Cal/OSHA Guidance Regarding COVID-19 in the Workplace

Posted on April 16, 2020 by Theresa Jordan

By Andrew Sommer, Megan Shaked, and Beeta Lashkari

Last week, Cal/OSHA updated its website, providing additional guidance on how to protect Californian employee from spread of COVID-19 in the workplace. Additionally, earlier this week, Division Chief Doug Parker sent an unpublished letter, clarifying Cal/OSHA’s recording/reporting requirements for coronavirus-related illnesses. Below is a summary of both pieces of guidance from Cal/OSHA:

Additional Cal/OSHA Guidance on COVID-19 in the Workplace

Starting with the new guidance on its website, Cal/OSHA provided additional information on how to protect workers from COVID-19. While Cal/OSHA previously issued guidance on requirements under its Aerosol Transmissible Diseases (“ATD”) standard specific to COVID-19, as well as general guidelines, it has now released industry-specific guidance and ATD model plans. The industry-specific guidance includes:

The ATD model plans are fillable pages provided in Word format and include an exposure control plan, laboratory biosafety plan, and “referring employer” model written program.

As general guidance, Cal/OSHA’s website also includes interim guidelines for general industry on COVID-19. These interim guidelines make clear that, for employers covered by the ATD standard, employers must protect employees from airborne infectious diseases such as COVID-19 and pathogens transmitted by aerosols. The ATD standard applies to:

hospitals, skilled nursing facilities, clinics, medical offices, outpatient medical facilities, home health care, long-term health care facilities, hospices, medical outreach services, medical transport and emergency medical services;
certain laboratories, public health services and police services that are reasonably anticipated to expose employees to an aerosol transmissible disease;
correctional facilities, homeless shelters, and drug treatment programs; and
any other locations when Cal/OSHA informs employers in writing that they must comply with the ATD standard.

Additionally, for employers NOT covered by the ATD standard, Cal/OSHA advises employers to follow the Centers for Disease Control and Prevention (“CDC”) interim guidance for businesses and employers to plan and response to coronavirus disease. This guidance is being updated regularly, and provides strategies for employers to:

prepare workplaces for a COVID-19 outbreak;
reduce transmission among employees;
maintain health business operations; and
maintain a healthy work environment.

Cal/OSHA specifically calls out certain infection prevention measures contained in the CDC guidance, including:

Actively encouraging sick employees to stay home
Sending employees with acute respiratory illness symptoms home immediately
Providing information and training to employees on:
- - Cough and sneeze etiquette
  - Hand hygiene
  - Avoiding close contact with sick persons
  - Avoiding touching eyes, nose, and mouth with unwashed hands
  - Avoiding sharing personal items with co-workers (i.e. dishes, cups, utensils, towels)
  - Providing tissues, no-touch disposal trash cans and hand sanitizer for use by employees
Performing routine environmental cleaning of shared workplace equipment and furniture (disinfection beyond routine cleaning is not recommended)
Advising employees to check CDC’s Traveler’s Health Notices prior to travel

The CDC guidelines also contain recommendations for creating an infectious disease outbreak response plan to be followed in the event of an outbreak. These response plans include one or more of the following:

Allowing flexible worksites, telecommuting and flexible work hours to increase physical distance among employees
Using other methods of minimizing exposure between employees, and between employees and the public
Postponing or canceling large work-related meetings or events

Importantly, Cal/OSHA’s interim guidelines for general industry includes a section on the various existing Cal/OSHA regulations that apply to all employers and that may be applicable to protect employees from exposure to Coronavirus where there is a significant risk in the workplace. Not the least bit surprising, at the top of that section is Cal/OSHA’s Injury and Illness Prevention Program (“IIPP”) standard, one of Cal/OSHA most often-cited regulations every year. In the current context, Cal/OSHA advises that employers are required to determine if COVID-19 infection is a hazard in their workplace, and if it is, they must implement measures to prevent or reduce the risk of infection, such as by implementing CDC recommended actions (discussed above), and provide training to employees on their COVID-19 infection prevention methods. Additional regulations that might apply include those related to washing facilities, personal protective equipment, and the control of harmful exposures.

Cal/OSHA Recordkeeping and Reporting of COVID-19 Cases

In an unpublished letter, Division Chief Doug Parker provides feedback about the Cal/OSHA Recordkeeping and Reporting implications of COVID-19 cases involving California employees. First, he makes clear that so far as the recording of confirmed COVID-19 cases on 300 Logs, Cal/OSHA requirements are consistent with Federal OSHA, and so Cal/OSHA intends to follow the COVID-19 Recordkeeping Guidance issued by fed OSHA. As stated in the letter, and as we have provided on the Federal OSHA side in our COVID-19 Pandemic FAQs, this means that employers are only responsible for recording cases of COVID-19 if all of the following are met:

The case is a confirmed case of COVID-19;
The case is work-related, as defined by Title 8 CCR section 14300.5; and
The case involves one or more of the general recording criteria set forth in Title 8 CCR section 14300.7 (e.g. medical treatment beyond first-aid, days away from work, etc.).

Presumably, Cal/OSHA will also be adopting fed OSHA’s most recent COVID-19 recordkeeping guidance that describe the steep climb to establish any COVID-19 diagnosis as work related outside the context of healthcare, emergency respnoders, and correctional facilities; i.e., unless work-relatedness is obvious because of cluster of employees working closely together, COVID-19 cases in all other industries are presumptively not work-related, and therefore, not recordable.

However, Division Chief Parker explained that Cal/OSHA’s reporting requirements are not consistent with Federal OSHA’s reporting regulation, and how they apply to COVID-19 related illnesses will also be much different. As a threshold matter, Title 8 Section 330 of Cal/OSHA’s regulations requires employers to report a serious injury, illnesses, or death “occurring in a place of employment or in connection with any employment.” Division Chief Parker informs that, under this regulation and the precedents of the Occupational Safety and Health Appeals Board (OSHAB), if a worker experiences symptoms of an ill while at work, and is admitted to the in-patient service of a hospital, regardless whether the illness is work-related and regardless of the duration of the hospitalization, the illness “occur[ed] in a place of employment” and so the employer must report it to the nearest Cal/OSHA office immediately, but not longer than 8 hours after the employer knows or with diligent inquiry would have known of the serious illness.

The letter goes on to state that, according to OSHAB precedent, employers must report all serious injuries, illnesses, or deaths occurring at work without making a determination about work-relatedness. Because for some diseases, such as COVID-19, associated respiratory symptoms such as difficulty breathing can be caused by a variety of occupational exposures, Division Chief Parker advises that it is important for employers to report these cases to Cal/OSHA so that the Division can make the preliminary determination of work-relatedness.

The letter further reminds that reportable illnesses are not limited to instances when the employee becomes ill at work. Sec. 330 also requires reporting of serious illnesses contracted “in connection with any employment,” which Division Chief Parker states “can include illnesses contracted in connection with work but with symptoms that commence outside of work.” Employers are advised in the letter to report serious illnesses if there is cause to believe the illness may be work-related, regardless of whether the onset of symptoms occurred at work, while also being reminded that reporting a serious illness is not an admission that the illness is work-related, nor is it an admission of responsibility.

Delving into COVID-19 issues, Division Chief Parker states that evidence suggesting transmission at or during work would make a serious illness reportable, and provides examples of such evidence, including multiple suspected or confirmed cases among workers who work together or comingle at a job site, or a diagnosed worker who has regular, work-related close contact with the general public. The letter informs that fact patterns like these would trigger the “connection with any employment” condition for reporting purposes, allowing Cal/OSHA to then make its ownevaluation of work-relatedness.

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We will continue to monitor OSHA’s and Cal/OSHA’s guidance on how its regulations apply to the Coronavirus pandemic, and we will provide additional updates on these evolving issues. In the meantime, check out the webinar put on by Conn Maciel Carey’s COVID-19 Task Force in March addressing “How Employers Can Respond to COVID-19.”

For additional employer resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 FAQ Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance. Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about COVID-19 and other important Labor & Employment and OSHA issues. Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.

Finally, it’s not too late to register and join us this afternoon (Thursday, April 16th) for a webinar about Key Cal/OSHA Issues for California Employers to Track, which will include a review of the Cal/OSHA implications of COVID-19 in the workplace.