It has been three months since California approved COVID-19 from the Division of Occupational Safety and Health (“Cal OSHA”). Emergency Temporary Standard (“ETS”). Cal OSHA’s rushed implementation of the ETS, which imposed confusing new obligations on employers, left many perplexed and resulted in several legal challenges to the ETS. For example, some agricultural employers challenged the ETS on the grounds that it was ambiguous, imposed onerous compliance obligations on employers, and did not consider cost or feasibility. Other employers continued to raise concerns about ETS requirements in public forums, through written questions to Cal OSHA, and directly with their representatives.
Cal OSHA has responded to concerns raised by employers and professional associations by issuing a online FAQ series beginning of January 2021. Following the first round of FAQs, and largely in response to further questions from employers, Cal OSHA quietly updated and revised the FAQs on January 26, 2021 and February 26, 2021. In its latest updated FAQ series, Cal OSHA added new guidance on testing and scope of ETS coverage.
One of the main areas of confusion for employers since the adoption of the ETS has been around the requirements for COVID-19 testing. This is because Cal OSHA’s ETS uses inconsistent language to discuss requirements (eg, “offer” versus “provide” in the context of required testing). The ETS also explicitly states that “all employees in the exposed workplace must be tested and then tested again a week later,” raising the question of whether an employer should require employees to be tested or expulsion from the workplace if the test is refused when required. . Employers have also struggled to understand how testing should be provided to employees (for example, on-site testing using a third party or requiring employees to be tested by a health plan provider). From the original FAQ, it is clear that Cal OSHA considers the testing provisions to require an employer to inform their employees of how they can obtain a COVID-19 test at no cost and during working hours or paid hours when testing is required (i.e. following a work-related exposure if you work in an exposed workplace during a minor or major outbreak). The original FAQ confirmed that employers had the same notification and testing obligations whenever testing was required under the ETS. But the FAQ largely did not explain how the employer could arrange this test, beyond simply stating that employers were free to use national or local testing services, arrange testing with a third party or to use health care providers’ testing options.
Recent FAQ updates clarify that employers have two main options: the employer can (1) partner with a healthcare provider to establish a testing program; or (2) use free testing services provided by the state or county health department. To locate county testing facilities, the employer should consult the local county or city health department website. To find the right website, employers can visit the California Department of Public Health or the National Association of County and City Health Officials website and click on the appropriate county or city health department. Although not mentioned in the updated FAQ, the state also maintains a website at COVID-19 testing sites that employers can use to find testing locations. Updates to Cal OSHA’s FAQs also indicate that employers who need to test large numbers of employees on a regular basis can partner with the California State Branch Laboratory in Valencia (“VBL”) to implement place employee on-site testing.
While the updates signal to employers that they can use many different resources to meet testing obligations under the ETS, the updates fail to address some of the practical and feasibility challenges that employers are faced. The Cal OSHA FAQ, in particular, does not specify whether employees who refuse to submit to testing when required or directed by the ETS should be barred from the workplace. Instead, Cal OSHA only states that employees can refuse and do not need to sign a refusal form. The FAQs are also silent on how an employer can effectively manage some of the costs associated with testing, such as travel expenses, testing time, and disbursements. This can be particularly challenging for employers who have employees working in remote areas where testing locations are limited, so using available test centers to conduct the tests is impractical or can incur substantial time costs. paid or in travel expenses. Additionally, while Cal OSHA’s FAQs determine that employers can arrange for testing with a third-party medical provider, Cal OSHA’s FAQs and guidance does not even attempt to advise employers on where to begin to set up a workplace test plan. As a result, employers lack clear guidance on how to organize workplace testing in a way that meets Cal OSHA’s requirements under the ETS and is compatible with Centers for Disease Control and Prevention (“CDC”) Workplace Testing Considerations. This, in turn, leads to more questions about the employer’s obligations for managing test records, selecting COVID-19 tests to use in its workplace testing plan, and coordinating testing with employees.
Cal OSHA’s ETS applies broadly to California workplaces and has only a few limited exceptions. Cal OSHA’s ETS, for example, does not apply to employees when they are covered by the Aerosol Transmissible Disease (“ATD”) standard. In attempting to clarify the scope of this exception, the original Cal OSHA FAQ stated that an employee in the same workplace could not be subject to both ETS and ATD standards. This exception is critically important for healthcare employers, as well as emergency responders, as these employees are often continuously occupationally exposed to COVID-19, so compliance with the ETS would be untenable. Additionally, these employees are protected from workplace exposures to COVID-19 through ATD’s strict preventative measures and mandatory use of personal protective equipment.
To further shed light on the exception, Cal OSHA’s updated FAQ confirms that emergency responders who are protected by the ATD standard are exempt from the ETS. This is shown by Cal OSHA’s example that firefighters cannot be subject to ETS and ATD standards at the same time. Simply put, the firefighter must be protected against COVID-19 under one of the standards, but not both. If the employer’s ATD prevention plan does not identify the firefighter as having occupational exposure to aerosol-borne diseases, or if the firefighter is not protected under that plan, the ETS will apply. Healthcare and emergency response employers will therefore need to carefully assess exposures to COVID-19 in their workplaces and operations, and ensure that employees are protected by preventive measures under the ETS standard. or ATD. Under these guidelines, however, an employer cannot take the position that their entire workplace or operations are exempt from the ETS if only some of their employees are covered by the ATD standard. Health care and emergency response employers may therefore need to comply with both the ATD and the ETS in different areas of their operations.
Given Cal OSHA’s accelerated ETS rollout and ongoing litigation surrounding the ETS, the agency will likely continue to post new FAQs and guidance for employers.
© 2022 Jackson LewisNational Law Review, Volume XI, Number 60