Key Points

• Cal/OSHA's COVID-19 Emergency Temporary Standard (ETS) became effective Nov. 30, 2020.
• Cal/OSHA clarified Section 3205's Aerosol Transmissible Diseases (ATD) Standard exemption applies to employees with occupational exposure to ATDs, not to all employees of an employer subject to the ATD Standard.
• Cal/OSHA issued a model COVID-19 Prevention Plan to assist employers.

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This week, in an attempt to clarify lingering ambiguities stemming from the hurried comment and approval process of the ETS, Cal/OSHA issued additional guidance, including FAQs and a model COVID-19 Prevention Plan.

Perhaps the most notable aspect of the new FAQ guidance is Cal/OSHA's clarification of the ETS exception to Section 3205, which requires employers to implement a COVID-19 Prevention Plan. Section 3205 exempts employees covered under Section 5199 or the Aerosol Transmissible Diseases ("ATD") Standard. Though the ETS's language could be read to mean that an employer with employees subject to the ATD Standard is exempt from the requirements of Section 3205, Cal/OSHA has confirmed that this is not the case. Instead, Cal/OSHA confirmed that it looks at the employee's job – not the employer – and explains that employees who are not identified in the employer's ATD Exposure Control Plan as having occupational exposure to ATDs are, in fact, covered by Section 3205 of the ETS. For example, administrative employees such as receptionists or office support staff working in facilities subject to the ATD Standard, who the employer has not identified in its ATD Exposure Control Plan as having occupational exposure to ATDs, are subject to the new Section 3205 requirements.

Cal/OSHA's clarification means that employers subject to the ATD Standard most likely will have some employees subject to requirements under the employer's ATD Exposure Control Plan and some under the employer's COVID-19 Prevention Plan. For example, Section 3205's pay provisions will cover those employees not identified in the employer's ATD Exposure Control Plan as having possible occupational exposure, while it will not cover those employees covered by the ATD Exposure Control Plan. Thus, some employers could have some employees with additional pay benefits and protected leave entitlements.

The FAQ guidance further failed to clarify the vague pay provisions in Section 3205, which state that "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," unless the employer can demonstrate that the exposure keeping the employee out of work is not work-related. For instance, the FAQs do not clarify the meaning of the phrase "able and available to work" such that an employee would be entitled to exclusion pay, or how an employer can demonstrate that the COVID-19 is not "work-related."

Finally, the FAQ guidance addressed enforcement in the coming weeks and months as employers work towards compliance. Unfortunately, Cal/OSHA provided no relief for employers hoping for a break from strict enforcement. Instead, it stated that "many of these regulations have already been required under employers' Injury and Illness Prevention Plan," including hazard recognition, and other source control procedures, implying that it should be easy to immediately comply. Cal/OSHA did, however, state that it would "consider" an employer's "good faith efforts" to work toward compliance when enforcing the regulation in the immediate future. Still, this statement is hardly reassuring in light of the fact that starting Jan. 1, 2021, Assembly Bill (AB) 685 will allow Cal/OSHA to issue serious citations prior to considering mitigating evidence, such as an employer's good faith efforts.

Cal/OSHA intends to hold a stakeholder meeting later this December to explain the ETS, answer questions, and give interested parties an opportunity to provide feedback. Though, it is doubtful that substantive changes will ensue as a result. Given that the COVID-19 ETS went into effect Monday, Nov. 30, 2020, employers should huddle with their counsel now to implement a compliant COVID-19 Prevention Plan in addition to complying with testing, training, and notice requirements in the event of a COVID-19 outbreak and any additional applicable protocols for employer-provided housing and transportation.