Calif. Emergency COVID-19 Workplace Rules Take Effect

By Craig Clough
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Law360 (December 1, 2020, 10:30 PM EST) -- A set of emergency COVID-19 safety regulations governing most employers in the state of California went into effect Monday following their approval by the Office of Administrative Law.

The six-member board overseeing California's Division of Occupational Safety and Health — known as Cal/OSHA — approved the regulations unanimously in November, and the Office of Administrative Law's seal of approval was the final step needed.

"These are strong but achievable standards to protect workers," Cal/OSHA Chief Doug Parker said in a statement. "They also clarify what employers have to do to prevent workplace exposure to COVID-19 and stop outbreaks."

The regulations give more power to the state's workplace enforcement measures that up until now have been issued through a series of guidelines from different agencies, according to an analysis of the regulations provided by Parker to the board.

The regulations require employers to provide COVID-19 testing to all employees if there is a workplace outbreak, which is defined as three or more COVID-19 cases in an exposed workplace within a 14-day period.

Employers are also required to provide free masks and personal protective equipment to all workers, to identify a "competent employer representative to establish, implement, and maintain an effective written compliance action plan to protect employees" and to "share the plan with employees and employee representatives."

The regulations also require the plan to identify specific workplace hazards that may expose employees to COVID-19 and "adopt and implement feasible preventive measures to eliminate or minimize transmission risks."

After being in effect for 180 days, the regulations need to be either adopted as regular rule-making action by the board or be extended.

In a change that will significantly affect the state's agricultural industry, where many seasonal workers are provided housing, the regulations require employers to space all beds at least six feet apart, and workers being transported must be spaced at least three feet apart.

Employers would also need to abide by standards for reporting when a worker has tested positive for COVID-19, and pay any employees needing to quarantine for 14 days. They would also need to keep workers six feet apart or build barriers between them if it is not possible.

The changes have been championed by labor advocacy groups the Labor & Employment Committee of the National Lawyers Guild and Worksafe. The groups first proposed the new regulations to Cal/OSHA in a May petition.

"We understand the need to educate and assist employers as they implement the new provisions of the emergency standards," Parker said. "For employers who need time to fully implement the regulations, enforcement investigators will take their good faith efforts to implement the emergency standards into consideration. However, aspects such as eliminating hazards and implementing testing requirements during an outbreak are essential."

--Editing by Emily Kokoll.

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