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COVID-19 PREVENTION – NON-EMERGENCY REGULATION

Background:  On December 15, 2022, the Cal/OSHA Standards Board voted to adopt non-emergency COVID-19 Prevention regulations.  These regulations will take effect once they are approved by the Office of Administrative Law in the month of January 2023 and will remain in effect for two years.  Recordkeeping sections will remain in effect for three years.

To address the potential gap between the previous expiration date of December 31, 2022, and the completion of the OAL approval process, Cal/OSHA has provided that the COVID-19 Emergency Temporary Standards (ETS) remain in effect until the new regulations become effective.

These non-emergency regulations include some of the same requirements found in the COVID-19 Emergency Temporary Standards (ETS), plus new provisions aimed at making it easier for employers to provide consistent protections to workers and allow for flexibility if changes are made to CDPH guidance in the future.

Important regulation changes:

  • The permanent regulations do not require employers to pay exclusion pay while they are excluded from work.  They must, however, provide employees with information regarding COVID-19 related benefits they may be entitled to under federal, state, or local laws; their employer’s leave policies, or leave guaranteed by contract.

  • Employers are no longer required to maintain a standalone COVID-19 Prevention Plan.  Instead, they must now address COVID-19 as a workplace under the requirements found in Title 8, Section 3203 (Injury and Illness Prevention Plan, and include their COVID-19 procedures to prevent this health hazard in their written IIPP or in a separate document.  See IIPP requirements here:  https://www.dir.ca.gov/title8/3203.html

  • Employers must do the following:

    • Provide effective COVID-19 hazard prevention training to employees

    • Provide face coverings when required by the California Department of Public Health (CDPH) and provide respirators upon request

    • Identify COVID-19 health hazards and develop methods to prevent transmission in the workplace

    • Investigate and respond to COVID-19 cases and certain employees after close contact

    • Make testing available at no cost to employees, including to all employees in the exposed group during an outbreak or a major outbreak

    • Notify affected employees of COVID-19 case in the workplace

    • Maintain records of COVID-19 cases and immediately report serious illnesses to Cal/OSHA and to the local health department when required

Important changes to definitions:

  • “Close contact” is now defined by looking at the size of the workplace in which the exposure takes place.  For indoor airspaces of 400,000 or fewer cubic feet, “close contact” is now defined as sharing the same indoor airspace with a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period.  For indoor spaces of greater than 400,000 cubic feet, “close contact” is defined as being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period

  • “Exposed group” was clarified to include employer-provided transportation and employees residing within employer-provided housing

CAL/OSHA STANDARDS BOARD CONSIDERS CHANGES TO FIRST AID KIT REQUIREMENTS

Background:  Petitioners to the Cal/OSHA Standards Board filed petitions in 2006 and  in 2010 to make kits compliant with the relevant national standard and to eliminate a requirement that a consulting physician approve kits.  Many stakeholders have called that requirement “burdensome”. The Board is close to the one-year deadline for voting on the package – if they don’t do so by February 2023, they will have to start the process over.

Important regulation changes:

  • The revised Construction Safety Orders § 1512(c) gives employers the option of having minimum first-aid kit supplies determined by either an employer-authorized physician or other licensed health care professional, or by the minimum requirements of the ANSI/ISEA Z308.1 national consensus standard (American National Standards Institute/International Safety Equipment Association)

  • Previous language called for kits to be in a weatherproof ANSI/ISEA Type IV container.  Type IV first aid kits have additional elements beyond being weatherproof – such containers must meet performance guidelines for corrosion, moisture, and impact resistance.  The Board has since removed the provision requiring employers to have the Type IV containers.  Instead, the new language states that on construction projects, the employer shall provide at least one first-aid kit in a “weatherproof container.” 

  • The proposal states that the “contents shall be checked by the employer before being sent out on each job and at least weekly on each job”.  Stakeholders have complained that this requirement will be “time-consuming, costly and unnecessary

  • Some stakeholders have called for a Standard Regulatory Impact Assessment on the first aid kit proposal to determine the financial impact of the proposal stating that the cost could range from $200 million to $ 500 million just to revise the kits.  Then, there is the continual need for documentation of weekly inspections.

CAL/OSHA EVALUATING CHANGES TO THE OCCUPATIONAL EXPOSURE TO LEAD IN CONSTRUCTION REGULATION

Background: Cal/OSHA has been working on revisions to the Occupational Exposure to Lead in Construction regulation since 2010/2011.  The current laws were essentially copied from federal regulations that have been in place since 1979.

Important proposed regulatory changes:

  • The first proposed change will require a reduction in the Permissible Exposure Limit (PEL).  As proposed, the PEL will drop from 50 micrograms of lead per cubic centimeter (ug/m3) of air to 10 ug/m3.  Many requirements kick in when workers are exposed above this new level including requirements to wear protective suits, use a respirator, and take an on-site shower after exposure.

  • The second – and potentially more significant – change for most contractors and maintenance crews, will be a reduction in the action level.  As proposed, the Action Level (AL) will drop from 30 ug/m3 to 2 ug/m3 of air.  If implemented, this reduction may require:

    • Workers will be required to get Action Level training

    • Additional air samples will need to be taken

    • Blood lead level monitoring of the crew will be required

(The general idea of the AL is that if employee exposure levels of a harmful chemical or other agent reach the action level, the employer must take some action to mitigate the risk of that exposure.  This means that if the exposure reaches the action level, the employer has to take action and implement exposure control measures to reduce the exposure potential)

Current status:

  • At the last Cal/OSHA Advisory Committee meeting, Deputy Chief Eric Berg reported that Cal/OSHA headquarters is working with the staff of the Cal/OSHA Standards Board to refine the proposal and that a Notice to stakeholders would be forthcoming in the near future.

  • The current review process includes an evaluation of the economic impact.

CAL/OSHA PROGRAM RESOURCES FOR CONTRACTORS

  • Injury and Illness Prevention Program (IIPP) – Three of the ten Most Frequently Cited (MFC) standards for construction contractors are for violations of the IIPP.  Those sections require 1) a written program, 2) a Code of Safe Practices, the posting of the Code in a conspicuous location.  See the requirements of the IIPP here:  https://www.dir.ca.gov/title8/1509.html
  • Code of Safe Practices – the Code should be tailored for each contractor and their job sites.  Minimum requirements can be found here:  https://www.dir.ca.gov/title8/sub4_a.html.  See Plate A-3.
  • Hazards of Silica – a helpful resource from the Cal/OSHA Consultation Service is this Hazards of Silica I Construction eTool:  https://www.dir.ca.gov/dosh/etools/08-019/index.htm
  • Mobile Elevated Work Platforms – requirements for Elevating Work Platforms and Aerial Devices can be found here: https://www.dir.ca.gov/title8/sb7g4a24.html
  • Ladder Safety – another helpful tool from the Cal/OSHA Consultation Service is this eTool:  https://www.dir.ca.gov/dosh/etools/08-001/index.htm
  • Training and Instruction Requirements in Cal/OSHA Standards -  Cal/OSHA has many training and instruction requirements in its standards.  This resource is organized alphabetically, and provides 1) training topic, 2) Title 8 Section that applies. 3) Frequency of required training, 4) Typical job classifications covered by the requirement, and 5) Cal/OSHA publications on the subject matter that are available free-of-charge.  See the resource here:  https://www.dir.ca.gov/dosh/dosh_publications/trainingreq.htm

A CAUTION FOR EMPLOYERS

  • Most Frequently Cited Standards – the five most frequently cited standards against construction contractors totaled 1,108 violations, with a total of $1,189,481 in penalties.  These five standards have been on the books for many years, and contractors are advised to check their safety programs to ensure they are in compliance with the applicable standard.  Those five standards are:
    • Heat Illness Prevention (#1) – Title 8, Section 3395 - see the requirements here:  https://www.dir.ca.gov/title8/3395.html
    • Injury and Illness Prevention Program (#2) -Title 8, Section 1509(a) -California was the first state to adopt such a standard 31 years ago in 1992.  The requirements are available here:  https://www.dir.ca.gov/title8/1509.html
    • Code of Safe Practices (#3) – Title 8, Section 1509 (c) – requires the Code to be posted at a conspicuous location at each job site office or be provided to each supervisory employee who shall have it readily available – see the requirement here;  https://www.dir.ca.gov/title8/1509.html
    • Reporting of Work-Related Injuries and Illnesses (#4) – Title 8, Section 342 (a) - Cal/OSHA takes this requirement very seriously, and when cited, they assess a minimum penalty of $5,000.  And, when appealed, the Cal/OSHA Appeals Board rarely reduces that penalty.  The language of the standard states “Every employer shall report immediately to the Division of Occupational Safety and Health any serious injury or illness, or death, of an employee occurring in a place of employment or in connection with any employment.  The report shall be made by the telephone or through a specific online mechanism established by the Division for this purpose.  Until the Division has made such a mechanism available, the report may be made by the telephone or email”.  See the requirement here:  https://www.dir.ca.gov/title8/342.html
    • Emergency Medical Services (#5) - Title 8, Section 1512(b) – “Appropriately Trained Personnel.  Each employer shall ensure the availability of a suitable number of trained personnel to render first aid.  When more than one employer is involved in a single construction project on a given construction site. The employers may form a pool of appropriate trained persons.  However, such pool shall be large enough to service the combined work forces of such employers.”  The exact language can be found here:  https://www.dir.ca.gov/title8/1512.html
  • Inspection-related Document Request – If Cal/OSHA reports to your job site and initiates an inspection, they will hand the management representative a Document Request.  Be prepared to respond to this request.  The form has a total of twenty-five (25) separate documents they may request, with a blank form for additional information.  It is important that this form be completed as fully as possible and submitted by the submission date noted at the top of the form.  See the form here:  https://www.dir.ca.gov/doshpol/Document_Request1AY_072308.pdf.