With the approval of Cal/OSHA’s new COVID-19 regulations, the proponents of action-taking won out over those who felt California’s existing laws, regulations, and enforcement arsenal were sufficient to meet the moment. It’s clear that California likes to lead—though it’s not the first state to enact specific COVID-19 standards (Virginia and Oregon got there first).

During last Thursday’s marathon session of the Occupational Safety & Health Standards Board, public comments from individual workers and advocates offered searing accounts of unscrupulous employers who failed (or refused) to take steps to protect their employees during the pandemic. Many of the steps, including providing free face coverings to employees to prevent the spread of a terrible virus, were already required by Cal/OSHA standards.

Workers who labor under these unsafe conditions need help, but as others noted at the hearing, an employer that doesn’t follow existing workplace safety standards is unlikely to change because of new, more specific, standards. Instead, the burden of compliance will fall on employers who may already have effective COVID-19 procedures in place and who have not had a single COVID-19 cases.

Practical Tips for Creating a COVID-19 Prevention Program

Preparing a written, Cal/OSHA-compliant COVID-19 Prevention Program should be the priority of every California employer, particularly because the standard is due to take effect on November 30th.

(The exception is for those employers, including hospitals and clinics, who are covered by the Aerosol Transmissible Disease Standard, section 5199 of Cal/OSHA’s regulations.)  The new standard lists eleven elements that must be included, from a system for communicating with employees about COVID-19 to return to work criteria, and many more requirements in between.  Our recent alert sets forth each element in some detail, but the regulations must be consulted carefully to ensure full compliance.

Employers may cull together their existing policies and procedures into one document, but should use the eleven elements as a checklist or even as a way to organize the Program. Employers must be prepared to provide the COVID-19 Prevention Program to employees, any union, and to Cal/OSHA “immediately upon request.” You don’t want to have a rough draft or a scattering of various e-mails and handouts related to COVID-19.

Finally, employers should bear in mind some lessons learned from Cal/OSHA Appeals Board decisions interpreting the standards for Illness and Injury Prevention Programs and Heat Illness Prevention Programs. It is not sufficient simply to track the language of the standard. For example, the COVID-19 standard requires an “identification and evaluation of COVID-19 hazards.”  More specifically, “[t]he employer shall conduct a workplace-specific identification of all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards.” An employer should not copy and paste that sentence into its COVID-19 Prevention Program, as if it were an exhortation to take some future action. Cal/OSHA wants to ensure that you’ve done it. Therefore, conduct the appropriate “identification and evaluation” and consider including a sentence like this one in your Program: “The Company has conducted an initial workplace-specific identification and evaluation of COVID-19 hazards with the input of employees, and has identified the following sources for potential exposure to COVID-19 hazards:_____” and then list the sources for potential exposure. You may need to revise that provision as the sources of exposure change, or new sources arise, but the foundation will be there.

Takeaways

Employers have until November 30th to create a COVID-19 Prevention Program as required by Cal/OSHA’s new regulations. The Program must be a single document, and must be made available to employees, their unions (if any), and state inspectors. The Program should be specific and detailed, and yet able to be revised quickly as our understanding of the coronavirus, its transmission, and mitigation evolve.

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