December 22, 2020

Cal/OSHA Addresses Concerns Over Onerous Obligations of ETS

On December 18, 2020, California’s Occupational Safety and Health Standards Board (Standards Board)1 conducted a Stakeholders Meeting to address employer concerns about the COVID-19 Emergency Temporary Standard (ETS) issued by the California Occupational Safety and Health (Cal/OSHA), explain the ETS’s key provisions, and establish a focused agenda for an upcoming Advisory Committee Meeting during which Cal/OSHA will consider amendments to the ETS.

Background on the ETS

The ETS took effect on November 30, 2020, over the objections of several employers, trade associations, employer agencies, and defense counsel. It consists of five particularly notable sections addressing COVID-19 prevention, multiple COVID-19 infections and COVID-19 outbreaks, major COVID-19 outbreaks, COVID-19 prevention in employer-provided housing, and COVID-19 prevention in employer-provided transportation to and from work. Subsequently, in an attempt to clarify ambiguities stemming from the ETS, Cal/OSHA issued guidance on the ETS, including FAQs.

On December 14, 2020, the California Department of Health (CDPH) issued guidance (CDPH’s Guidance) shortening the quarantine periods for certain individuals. The CDPH’s shortened quarantine periods are intended to align with the Centers for Disease Control and Prevention’s recently issued guidance (CDC’s Guidance), which shortened quarantine periods to 10 or 7 days for certain individuals due to the burdens and risks of non-compliance associated with the longer, previously recommended 14-day quarantine period. That same day, Governor Newsom’s office released Executive Order N-84-20, which, in part, incorporates into the ETS the shortened quarantine periods set forth in the CDPH’s Guidance. Per Executive Order N-84-20, the shortened quarantine periods in the CDPH’s Guidance apply unless there is a local health order that prescribes a longer exclusion period.  

Stakeholder Meeting Summary

Despite the guidance provided by Cal/OSHA’s FAQs, the CDPH, and Executive Order N-84-20, many questions remain regarding the ETS’s onerous obligations. On December 15, 2020, in preparation for the Stakeholders Meeting, Littler’s Workplace Policy Institute (WPI) and Littler’s OSHA Practice Group held a Listening Session to field employer concerns regarding the ETS. Using the information compiled from the Listening Session, Littler representatives attended and raised employer concerns at the December 18, 2020 Stakeholders Meeting. Below is a summary of the key concerns raised at the meeting, as well Cal/OSHA Chief Douglas Parker’s and Cal/OSHA’s Head of Research and Standards Eric Berg’s explanations and comments provided in response to these concerns.

1.  Testing Requirements: The ETS provides that when circumstances trigger employer testing obligations, employers must provide testing “at no cost to employees during employees’ working hours.”2 To date, Cal/OSHA has not provided guidance on or an explanation regarding what is meant by this phrase.

At the Stakeholder’s Meeting, Chief Parker clarified that Cal/OSHA did not intend for this phrase to be interpreted as requiring employers to perform testing during an employee’s work day or work shift, or as requiring employers to adjust employee work schedules or other processes. Instead, Chief Parker explained, this phrase simply means that employees must be paid for time spent getting tested, and employers must cover all costs associated with employee testing. Chief Parker also explained that using community testing centers that are free of charge is an acceptable means of complying with employer testing obligations, so long as employees are compensated for time spent at the community testing center.

Chief Parker also listened to employer concerns regarding the feasibility of the ETS’s employer testing obligations, and more specifically concerns regarding the limited availability of viral tests for SARS-CoV-2 and the expense associated with such tests. For example, employers with large workforces are concerned that they will be unable to find vendors that can accommodate their testing obligations.

They are also concerned that the cost of complying with the ETS’s testing obligations may ultimately cause them to have to shut down facilities or even go out of business. Littler’s WPI representatives at the meeting pointed out that depending on where an employer is located within the state, there may be insufficient free testing resources available for the number of tests required. The cost of testing a single employee ranges from $120 to $180. An employer that is required to test 100 employees in a shift will be spending between $12,000 and $18,000 each time it must test. An employer with 400 employees in a shift will be spending between $48,000 and $72,000 each time it is required to test. WPI also pointed out during the Stakeholders Meeting that one business is providing tests that cost $160 per employee. Under the regulations, during an outbreak, this business would need to test approximately 5,000 employees. One week of testing would therefore cost the business $800,000. The requirement to conduct additional testing the following week would cost this business $1.6 million for only the first two weeks. Notably, this particular business is designated as a critical infrastructure business and is assisting federal, state, and local governments with the distribution of vaccines, but may find it unsustainable to stay in business with these enormous expenditures.

Chief Parker did not respond to these concerns at the meeting, but instead indicated that Cal/OSHA will address such concerns in forthcoming guidance.

2.  Physical Distancing Requirements: The ETS requires, in relevant part: “All employees shall be separated from other persons by at least six feet, except where an employer can demonstrate that six feet of separation is not possible…”3

Neither the ETS nor the FAQs state whether there are particular circumstances or industries in which physical distancing is categorically not possible. At the Stakeholders Meeting, Chief Parker acknowledged that there are circumstances and industries in which physical distancing may not be possible. Nevertheless, there are no categorical exceptions to the ETS’s physical distancing requirements, and the burden falls on employers to prove that physical distancing is not possible on a case-by-case basis.

3.  Cal/OSHA Recording and Reporting Obligations: It is unclear from the ETS and limited FAQs whether Cal/OSHA reporting and recording requirements for COVID-19 cases are affected by these new regulations. At the Stakeholders Meeting, Chief Parker clarified that these new regulations do not change COVID-19 reporting and recording requirements.

4.  Critical Worker Exemption: Employers have expressed the need for a clear critical worker exemption from the ETS, and inquired as to whether the ETS intended to create such an exemption. More specifically, they have asked whether the following language from the ETS creates such an exemption:

If there are no violations of local or state health officer orders for isolation or quarantine, the Division may, upon request, allow employees to return to work on the basis that the removal of an employee would create undue risk to a community’s health and safety. In such cases, the employer shall 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.4

At the Stakeholders Meeting, Chief Parker clarified that the ETS, and in particular the language above, does not create an automatic exemption for critical workers. Instead, this section of the ETS provides a mechanism for employers to request an exemption. Currently, the ETS requires that employers submit a brief written request to the Division to obtain an exemption. Chief Parker communicated, however, that forthcoming FAQs will provide a mechanism for provisional approval for an exemption. He also communicated that the Division will seriously consider recommending to the Standards Board that there should be an automatic critical worker exemption.

5.  Exclusion Pay: The ETS provides, in relevant part:

For employees excluded from work under subsection (c)(10) and otherwise able and available to work, employers shall continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job. Employers may use employer-provided employee sick leave benefits for this purpose and consider benefit payments from public sources in determining how to maintain earnings, rights and benefits, where permitted by law and when not covered by workers’ compensation.5 (emphasis added)

It is unclear from both the ETS and the limited FAQs whether employers are required to “continue and maintain an employee’s earnings,” (i.e., provide “exclusion pay”) to all employees who are excluded from the workplace per the ETS. For example, are only “COVID-19 cases”6 and “COVID-19 exposures”7 entitled to exclusion pay? Or are employees who refuse to submit to testing per employer testing obligations under the ETS also entitled to exclusion pay? Moreover, is it within Cal/OSHA’s purview to create a right to exclusion pay?

Chief Parker did not provide answers to these questions at the Stakeholders Meeting. Instead, he communicated that Cal/OSHA’s forthcoming FAQs will address exclusion pay. Additionally, he reiterated that exclusion pay is only available to employees who are willing and able to work. In contrast, it is not available to employees who are too sick to work.

6.  Personal Protective Equipment and COVID-19 Exposures: The ETS defines a “COVID-19 exposure” as follows:

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 “high-risk exposure period” defined by this section. This definition applies regardless of the use of face coverings.8

It is clear from the ETS that the use of a face covering9 does not exempt an individual from qualifying as a COVID-19 exposure. It is unclear, however, whether the use of Personal Protective Equipment (PPE) would, in contrast, exempt an individual from qualifying as a COVID-19 exposure. At the Stakeholders Meeting, Chief Parker clarified that if an individual wears compliant respiratory protection (e.g., a fit-tested N95 respirator), they do not qualify as a COVID-19 exposure per the ETS. Additionally, Cal/OSHA’s Head of Research and Standards, Eric Berg, clarified that a “COVID-19 exposure” is, in effect a “close contact” as defined by the CDC and other authorities.

7.  Other Miscellaneous Issues and Forthcoming Guidance: At the Stakeholders Meeting, other issues raised included the need for clarification regarding privacy issues associated with information sharing and notification requirements, the differences between the ETS’s and AB 685’s notice requirements, and the terms “exposed workplace,” “outbreak,” “business day,” and “periodic inspections,” among others. 

WPI noted at the meeting that the term “outbreak” under the ETS is not limited to workers only.For example, a family of three persons, all of whom are COVID-19-positive shopping at a grocery store would trigger the definition of an outbreak at that store regardless of how the employer responded.It was further noted that this definition conflicts with the requirements of AB 685, which limits the definition of an outbreak as occurring only among workers.

It was also noted that the definition of outbreak under the ETS does not line up with the definition under another new California law, SB 1159.  That law addresses workers’ compensation issues relating to COVID, and defines an outbreak in terms of the percentage of employees who test positive – 4% of the workforce at a specific place of employment with more than 100 employees.  Under the ETS, an outbreak is based on the simple number of employees, regardless of the size of the workplace.  The same threshold number is applied to a workplace with 50 employees, as is applied to a workplace with 5,000.

In response to requests for clarification regarding the foregoing, Chief Parker communicated that clarification on these topics would be provided in the forthcoming FAQs.

Bottom Line

While the Stakeholders Meeting provided some clarification, many questions remain unanswered and there is still much to be desired regarding acknowledgment and revision of the onerous and potentially infeasible obligations the ETS imposes on California employers. Littler’s WPI and OSHA Practice Group will provide additional information on the ETS as it becomes available.  In the interim, given the significant changes employers are required to make pursuant to the order, employers with questions should consult with their attorney specializing in workplace safety and health.

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by Brooke Fishel, Director of Labor Relations