Office of Administrative Law Approves Cal/OSHA COVID-19 Emergency Temporary Regulations

November 30, 2020

On 11/30/2020, the Office of Administrative Law (OAL) approved Cal/OSHA’s proposed temporary emergency regulations regarding COVID-19 prevention and outbreaks. These regulations are effective immediately and are located in the new Title 8 sections 3205 (COVID-19 Prevention), 3205.1 (Multiple COVID-19 Infections and Outbreaks), 3205.2 (Major COVID-19 Outbreaks) 3205.3 (COVID-19 Prevention in Employer-Provided Housing) and 3205.4 (COVID-19 Prevention in Employer-Provided Transportation to and from Work) of the California Code of Regulations. The Occupational Safety and Health Standards Board will have an opportunity to readopt the temporary regulations. Emergency regulations generally remain in effect for 180 days unless OAL approves a re-adoption of the emergency regulation during that time period.

These regulations apply to most workers in California, with some exceptions. The regulations do not apply to employees working from home, sites where one employee does not have contact with others, and employees when covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. The regulations compliment the Legislature’s recent efforts in enacting AB 685, by providing a detailed framework for preventing workplace outbreaks, and mandating timely communication with employees and local public health departments. Sections 3205.1 and 3205.2 set forth requirements for notifying public health departments of workplace outbreaks defined as three or more cases in a workplace in a 14-day period, and major outbreaks defined as 20 or more cases within a 30-day period.

Under section 3205, employers must establish, implement, and maintain a written COVID-19 Prevention Program that addresses the following topics:

1. System for communicating information to employees about COVID-19 prevention, hazards in the workplace, testing, policies and procedures for accommodation, and reporting without fear of reprisal.

2. Identification and evaluation of COVID-19 hazards.

3. Investigating and responding to COVID-19 cases in the workplace.

4. Correction of COVID-19 hazards.

5. Training and instruction.

6. Physical distancing.

7. Face coverings.

8. Other engineering controls, administrative controls, and personal protective equipment.

9. Reporting, recordkeeping, and access.

10. Exclusion of employees with COVID-19 from workplace.

11. Return to work criteria.

It is imperative that employers familiarize themselves with these new regulations as soon as possible to mitigate potential exposure. Existing policies and procedures should be reevaluated to confirm that they comply with the myriad of detailed requirements. The failure to do so on the part of the employer may expose the employer to a potential serious and willful claim, and citations from Cal/OSHA.