Business Law

Dear Santa: Bring Me a Written COVID-19 Prevention Program Policy: Cal/OSHA Implements New COVID-19 Emergency Temporary Standards

By: June Monroe and Elise O’Brien

Effective November 30, 2020, Cal/OSHA implemented new temporary standards imposing significant obligations on California employers relating to COVID-19 policies and procedures.  First, employers must establish, implement and maintain an effective written COVID-19 Prevention Program containing a minimum 11-part policy (discussed below). Employers must follow requirements for testing in certain situations and for notifying employees of exposure and public health departments of workplace outbreaks. If an employee tests positive for or was exposed to COVID-19, they must be excluded from the workplace for 14 days after the exposure or until they meet the return-to-work guidelines. 

The Prevention Program must include the following 11 components: 

(1) Communicating with Employees: The program must detail a reporting system for exposure and possible hazards of COVID-19, accommodating employees with increased risk of severe COVID-19 illness, and access to COVID-19 testing.

(2) Identifying and Evaluating COVID-19 Hazards: The plan must set forth how to identify, screen, evaluate, mitigate, and respond to COVID-19 hazards in the workplace.

(3) Investigating and Responding to COVID-19 Cases: Employers must implement procedures for investigating COVID-19 cases in the workplace, including verifying cases, collecting information, contact tracing to determine potential exposure to others, and when appropriate provide HIPAA compliant notice to employees of potential exposure. Employers also must offer COVID-19 testing, at no cost to the employee and during their working hours, if they have had a potential exposure in the workplace.

(4) Corrective Action of COVID-19 Hazards: The policy must implement a plan to assess and take corrective action relating to COVID-19 hazards.

(5) Training: Employers must provide training and instruction on the COVID-19 pandemic and the employer’s COVID-19 policies and procedures.

(6) Physical Distancing: Employees must be separated by at least six feet, unless the employer can demonstrate that such separation is not possible.

(7) Face Coverings: Employers are required to provide face coverings and ensure that they are properly worn by employees.

(8)Engineering, Administrative, and Personal Protective Equipment Controls: Employers must consider engineering controls (i.e. installing plexiglass to reduce aerosol transmission); administrative controls (i.e. disinfection and cleaning protocols) and evaluate the need for PPE (e.g., gloves, goggles).

(9) Testing, Reporting and Recordkeeping: Employers must keep records and notify public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period) within 48 hours after learning of the outbreaks. Employers are required to provide testing to all employees at the workplace in the event of an outbreak (except for those who were not present during the period of the outbreak). Testing must continue on a weekly basis until 14 days pass without a new positive case.

(10) Exclusion of COVID-19 Cases: Employees with COVID-19 are excluded from the workplace until return-to-work requirements are met. Employees who have had a COVID-19 exposure must also be excluded from the workplace for 14 days after their last known exposure.

(11) Return to Work Criteria: Based on CDC guidelines, COVID-19 cases may not return to work until: (a) the employee has been fever free (100.4 degrees F) for at least 24 hours without the use of fever-reducing medications; (b) other COVID-19 symptoms have improved; and (c) at least 10 days have passed since COVID-19 symptoms first appeared. If the employee tested positive but never developed symptoms, the employee may return to work after a minimum of ten days have passed since the test date. Cal/OSHA does not, however, require a negative test to return to work.   Cal/OSHA has approved and published a sample COVID-19 Model Prevention Program with forms to assist employers with developing their own written program. The new standards apply to California employers except those with one employee who does not have contact with other persons, with employees only working from home, or who are already covered by Cal/OSHA’s Aerosol Transmissible Diseases Standards. Consult with your workers’ compensation carrier for further guidance or reach out to our employment law team of lawyers for assistance.   

This article was originally prepared by June Monroe ( and Elise O’Brien ( of Rynn & Janowsky, LLP, in Irvine, CA, and is republished with permission.

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