California has enacted regulations that require employers to comply with a series of employee health & safety and workers’ comp regulations.  The regulations are lengthy and complex. This newsletter highlights Cal/OSHA Emergency Temporary Standard (ETS) and COVID-19 ETS FAQ. The ETS is currently effective till October 2, 2021 and may be readopted twice thereby extending the effective life of this regulation.  Legal challenges to ETS by employer trade groups are pending in LA County and San Francisco Courts and a possible adverse ruling to the ETS may provide relief to employers.

Key Definitions:

1. “COVID-19” means coronavirus disease, an infectious disease caused by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).
2. “COVID-19 case” means a person who:
   1. Has a positive “COVID-19 test” as defined in this section;
   2. Is subject to a COVID-19-related order to isolate issued by a local or state health official; or
   3. Has died due to COVID-19, in the determination of a local health department . . .
3. “COVID-19 exposure” means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period.
4. “COVID-19 hazard” means exposure to potentially infectious material that may contain SARS-CoV-2
5. “Exposed workplace” means any work location, working area, or common area at work used or accessed by a COVID-19 case during the high-risk period.
6. “COVID-19 Outbreak” means three or more COVID-19 cases in an exposed workplace within a 14-day period. The employer shall contact the local health department immediately but no longer than 48 hours after the employer knows of three or more COVID-19 cases for guidance on preventing the further spread of COVID-19 within the workplace.

The COVID-19 Prevention Program: To comply with the ETS, an employer must develop a written COVID-19 Prevention Program. The employer must implement the following:

1. Communication to employees about the employer’s COVID-19 prevention procedures
2. Identify, evaluate, and correct COVID-19 hazards
3. Physical distancing of at least six feet unless it is not possible
4. Use of face coverings
5. Use engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk
6. Procedures to investigate and respond to COVID-19 cases in the workplace
7. Provide COVID-19 training to employees
8. Provide testing to employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas
9. Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk
10. Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required.
11. Return to work criteria.

 

COVID-19 ETS FAQ:

Q: What is the criteria for an employee exposed to a COVID-19 case in the workplace to return to work?
A: Employees with COVID-19 exposure may return to the workplace 14 days after the last known COVID-19 exposure.

Q: What training must an employer provide employees under the ETS?
A: Employee training must cover:

• Employer policies and procedures to protect employees from COVID-19 hazards.
• COVID-19 related benefit information, from either the employer or from federal, state, or local government, that may be available to employees impacted by COVID-19. Information on COVID-19 benefits such as paid sick leave and workers’ compensation benefits is posted on the Department of Industrial Relations’ Coronavirus Resources webpage.
• The fact that COVID-19 is an infectious disease that can be spread through the air when an infectious person talks or vocalizes, sneezes, coughs, or exhales; that COVID-19 may be transmitted when a person touches a contaminated object and then touches their eyes, nose, or mouth, although that is less common; and that an infectious person may show no symptoms.
• The importance of physical distancing and wearing face coverings.
• The fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing must be combined with other controls, including face coverings and hand hygiene, to be effective.
• The importance of frequent hand washing for at least 20 seconds and use of hand sanitizer when handwashing facilities are not available.
• Proper use of face coverings, and the fact that they are not respiratory protection.
• The symptoms of COVID-19 and the importance of not coming to work and getting tested if an employee has symptoms.

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:
  1. At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications.
  2. COVID-19 symptoms have improved; and
  3. 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 engineering controls and administrative controls must an employer implement?
A: Requirements include:

• Engineering controls
  • Install cleanable solid partitions that reduce the risk of aerosol transmission between fixed work locations where it is not possible to physically distance (such as Plexiglas barriers)
  • Maximize the amount of outside air to the extent feasible, unless there is poor outside air quality (an AQI of 100 or higher for any pollutant) or some other hazard to employees such as excessive heat or cold
• Administrative controls
  • Implement effective cleaning procedures of commonly touched surfaces, such as doorknobs, elevator buttons, equipment, tools, handrails, handles, controls, bathroom surfaces, and steering wheels
  • Inform employees and employees’ authorized representatives of cleaning and disinfection protocols and planned frequency and scope of cleaning
  • Minimize to the extent feasible the sharing of tools, equipment and vehicles
  • If tools, equipment and vehicles must be shared, disinfect between users

Cal/OSHA has posted a Model COVID-19 Prevention Program on its website for employers fill out and use.

Reference: https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html; https://www.dir.ca.gov/dosh/coronavirus/ETS.html; dl 01052021

DISCLAIMER:  The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice.   Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987.  Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997).  Our newsletters can be accessed at http://www.epaoshablog.com.  Your comments/questions are always welcome.  Please send them to sam@cellyservices.com.