On Monday, new emergency COVID-19 safety standards issued by the California Division of Occupational Safety and Health (Cal/OSHA) took effect. In the absence of a national COVID-19 standard, a number of states that enforce their own OSHA programs have adopted temporary emergency standards, and the Biden administration may look to California as it considers a national policy.
The new California rules require employers to adopt a written COVID-19 infection control policy. The policy must provide that the company will offer COVID-19 testing to employees who work at a location that has had three or more cases within a 14-day period. In the event of an employee infection, employers must take steps to determine the likely source of the infection and perform contact tracing for possible workplace exposures.
Employees who have been exposed to possible infection (meaning 15 minutes or more within 6 feet in a 24-hour period) must be removed from the workplace for 14 days and be paid for any absences. Employers must provide masks and other PPE to employees free of charge. They must also implement feasible measures (such as ventilation, social distancing, and cleaning) intended to reduce the chances of workplace transmission of the virus. The new rules require that employers provide the written policy to employees, solicit their input on its measures, and train employees with regard to compliance.
While the emergency standard only applies to California employees, the incoming Biden administration is widely expected to quickly adopt a federal OSHA COVID-19 safety standard. As in the past, federal OSHA may look to Cal/OSHA and other state plans when developing this new standard. Federal OSHA could also place considerable pressure on state plans that have not adopted a COVID-19 standard (such as North Carolina and South Carolina) to take similar measures. Employers outside of California may want to review the new Cal/OSHA rules as a possible indicator of upcoming safety requirements.