On November 19, 2020, the Occupational Safety and Health Standards Board (“OSHSB”) issued a series of new regulations related to COVID-19, which are set forth in Title 8 of the California Code of Regulations (“C.C.R.”) Sections 3205 through 3205.4 (“Cal/OSHA regulations”). While employers have rightfully focused on their obligation under Section 3205 to adopt and implement a COVID-19 Prevention Program , obligations under Section 3205.1, which apply in the event of a workplace outbreak, warrant specific attention. Because these regulatory obligations may impose new costs and operational challenges, employers should immediately familiarize themselves with the requirements under Section 3205.1 and plan their response to COVID-19 outbreaks in the workplace.
Section 3205.1 applies to workplaces that experience a COVID-19 “outbreak” meaning three (3) or more COVID-19 cases in a 14-day period.[1] When there is a COVID-19 outbreak in a workplace, Section 3205.1 requires that employers take the following actions to prevent the further spread:
(1) Report the outbreak to the local health department;
(2) Implement additional monitoring measures to inquire into the COVID-19 cases and investigate potential hazards;
(3) Provide testing to employees who were present at the “exposed workplace”[2];
(4) Exclude from the workplace employees who have tested positive for COVID-19 and those who had “close contact”[3] exposure to them;
(5) Investigate the outbreak; and
(6) Continue to notify the local health department of new developments.
Once there is an “outbreak,” an employer has certain continuing obligations described herein that extend until the outbreak ends.
Application
Section 3205.1 applies to any workplace where there is a COVID-19 “outbreak.” Employers – including public agencies, community college districts, schools, and nonprofits alike – should note that the definition of an “outbreak” does not depend on the size of the workplace or the number of employees who may report to a particular worksite or facility.
When an “outbreak” occurs, Section 3205.1 requirements remain in effect until there are no new COVID-19 cases detected at the workplace for 14 days.[4] Accordingly, each new COVID-19 case at the workplace will prolong the employer’s duty to take the above-described actions to prevent the further spread.
To bring added response obligations to an end, it is important that employers act quickly and decisively to resolve outbreaks. Only then may the employer return to its “normal” modified operations.
Notify the Local Health Department
In the event of a workplace outbreak, employers are required to inform the local health department of the existence of the outbreak[5] as soon as possible, but no more than 48 hours after the employer knew or reasonably should have known about the outbreak.[6]
This notice should include the information required under Section 3205.1 as well as that required under Labor Code section 6409.6, subsection (b), including:
(1) The number of COVID-19 cases;
(2) The COVID-19 cases’ names;
(3) Each case’s contact information;
(4) Their respective occupations;
(5) Their workplace locations;
(6) The cases’ medical status (e.g., hospitalization and/or fatality status); and
(7) The business addresses and NAICS codes of any workplaces where the COVID-19 cases work.[7]
Furthermore, following an outbreak, the employer must continue to update the local health department as the employer discovers more information about the outbreak, the employees affected, and their medical status.[8]
Provide Testing to All Employees at the Exposed Workplace
After an outbreak, an employer must provide COVID-19 testing to all employees who were present at the “exposed workplace” during the outbreak period.[9] This could potentially require that the employer provide testing to numerous employees who work in the “exposed workplace”.
The employer must provide employees COVID-19 testing at no cost and must provide the testing to employees during their working hours.[10] The regulation is silent as to whether an employer can satisfy these obligations by reimbursing employees for costs that they incurred in order to be tested or pay employees to be tested outside their normal working hours.
Furthermore, the employer must offer a second round of testing one week after the first tests in order to satisfy the testing requirement.[11]
Finally, if the employer elects to direct its employees to return to the “exposed workplace” following an outbreak, the employer must provide these employees with COVID-19 testing on a weekly basis, unless the local health department recommends more frequent testing.[12] The employer must continue to provide testing to employees reporting to the exposed workplace until there are no new COVID-19 cases detected at the workplace for 14 days.[13]
Monitor COVID-19 Cases and Hazards and Investigate the Outbreak
After an outbreak, an employer has obligations to monitor its workplace for new cases of COVID-19 and hazards that may contribute to the spread of COVID-19 in the workplace,[14] as well as to investigate the COVID-19 outbreak.[15]
To discharge their post-outbreak duties, employers must make “diligent inquiry” into the presence of new COVID-19 cases and investigate potential hazards, including potentially infectious material and objects or surfaces that may be contaminated with the virus that causes COVID-19.
Employers must also investigate the COVID-19 outbreak by taking action to determine the following:
(1) The day and time of each COVID-19 case;
(2) Where the COVID-19 case was present within the workplace;
(3) The dates of any COVID-19 tests and diagnoses;
(4) The date(s) when symptoms presented; and
(5) Who may have been exposed to the virus.
Employers should be mindful of the notification, confidentiality, and other requirements that accompany such investigations.[16]
The investigation must also include a review of the employer’s COVID-19 policies, procedures, and controls.[17] The employer must document the review and include findings from an investigation into any new or unaddressed COVID-19 hazards.[18] The employer must, on an ongoing basis, update the review according to the following:
(1) Once every 30 days;
(2) Whenever the employer discovers new information or previously unrecognized COVID-19 hazards; and
(3) When otherwise necessary.
Employers should update their review every 30 days, and should update the review more frequently if and when they discover new information, such as new COVID-19 hazards or any other issue requiring an update.[19]
Finally, the employer must implement any changes that would reduce the transmission of COVID-19 based on its investigation findings.[20] The regulation describes this by saying that “the employer shall consider moving indoor tasks outdoors or having them performed remotely, increasing outdoor air supply when work is done indoors, improving air filtration, increasing physical distancing as much as possible, respiratory protection, and other applicable controls.”
Exclude COVID-19 Positive Employees and Employees with Close Contact Exposures
In the event of a workplace outbreak, the employer has an obligation to exclude from the employer’s worksites and facilities any employee with COVID-19, as well as any employee who had close contact exposure to an individual with COVID-19.[21] The employer must not allow these employees to report to any worksite or facility until they satisfy the applicable return-to-work criteria.[22]
Under certain conditions, employers may request that Cal/OSHA authorize an asymptomatic employee with close contact exposure return to work before finishing the full quarantine period. Cal/OSHA may allow the employee’s return to work if “the removal of the employee would create undue risk to a community’s health and safety.”[23] If Cal/OSHA permits the employee to return to work, it will require the employer to further develop, implement, and maintain effective control measures to prevent transmission in the workplace including providing isolation for the employee at the workplace and, if isolation is not possible, the use of respiratory protection in the workplace.
Conclusion
Employers should familiarize themselves with the significant obligations set forth in Section 3205.1 in order to prepare and plan for a potential COVID-19 outbreak at one of their worksites or facilities.
The regulation imposes numerous requirements, and understanding these requirements ahead of any workplace outbreak will facilitate the employer’s response and return to “normal” modified operations without unnecessary delay.
Liebert Cassidy Whitmore attorneys are available to assist employers that have any questions about the new Cal/OSHA regulations and how to prepare and plan for an outbreak.
[1] “Outbreak” also means a period of time identified by a local health department. (See 8 C.C.R. § 3205.1(a)(1).)
[2] “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, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. The exposed workplace does not include buildings or facilities not entered by a COVID-19 case.” (See 8 C.C.R. § 3205(b).) Employers should note that the regulatory definition of “exposed workplace” is broad, and employers do not possess authority under the regulation to subdivide the workplace in order to minimize testing obligations under 8 C.C.R. § 3205(b).
[3] “Close contact” (referred to in the Cal-OSHA regulations as a “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 within or overlapping with the COVID-19 positive individual’s “infectious period.” The “infectious period” means the following time periods: (1) For persons who develop COVID-19 symptoms: from two (2) days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved; or (2) For persons who test positive who never develop COVID-19 symptoms: from two (2) days before until ten days after the specimen for their first (1st) positive test for COVID-19 was collected. This is a close contact, regardless of the use of face coverings.
[4] See 8 C.C.R. § 3205.1(a)(2).
[5] 8 C.C.R. § 3205.1(f).
[6] 8 C.C.R. § 3205.1(f)(1).
[7] 8 C.C.R. § 3205.1(f)(2); Lab. Code § 6409.6(b).
[8] 8 C.C.R. § 3205.1(f)(2)–(3); Lab. Code § 6409.6(b).
[9] 8 C.C.R. § 3205.1(b)(1); See also fn. 2, supra; The outbreak period means the period of time identified by the local health department or the period of time during which three (3) or more COVID-19 cases were present at an employer’s workplace within a 14-day period. Unless instructed by the local health department, employers may determine the outbreak period by identifying: (1) the date on which the first COVID-19 positive individual was in their “infectious period” (See fn. 3) and at an employer’s workplace; and (2) the date on which the third, or final, COVID-19 positive individual was in their “infectious period” and at an employer’s workplace. These dates should be within a 14 days of one another.
[10] 8 C.C.R. § 3205.1(b)(1).
[11] 8 C.C.R. § 3205.1(b)(2)(A).
[12] 8 C.C.R. § 3205.1(b)(2)(B).
[13] See fn. 4, supra.
[14] 8 C.C.R. § 3205.1(f)(1).
[15] 8 C.C.R. § 3205.1(d).
[16] See 8 C.C.R. § 3205(c)(3).
[17] 8 C.C.R. § 3205.1(e).
[18] Id.
[19] 8 C.C.R. § 3205.1(e)(2).
[20] 8 C.C.R. § 3205.1(e)(3).
[21] 8 C.C.R. § 3205.1(c); See also 8 C.C.R. § 3205(c)(10)(A)-(B); See also Executive Order N-84-20, [revising quarantine guidance under 8 C.C.R. § 3205(c)(10)(B); CDPH “COVID-19 Quarantine Guidance, https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID-19-Quarantine.aspx (Last updated on December 14, 2020.)
[22] 8 C.C.R. § 3205(c)(11).
[23] See 8 C.C.R § 3205(c)(11)(E).
