As California businesses begin to reopen and return employees to physical workplaces, there are numerous safety measures for employers to consider implementing to minimize the spread of COVID-19.  On May 14, 2020, California’s Division of Occupational Safety and Health (“Cal/OSHA”) issued its “Interim General Guidelines on Protecting Workers from COVID-19.”  The new guidelines replace the previous, limited directives by Cal/OSHA, which forced employers to rely heavily on federal Occupational Safety and Health Administration (“Fed/OSHA”) and Centers for Disease Control and Prevention (“CDC”) for advice instead.  The new guidance identifies specific infection control measures that are mandatory for California employers to implement and include in their Injury and Illness Prevention Program (“IIPP”).  This article breaks down the extensive list of measures and training in the new guidance in an effort to help employers learn how to update their current IIPP and remain in compliance.

California’s General Regulations on Occupational Safety and Health

Under section 3203 of California’s general industry safety regulations, employers must establish, implement and maintain an effective Injury and Illness Prevention Program (“IIPP”) to protect employees from workplace hazards.  The IIPP must be in writing, made accessible to all employees, and contain the following:

  • Identity of the individual(s) with authority and responsibility for implementing the IIPP;
  • System for ensuring employee compliance with safe and healthful work practices;
  • System for communicating with employees about occupational safety and health matters;
  • Procedures for identifying and evaluating work place hazards;
  • Procedures for investigating occupational injuries or illnesses;
  • Procedures for timely correcting unsafe or unhealthy conditions, work practices and work procedures; and
  • Training for all new employees and for all employees whenever the employer learns of a new or previously unrecognized hazard.

Employers must maintain—for at least one year—their records of steps taken to implement and maintain the IIPP and documentation of the safety and health training provided to each employee.

Certain employers, including those in the healthcare and mortuary industries, must also comply with California’s Aerosol Transmissible Diseases (“ATD”) Standard.  The ATD Standard imposes additional requirements on employers to protect employees from airborne infectious diseases like COVID-19 and pathogens transmitted by aerosols.  For all other employers, the regulations above generally govern compliance.

COVID-19 Is a Workplace Hazard for Most Employers

According to Cal/OSHA’s COVID-19 guidance, California employers are required to determine if COVID-19 infection is a workplace hazard.  Given its widespread transmission throughout the community, COVID-19 is a foreseeable workplace hazard for most businesses.  Consequently, Cal/OSHA now instructs that it is mandatory for these employers to adopt changes to their IIPP that implement infection control measures to curb employees’ exposure to COVID-19.  Naturally, infection control measures will vary by workplace and industry.  Consistent with its previous guidance, Cal/OSHA generally advises employers to review applicable and relevant CDC recommendations.

Infection Prevention Measures for Inclusion in IIPPs

Notwithstanding workplace and industry variations, Cal/OSHA’s guidance identifies an extensive list of specific infection prevention measures that employers should include in their written IIPP.

All IIPPs should contain the following measures aimed at minimizing the spread of the infection from sick employees:

  • Actively encourage sick employees to stay home.
  • Immediately send employees home or to medical care if they have any of the COVID-19 symptoms recognized by the CDC, including frequent cough, fever, difficulty breathing, chills, muscle pain, headache, sore throat, or recent loss of taste or smell.
  • Ensure employees who are out ill with fever or acute respiratory symptoms do not return to work until both of the following occur:
    • At least three full days pass with no fever (without the use of fever-reducing medications) and no acute respiratory illness symptoms; and
    • At least 10 days pass since the symptoms first appeared.
  • Ensure employees that return to work following an illness promptly report any recurrence of symptoms.
  • Provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 if required to by the Families First Coronavirus Response Act.

The IIPPs should include the following measures to further limit infection if an employee is confirmed to have COVID-19 infection:

  • Inform employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act and employee privacy laws.
  • Temporarily close the general area where the infected employee worked until cleaning is completed.
  • Conduct deep cleaning of the entire general area where the infected employee worked and may have been, including breakrooms, restrooms and travel areas, with a cleaning agent approved by the Environmental Protection Agency (“EPA”) against COVID-19.
    • The cleaning should ideally be performed by a professional cleaning service.
    • Any person cleaning the area should be equipped with the proper personal protective equipment (“PPE”) for COVID-19 disinfection (disposable gown, gloves, eye protection, mask, or respirator if required) in addition to PPE required for cleaning products.

Consistent with OSHA and CDC guidance, Cal/OSHA’s guidance instructs that IIPPs should contain the following administrative and safe work practice controls if applicable to the workplace:

  • Encourage employees to telework from home when possible.
  • Practice physical distancing by cancelling in-person meetings, using video or telephonic meetings, and maintaining a distance of at least 6 feet between persons at the workplace when possible.
  • Provide employees with cloth face covers or encourage employees to use their own face covers for use whenever employees may be in workplaces with other persons.
  • Avoid shared workspaces (desks, offices, and cubicles) and work items (phones, computers, other work tools, and equipment) when possible.
    • If they must be shared, clean and disinfect shared workspaces and work items before and after use.
  • Advise employees to avoid non-essential travel if possible and check the CDC’s Traveler’s Health Notices prior to travel.

IIPPs should establish procedures to routinely clean and disinfect commonly touched objects and surfaces such as elevator buttons, handrails, copy machines, faucets, and doorknobs.  Surfaces should be cleaned with soap and water prior to disinfection.  Cleaning and disinfecting procedures should include the following:

  • Use disinfectants that are EPA-approvedfor use against COVID-19.
  • Provide EPA-registered disposable wipes for employees to wipe down commonly used surfaces before use.
  • Follow the manufacturer’s instructions for all cleaning and disinfection products (e.g., safety requirements, PPE, concentration, contact time).
  • Ensure there are adequate supplies to support cleaning and disinfection practices.

Industry-Specific Guidance for Retail Sales or Service Industries

In addition to the measures above, Cal/OSHA’s new guidelines identify industry-specific measures for employers in industries with significant public interaction, such as businesses in the retail and service industries.  Where the public is a possible contamination source, Cal/OSHA advises that employers should take preventative and protective measures to protect their employees from frequent contact with the public, including the following:

  • Conduct even more frequent cleaning and disinfection of surfaces touched by the public such as credit card machines, touch screens, shopping carts and doors.
  • Protect cashiers and other workers who have frequent interaction with the public with engineering controls such as Plexiglas screens or other physical barriers, or spatial barriers of at least six feet, if feasible.
  • If exposures to the general public cannot be eliminated with engineering controls, require or encourage customers to wear face coverings, which are mandatory in some jurisdictions.
  • Schedule work to allow frequent hand washing by employees handling items (cash, credit cards, merchandise, etc.) touched by members of the public.
  • Enforce physical distancing by limiting the number of customers in retail space.
  • Ask customers to take precautions such as only touching items they intend to purchase, and provide hand sanitizer stations.
  • Provide workers handling items touched by the public with PPE (i.e., disposable gloves).

Additionally, employers should consult the industry-specific guidance published by Cal/OSHA on its main COVID-19 web page.  Thus far, infection prevention guidelines and checklists are available for the following industries and employers: agriculture, child care, construction, grocery stores, logistics, mortuary and funeral homes, and skilled nursing and long-term care facilities.  Employers should continue to monitor the Cal/OSHA website for additional updates.

Employer Provision of Employee Training

California’s general regulations also require employers to provide employees with training on new workplace hazards.  Thus, Cal/OSHA’s new guidelines advise employers to provide training in a language that is readily understandable by all employees on the following topics:

  • General description of COVID-19, symptoms, when to seek medical attention, how to prevent its spread, and the employer’s procedures for preventing its spread at the workplace.
  • How an infected person can spread COVID-19 to others even if they are not sick.
  • How to prevent the spread of COVID-19 by using cloth face coverings, including:
    • CDC guidelines that everyone should use cloth face coverings when around other persons.
    • How cloth face coverings can help protect persons around the user when combined with physical distancing and frequent hand washing.
    • Information that cloth face coverings are not protective equipment and do not protect the person wearing a cloth face covering from COVID-19.
    • Instructions on washing and sanitizing hands before and after using a cloth face covering, which should be washed after each shift.
  • Cough and sneeze etiquette.
  • Washing hands with soap and water for at least 20 seconds, after interacting with other persons and after contacting shared surfaces or objects.
  • 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.
  • Safely using cleaners and disinfectants, which includes:
    • The hazards of the cleaners and disinfectants used at the worksite.
    • Wearing PPE (such as gloves).
  • Ensuring cleaners and disinfectants are used in a manner that does not endanger employees.

Employer Provision of PPE

Finally, Cal/OSHA’s guidance touches on Title 8, section 3380, which requires employers to conduct a hazard assessment to determine whether any PPE is needed to protect employees from workplace hazards.  If PPE is needed, the employer must select and provide employees with properly fitting and sanitary PPE.  As noted above, employers must ensure that employees using cleaners and disinfectants receive and use the appropriate PPE.  Notably, Cal/OSHA advises that consistent with CDC guidelines, and in light of the current shortage of respirator and surgical masks and their prioritization for use by health care workers, it is not recommending respirators or N95 masks for most workers at this time.

Employer Takeaways

Given the extensive guidance already published by Fed/OSHA and the CDC, the practices and procedures listed in Cal/OSHA’s new guidelines themselves may not necessarily be new to employers.  Moreover, Cal/OSHA specifically states that its guidelines do not impose new legal obligations on employers (nor could they absent formal or emergency rulemaking).  Instead, as Cal/OSHA advises, the guidelines simply provide information for preventing and minimizing exposure to COVID-19.  Nevertheless, the guidance may impact any Cal/OSHA review on the effectiveness of an employer’s IIPP.  Consequently, employers would be wise to do the following:

  • Update their current IIPPs to align with Cal/OSHA’s new guidance and any industry-specific guidance.
  • Implement the generally applicable infection prevention control measures identified above.
  • Maintain any records on safety and health measures implemented.
  • Maintain documentation on any training provided to employees.

Employers with any questions or concerns about compliance should consult with experienced OSHA counsel to ensure they are satisfying all of the increased safety and health obligations and complications brought on by the pandemic.

As you are aware, things are changing quickly and there is a lack of clear-cut authority or bright line rules on implementation.  This article is not intended to be an unequivocal, one-size fits all guidance, but instead represents our interpretation of where things currently and generally stand.  This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay and other issues.

Sheppard Mullin is committed to providing employers with updated information regarding COVID-19 and its impact on the workplace.  Stay informed on legal implications with Sheppard Mullin’s Coronavirus Insights Portal which now aggregates the firm’s various COVID-19 blog posts on a broad range of topics.