California Employers Face New COVID-19 Regulations

In what may be a bellwether for other states, California recently enacted statewide extensive COVID-19 emergency rules for business and industry. Issued in late November 2020 by the California Occupational Safety & Health Standards Board, the regulations apply to all places of employment except for:

• Those with employees working at home
• Those with only one employee who has no contact with other people
• Those already covered by Cal/OSHA’s aerosol transmission standard

California's New COVID-19 Regulations

While many of the regulations were part of previous guidance, the new requirements for employers include:

• Creating a written "COVID-19 Prevention Program" which covers everything from identifying and correcting COVID-19 hazards to training and instruction and reporting and record-keeping
• Asking workers to report, without fear of reprisal, possible COVID-19 exposure, symptoms, and hazards in the workplace

Employers must provide face masks and require workers to wear them, and they must separate employees by six feet or install cleanable solid partitions. They have to implement cleaning and disinfection procedures and maximize ventilation with outside air to the extent that it's feasible.

Employers need to report and keep records of COVID-19 cases, exclude exposed or infected workers from the workplace, provide free testing during COVID-19 outbreaks or "major" outbreaks (the number of cases in a specific time period determines the definition as well as mitigation and testing requirements) and create return-to-work criteria.

Employees are entitled to paid time off if they are excluded from the workplace because of exposure or infection.

In addition, if employers provide transportation or housing to their employees, they also must:

• Use higher efficiency air filters in mechanical ventilation systems, if possible
• Protect workers using employer-provided housing and transportation.

What Prompted the New Rules

The new regulations were a response to surging cases in the state and testimonies by workers about unsafe conditions at farms, factories, and schools. Dozens of essential workers testified about persistent outbreaks of COVID-19 in workplaces and employers' unwillingness to provide personal protective gear or workplace distancing. Fast-food workers, meatpackers, janitors, and teachers were among those who testified.

A recent medical journal report found a severe risk of workplace transmission among low-wage essential workers and their household members, many of whom are Latinx or Black.

State regulations may also be a response to the fact that the federal Families First Coronavirus Response Act (FFCRA), signed into law in March, was due to expire on Dec. 31, 2020. FFCRA entitled certain employees to up to two weeks of paid sick leave and allowed certain employees to take up to 12 weeks of expanded leave, ten of which are paid. The Act also provided tax credits to employers to help pay the costs of sick leave.

The stimulus package signed into law on Dec. 27, 2020, Section 286 extends the payroll tax credit for paid sick leave and paid family leave through March 31, 2020. However, it lets lapse the sections of FFCRA that required employers to pay sick or family leave. Employers who choose to pay for COVID-19 leave can get tax credits but they are not required to offer leave.

Local Action

State regulations may also be a response to the fact that the federal Families First Coronavirus Response Act (FFCRAA), signed into law in March, is due to expire on December 31, 2020. FFCRA entitled certain employees to receive up to two weeks of paid sick leave and allowed eligible employees to take up to 12 weeks of expanded leave, 10 of which are paid, for COVID-related reasons. The Act also provided tax credits to employers to help pay the costs of sick leave.

While FFCRA may be extended by Congress at some point, some cities, such as San Jose, CA, and Morehead City, NC, are taking no chances and have enacted their own COVID-19 paid leave regulations for business according to press reports.

Pushback on the new California regulations has come from the National Retail Federation (NRF) and others who object to the shifting of more of the costs of public health and safety onto the backs of employers. The NRF filed a lawsuit along with three small business plaintiffs to challenge the regulations.

In another response to the new California COVID-19 regulations, Amazon has encouraged its California warehouse and Whole Food employees to get weekly tests, according to reporting by CNBC. The tests will reportedly be given at urgent care clinics.

Other States' COVID-19 Regulations

Along with California, a few other states have passed their own COVID-19 workplace regulations for employers.

In July 2020, Virginia became the first state to adopt emergency safety standards, noting that federal law did not provide much clarity. The Virginia Safety and Health Codes Board adopted safety requirements based on an employee’s risk of exposure to coronavirus while on the job. The requirements apply to the vast majority of state government and private employers in Virginia. However, in September of that year, the legislature killed a bill to extend sick leave for COVID-19. In January of 2021, Virginia then became the first state to pass permanent COVID-19-related workplace safety measures.

In October 2020, the Michigan health department issued new emergency COVID-19 rules for employers. The measure included a daily health screening for employees not working remotely and the creation of a workplace COVID-19 preparedness plan.

And in November of 2020, the Oregon Occupational Safety and Health Administration released regulations aimed at reducing workplace COVID-19 infections, including reporting of employee infections and creating an infection control plan.

The Bottom Line

Leadership thus far in prescribing workplace COVID-19 prevention programs has been a matter largely in state hands. It remains to be seen whether the new presidential administration will take a more active role in workplace prevention or whether the states will need to continue to lead the effort. In November of 2021, President Biden advocated for sweeping workplace COVID-19 vaccine rules, testing, and mask-wearing that had been held up in the courts.