers proving that a COVID-19 exposure is not work related and rebutting the presumption under SB 1159 related?

A:  SB 1159 provides a rebuttable presumption for certain workers and workplaces that an employee’s COVID-19-related illness is an occupational injury entitling the employee to workers’ compensation benefits. Rebutting that presumption and proving that COVID-19 exposure is not work related to avoid the Emergency Temporary Standards’ exclusion pay requirement involves an employer conducting comparable investigations and producing comparable evidence to show it is more likely than not that an employee’s COVID-19 exposure did not occur in the workplace.

What are some other things employers should be doing?

• Develop a COVID-19 Prevention Plan
• Communicate to employees about the COVID-19 Prevention Plan
• Conduct a site inspection to identify, evaluate, and correct potential COVID-19 hazards
• Ensure physical distancing of 6 feet
• Ensure compliance with mask requirements
• Implement controls to reduce transmission (barriers, handwashing stations, visual cues on the ground, alternating or staggered shifts, cleaning procedures for frequently touched services, etc.)
• Properly accommodate employees who may have elevated risk factors
• Establish cleaning and disinfection protocols to use in the event of a COVID-19 case

ERICA M. SOROSKY esorosky@ptwww.com (949) 851-7271	ERIN K. OYAMA eoyama@ptwww.com (949) 851-7288