By James L. CurtisBrent I. Clark, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: Frederick will take over as the No. 2 official at OSHA, after having already spent 25 years as the top investigator at the United Steelworkers union’s health, safety, and environment department. In that job Frederick pressed for new safety standards on a number of issues, including workplace violence, according to a union news release.

According to a United Steelworkers news release, James Frederick will serve as Deputy Assistant Secretary of Labor for Occupational Safety and Health (OSHA), purportedly following three decades of occupational safety experience, including 25 years in the USW’s health, safety, and environment department.

Also selected is Joseph T. Hughes Jr., who will serve as Deputy Assistant Secretary for Pandemic and Emergency Response for OSHA. Hughes was previously the director of the National Institute of Environmental Health Sciences Worker Education and Training Program, which provided grants to unions, companies and nonprofits to train rank-and-file workers on occupational health and safety.

Given Frederick’s union background, we anticipate that he will pursue the traditional labor priorities in occupational safety and health law, as we had previously predicted the Biden Administration would adopt.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis, Jeryl L. OlsonAdam R. Young, A. Scott HeckerPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The DOL and U.S. EPA have published their 2021 increases to civil penalties.

We have blogged previously about the annual adjustments to the maximum civil penalty dollar amounts for OSHA and EPA violations. They have now finalized the 2021 inflation adjustments, which increase the penalties again.

Under the 2021 rule, the new maximum OSHA civil penalties will be:

2020 Penalties 2021 Penalties
Other than Serious Violations: $13,494 $13,653
Serious Violations: $13,494 $13,653
Repeat Violations: $134,937 $136,532
Willful Violations: $134,937 $136,532
Failure to Abate (Per Day): $13,494 $13,653

The new OSHA penalty amounts are applicable to OSHA citations issued after January 15, 2021, for violations occurring after July 15, 2020.

Readers familiar with EPA’s penalty structure know that environmental statutes typically set out a “per day” penalty, as well as a maximum statutory penalty. However, certain statutes allow for civil judicial enforcement that does not carry a maximum statutory penalty.

Under the 2021 rule, the new maximum EPA civil penalties will be:

2020 Penalties 2021 Penalties

Clean Air Act                        Daily:

Maximum (per violation):

$48,192 – $101,439

$385,535

$48,762 –  $102,638

$390,092

Clean Water Act                   Daily:

Maximum (per violation):

$22,320 – $55,800

$278,995

$22,584 – $56,460

$282,293

RCRA                                    Daily: $61,098 – $101,439 $61,820 -$102,638
CERCLA                               Daily:
(including EPCRA)
Maximum (per violation):

$58,328

$174,985

$59,017

$177,053

EPA’s 2021 penalties are effective for violations that occurred after November 2, 2015, where the penalty was assessed on or after December 23, 2020. EPA and DOL are required to continue to adjust maximum penalties for inflation by January 15 of each new year.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Bernard Olshansky, Ilana Morady, Elizabeth M. Levy, and Coby Turner

Seyfarth Synopsis: The California Department of Industrial Relations’ Office of Administrative Law (OAL) approved an Emergency Temporary Standard regarding COVID-19, effective November 30, 2020. After holding a stakeholders meeting in December, the Division released its second iteration of frequently asked questions, which included nearly 40 new FAQs.

As we reported, on November 30, 2020, the California Office of Administrative Law (OAL) approved Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS). Soon after, Cal/OSHA published its first set of FAQs, which left many crucial questions unanswered, leaving employers struggling to understand a complex new set of safety standards (some of which contradicted the California Department of Health), COVID-19 testing, reporting, and employee pay continuation requirements.

In the wake of a mid-December stakeholders meeting designed to address questions surrounding the new ETS, Cal/OSHA promised to update the FAQs. Governor Newsom also stepped in and issued an Executive Order on December 14, 2020, requiring Cal/OSHA to follow the state Department of Health guidance and to date any updates to the ETS or FAQs, so that employers would understand when, and what, the Division was changing. Weeks after the regulated community had been anticipating the update, Cal/OSHA finally posted additional FAQs on January 8, 2021. The newest slew of FAQs provide a number of clarifications and updates. We highlight some of the notable issues below.

What’s New?

  • Earnings Continuation For “Able and Available” Employees. The FAQs confirm that the earnings continuation obligation is designed for “available and able” employees who have been removed from the workplace due to transmission related concerns (as opposed to those who are sick, who are not eligible). Along these lines, the FAQs explain that if someone cannot return after the normal quarantine period has run, the person is likely not available and able to work due to illness (which would render them ineligible for the earnings continuation).
  • Workers’ Compensation Eliminates Earnings Continuation. Employees who are receiving temporary disability benefits under workers’ compensation are not entitled to also receive earnings continuation, because Cal/OSHA deems those eligible for disability as not “able and available” to work.
  • Other Earnings Continuation Exceptions. The FAQs explain that the same framework an employer would use to rebut the presumption an employee contracted COVID in the workplace under SB 1159 would apply to determine if the “exposure” was work related, such that an employee would be eligible for earnings continuation. Under this framework, for employers to demonstrate exposure is not work related, they should conduct “comparable investigations” to show it is more likely than not that the exposure didn’t occur in the workplace.
  • ATD Standard. As we previously blogged, the ETS does not apply to (1) employees who are already covered under the Cal/OSHA Aerosol Transmissible Diseases (“ATD”) standard, (2) employees who are working from home, and (3) single-employee employers who do not have contact with others. Importantly for the healthcare industry and other employers covered by the ATD standard, the FAQs clarify that an employee in a single-person workplace cannot be subject to both the ETS and the ATD standard. This means, for example, that an employee covered by her employer’s ATD plan due to occupational exposure to aerosol transmissible diseases (including but not limited to COVID-19) is still covered by the ATD plan even if she’s in an area of the hospital that serves a purely administrative function.
  • Many employers may already be familiar with the ETS provision that requires solid partitions (e.g. Plexiglas) to be installed at fixed work locations where it is not possible to keep six feet of separation. Cal/OSHA’s guidance now clarifies that unless they are complete barriers (presumably meaning floor to ceiling), employers need to consider workers within six feet of each other as close contacts for purposes of contact tracing, testing, and quarantine.
  • Location and Testing Requirements. Cal/OSHA clarifies that when testing must be provided, it does not need to be provided at the employee’s work location. Companies can refer employees to a free testing site, clinic, or their own physician, so long as the employees incur no cost for the testing, including reimbursement for any testing-related costs such as mileage or parking fees. Cal/OSHA also clarified that employers do not have to mandate or require that employees be tested in an outbreak setting—they are only required to offer testing.
  • Length of Quarantine. Although a 14-day quarantine period is recommended, “an exposed employee who does not develop symptoms of COVID-19 may return to work after 10 days have passed since the date of last known exposure.” Health care, emergency response, and social services workers may return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage. (This update was mandated by the Governor’s Executive Order that Cal/OSHA align with the California Department of Public Health’s updated quarantine guidance.)
  • Potential Waivers For Staffing Shortages. As many employers may already know, the ETS permits companies to seek a waiver from Cal/OSHA’s return to work criteria for employees who have COVID-19 or who have been exposed to COVID-19, but the details of the waiver process have been unclear. While the waiver submission process remains unclear, Cal/OSHA clarified that “an operation must provide goods or services, the interruption of which would cause an undue risk to a community’s health and safety in order to qualify.” Cal/OSHA noted that this is intended to be narrower than the definition of “critical infrastructure” industries, and to receive such an exemption, an employer must provide specific information, including describing their operations and the effect of the quarantine on such operations.
  • How To Calculate An Outbreak. The FAQs address a number of questions related to outbreak testing. A common question from employers has been how to measure the 14-day period to determine if an outbreak under the ETS has occurred. Cal/OSHA now confirms that employers “should look to the testing date of the cases and review any cases for which the tests occurred within a 14-day period to evaluate whether the other criteria for an outbreak have been met.”
  • Considering Shifts in Determining Outbreaks. Employers were also uncertain about whether or how to consider shifts when evaluating whether there have been three or more COVID-19 cases in a single exposed workplace. For example, if an employer had three COVID-19 positive employees in the breakroom on Monday, but each one of them was on a different shift and they didn’t cross paths, would that trigger outbreak testing? Cal/OSHA now says no, employers can consider each shift as a separate “exposed workplace” if the facility is well ventilated and the cleaning and disinfection requirements of the ETS are met between or before shift changes.

Will There Be More Guidance?

The FAQs state that they will be updated on an ongoing basis to help stakeholders understand the ETS.  In addition, the Consultation Branch will be available to answer employer questions.

What Happens If Our Company Has Issues Complying With the ETS?

We previously covered some of the penalties that could result from non-compliance with the new ETS. Cal/OSHA states that it will consider employer good-faith efforts to comply with the ETS before issuing citations. Additionally, the FAQs state that Cal/OSHA will not assess monetary penalties for any alleged violations until February 1, 2021, if those alleged violations would not have been considered a violation of a pre-existing Cal/OSHA standard such as the respiratory protection standard, or the “IIPP standard.”

So, employers have been given a bit of good news that the new provisions under the ETS won’t result in monetary penalties from Cal/OSHA for a few more weeks.

How Do Our Company’s Obligations Change Once Our Employees Are Vaccinated?

In short, they don’t. Cal/OSHA’s guidance clarifies that once an employee is vaccinated, all prevention measures must continue to be implemented. Cal/OSHA says that the impact of vaccines will likely be addressed in a future revision to the ETS.

What Else Is Cal/OSHA Going To Do?

Cal/OSHA’s statement that the impact of vaccines will probably be addressed in a future revision to the current ETS indicates that Cal/OSHA plans to release a new version of the ETS in the near future. As always, we closely track Cal/OSHA’s news releases and pending legal challenges to the ETS.

Workplace Solutions

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or COVID-19 Task Force Team.

By Benjamin D. BriggsBrent I. Clark, James L. CurtisAdam R. Young, Ilana R. Morady, A. Scott HeckerPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: If confirmed as Labor Secretary, past union leader, Mayor Marty Walsh, would succeed former corporate employment attorney, Eugene Scalia. Secretary Scalia has been criticized by organized labor and other groups for issuing joint employer and worker classification policies perceived as business-friendly and for declining to adopt an emergency COVID-19 rule requiring employers to take action to protect their workers from the virus.

Known as a personal friend of President-elect Biden, Mayor Walsh may have more of a voice in the Administration than the average Secretary of Labor. Before becoming a big-city mayor with all the responsibilities that entails, Walsh was a member of Laborers Local 223 in Boston and then head of the Boston Building and Construction Trades Council from 2011 to 2013. He worked with business and community leaders to “promote high-quality development, and he created a program called Building Pathways that has become a model for increasing diversity in the workplace and providing good career opportunities for women and people of color.” In the Massachusetts House of Representatives, Mayor Walsh led on issues like job creation and worker protection, skills that align with the challenges he would face as Secretary of Labor.

Given his union and worker protection background, we expect Mayor Walsh to pursue the enhanced enforcement course we previously predicted a President Biden OSHA would adopt.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By A. Scott HeckerBrent I. Clark, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: On December 28, 2020, the Department of Transportation, Federal Aviation Administration, announced a final rule governing the “Operation of Small Unmanned Aircraft Systems Over People.” This new rule could lead OSHA to push for increased use of drones in its inspections.

OSHA inspections operate on the “plain sight rule”: anything the compliance officer lawfully observes during the inspection can be the basis of the a citation. But OSHA policy prohibits compliance officers from exposing themselves to hazards during inspections, often limiting their ability to climb ladders and otherwise observe conditions on towers or hard-to-reach places.

In recent years, OSHA has sought to remedy those limitations by photographing and videoing worksites with Unmanned Aircraft Systems (“UAS” or “drones”). OSHA’s enforcement policy concerning the use of UASs in inspections currently requires OSHA to “obtain express consent from the employer prior to using UAS.”  No regulation required employers to allow the use of drones, and many employers chose not to allow drones, citing safety hazards of drones falling on employees and other individuals near the worksite. However, OSHA has acknowledged that it has requested “blanket” authority from the FAA to operate drones in airspace across the country.

The FAA’s final rule amends 14 C.F.R. part 107 to “expand[] the ability to conduct operations over people, provided that the operation meets the requirements of one of four operational categories” described in a newly established subpart D, and represents “the next step in the FAA’s incremental approach to integrating UAS into the national airspace system.”  OSHA’s drone policy requires OSHA UAS Program Manages to comply with 14 C.F.R. part 107, including “apply[ing] and obtain[ing] approval for FAA part 107, subpart D, waiver when unable to operate under part 107 subpart rules.” Because the FAA’s new rule expands the circumstances under which drones can operate without a waiver or exemption, it could open the door for OSHA to change its policy and use drones more freely at worksites – without employer consent – if OSHA can deploy equipment complying with one or more of the new subpart D categories.

The FAA declined invitations from NIOSH “to join it in developing a performance-based, tiered approach for operations of small unmanned aircraft near people at worksites to minimize the occupational risks,” or “to collaborate with” OSHA, for now. But OSHA may seek to have a greater voice in partnering with the FAA to develop specific rules governing drone use in workplace inspections, particularly if the FAA’s “incremental approach” continues to allow for more flexible drone use.

Fewer restrictions on the usage of drones over people could provide one avenue for the enhanced enforcement efforts Seyfarth anticipates under a Biden Administration OSHA. Employers should remain mindful of this dynamic environment as the country transitions to a new year and a new president.

We have blogged previously about drones in the workplace. See Future Enterprises, Government Inspections, and Drones: Agencies are Using Drones More and More for Site Inspections, Send in the Drones: Transforming the Workplace through the Use of Drone Surveillance, and OSHA Publishes Interim Enforcement Response Plan for COVID-19 Inspections.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. Clark, Benjamin D. BriggsJames L. Curtis, Adam R. YoungPatrick D. Joyce, Ilana R. Morady, and Craig B. Simonsen

Seyfarth Synopsis: The National Retail Federation (NRF) and others brought an action against the California Department of Industrial Relations (DIR), Division of Occupational Safety and Health (Cal/OSHA), and the Occupational Safety & Health Standards Board (Board) claiming that the Agency did not legally establish its recent emergency COVID-19 workplace regulations, while adding undue financial burdens to employers.

The December 16, 2020, complaint for declaratory relief, in National Retail Federation, et al., v. CalOSHA, et al., (Superior Court of California, County of San Francisco), alleges that Cal/OSHA ignored legal procedures in establishing its COVID-19 emergency temporary standards (ETS), and warns of dire financial consequences for businesses in California if they are forced to comply.

The Complaint criticizes the Board for forcing through an Emergency Temporary Standard (“ETS”) that required almost immediate “clarification” through FAQs and guidance, which in part appear to directly contradict the language of the ETS itself. The complaint also challenges the COVID-19 testing requirements and notes that the requirements apply equally to employers with 5 or 5,000 employees at the same workplace, with no adjustment in threshold levels for employers of differing sizes.

In addition, the complaint argues that Cal/OSHA violated employers’ Due Process rights because the ETS “arbitrarily and capriciously requir[es] them to exclude employees from the workplace with potentially ruinous losses of productivity and revenue, while simultaneously requiring these employers to pay the full costs of the labor that they needed, but were denied, all without having engaged in reasoned decision-making.” The Complaint alleges that the ETS was issued in violation of the Administrative Procedures Act and that there is “a total lack of data as to workplace exposures to the coronavirus,” with the Board relying upon “speculative claims” concerning the effectiveness of employer’s existing COVID-19 safety programs. The complaint also takes aim at the provisions of the ETS which regulate wages and employee benefits, areas over which Cal/OSHA has not been granted statutory authority.

The ETS has been criticized because it fails to address employees who are immune from COVID-19 (recently infected and recovered) and appears to require that they be tested, removed from work, and quarantined even though they are not at risk form the virus. Further, as nationwide vaccination programs are under way the ETS fails to address the use of vaccines or account for employees who are immune from the virus due to vaccination.

The Division has promised additional FAQ’s and guidance, but as of the writing of this blog, has not released them

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis, Ilana Morady, Adam R. YoungPatrick D. JoyceElizabeth M. Levy, Coby Turner, and Craig B. Simonsen

Seyfarth Synopsis: Cal/OSHA will hold a stakeholder meeting on the California OSHA COVID-19 emergency temporary standard (ETS), which became effective November 30, 2020 and includes new documentation, COVID-19 testing, earnings continuation, and reporting obligations affecting most companies.

The Division of Occupational Safety and Health (Cal/OSHA) is convening a stakeholder meeting on December 18, 2020, at 12:00 p.m., on the COVID-19 Emergency Temporary Standards, which became effective on November 30, 2020.

According to the notice, the purpose of the meeting is to explain key provisions of the regulations and to establish a focused agenda for a future Advisory Committee meeting to consider amendments to the regulations. Cal/OSHA and stakeholders will discuss specific provisions of the regulations. Participants may propose specific clarifications or improvements to the regulations. The meeting will not include discussion of general COVID-19 and regulatory issues.

This is an open, working meeting to assist Cal/OSHA in preparing for an Advisory Committee meeting. Attendees are encouraged to review the most updated ETS Frequently Asked Questions prior to the meeting.

To participate in the meeting, Join via Zoom Meeting, Meeting ID: 964 9344 6100, and Passcode: 033178.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Robert A. Fisher, Benjamin D. BriggsAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: A beverage wholesaler has appealed an arbitration award to federal court where the Company discharged a CDL driver who tested positive for cocaine. The arbitrator had ruled that the Company did not have just cause for termination.

A recent complaint in federal court highlights the challenges of terminating union-represented employees for testing positive for a controlled substance.  The International Brotherhood of Teamsters (Union) Local 59 represented drivers for the Colonial Wholesale Beverage Co. (Colonial). According to Colonial’s complaint in Colonial Wholesale Beverage Co. v. Local 59, International Brotherhood of Teamsters, No. 20-cv-12136-DPW (MA DC Dec. 1, 2020), the Company terminated one driver, Michael Jenney, after he tested positive for cocaine.

The Union grieved the termination, contending that the termination was without just cause and took the grievance to arbitration.  At arbitration, the Company presented evidence that it had terminated Mr. Jenney based on its substance abuse policy as outlined in the parties’ collective bargaining agreement (Agreement) and its Employee Handbook (Handbook). In addition, Colonial argued that its substance abuse policy was “rooted in its belief that allowing the kind of reckless behavior demonstrated by Jenney, poses too high of a threat to the Plaintiff’s business, to the public at large, and to the other members of the Plaintiff’s staff in terms of the future liability, the reputational harm, the distrust from its clients, the increases to its insurance premiums, the breakdown in worker dependability, the threat of toxicity in the workplace, and – most importantly – the immeasurable public safety concerns.”  The Union argued that Mr. Jenney’s positive drug test was due to cocaine use at a party several days before the test, and that he was not impaired at work or the time of the positive test.  The arbitrator concluded that the Company lack just case to terminate the employee.

Colonial moved to vacate the award in federal court.  In its complaint, Colonial argued that the arbitrator exceeded his authority by applying an incorrect standard.  Rather the focus his analysis on whether there was just cause for Jenney’s authority, Colonial contended the arbitrator instead focused his analysis on the overly broad issue of “what should be the appropriate outcome for Jenney in light of his positive test result.”  The grounds to vacate a labor arbitration award are narrow, but courts will vacate awards where an arbitrator exceeded his authority under the contract or substituted his judgment as to what is “industrial justice.”

Regardless of whether Colonial is successful, the arbitration award in this matter highlights several fundamental misunderstandings about drug impairment and drug testing.  The National Safety Council advises employers to maintain zero tolerance drug policies for employees in safety sensitive positions because drug impairment greatly increases the probability of serious accidents, injuries, and deaths. To maintain zero tolerance policies in a unionized environment, employers must take responsive action against any employee who tests positive for cocaine — employers cannot ignore positive test results because an employee claims the drug was used at a party and not the day of the test.  If employers fail to enforce zero tolerance substance abuse policies, they may engender claims for disparate treatment and may lose their ability to protect employee safety from drug impairment in the future.  Though it was not raised in the Complaint, mandatory drug testing is required for CDL holders by the United States Department of Transportation.  Failed drug tests can result in a stay in revocation of permission to drive trucks from state and federal agencies.

Further, current drug testing technology is limited such that positive tests are correlated with drug impairment; they are not tools with which non-experts can definitely prove drug impairment at any specific time.  The law presumes individuals who fail a drug test are impaired by cocaine, and under a just cause analysis, the employer has the burden of proof.  It is rare that an employer will have evidence as to when an employee took the illegal drug.  The arbitrator essentially overruled the employer’s only tool to detect drug use, and negated the use of employer drug policies in a safety sensitive environment.  Employers should take note of this decision and document any reasonable suspicion facts where possible.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team or the Labor & Employment Team.

By James L. CurtisAdam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Centers for Disease Control and Prevention has just released revised guidance on quarantine time allowing for two quarantine options in addition to the standard 14 day quarantine.

The Centers for Disease Control and Prevention (CDC) has just released revised guidance on quarantine time for those who may have been exposed to the novel coronavirus (COVID-19).  The CDC continues to “recommend” the 14 day quarantine period, but now advises that “acceptable alternatives” to the 14 days are either 7 days for those who have received a negative test, or 10 days for those who have not been tested.  The CDC instructs that under either alternative, individuals must: watch for symptoms until 14 days after exposure; if any symptoms develop, immediately self-isolate and contact the local public health authority or healthcare provider; wear a mask, stay at least 6 feet from others, wash your hands, avoid crowds, and take other steps to prevent the spread of COVID-19.

In adopting the new quarantine time guidance, Options to Reduce Quarantine for Contacts of Persons with SARS-CoV-2 Infection Using Symptom Monitoring and Diagnostic Testing, the CDC notes that reducing the length of quarantine may increase quarantine compliance by reducing economic hardship and, in addition, the reduction in time may lessen stress on the public health system, especially when new infections are rapidly rising.

Irrespective of this revised CDC guidance, employers must still comply with any state or local public health requirements, which may require 14 day quarantine.

Accordingly, employers may now consider reducing quarantine times for employees consistent with these guidelines so long as state or local public health requirements do not require the longer, 14 day, quarantine period.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By:

Seyfarth Synopsis: The California Department of Industrial Relations’ Office of Administrative Law has approved a California OSHA emergency temporary standard regarding COVID-19, effective November 30, 2020. It brings with it new documentation, COVID-19 testing, earnings continuation, and reporting obligations affecting most companies.

As we have previously blogged, Cal/OSHA’s Emergency Temporary Standard (ETS) was adopted at the Standards Board’s November 19, 2020 meeting. The evening of November 30, 2020, the California Office of Administrative Law (OAL) approved the ETS. The ETS became effective immediately: all employers must comply with its requirements right away. Shortly after it became effective, Cal/OSHA, a.k.a. the Division issued Frequently Asked Questions and template documents.

What Are The Biggest Developments For Our Company?

As we previously blogged, the ETS does not apply to employees who are already covered under the Cal/OSHA Aerosol Transmissible Diseases standard, to employees who are working from home, and to single-employee employers who do not have contact with others.

For employers who are covered, some ETS provisions already causing confusion are:

  • Whenever there has been a COVID-19 case at a workplace, employers must “offer COVID-19 testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace.”
  • The ETS notification provisions that apply within one business day when a COVID-19 case has been identified in the workplace are not the same as what’s required under AB 685 (which goes into effect January 1, 2021), addressed in our blog here. For example, AB 685 requires the notice to be written, and the ETS does not. AB 685 requires notification to “employers of subcontracted employees,” whereas the ETS requires notification to independent contractors who were present at the workplace. Other seemingly semantic inconsistencies exist. For example, AB 685 refers to a COVID-19 “infectious period” whereas the ETS refers to a “high-risk exposure period”; both terms apparently refer to the time period employers must use in evaluating who may have had a COVID-19 exposure. The underlying definitions of these periods are essentially the same under AB 685 and the ETS.
  • Employers now must track and record all COVID-19 cases with the employee name, contact information, occupation, location of work, the most recent date worked at the workplace, and the date of a positive COVID-19 test. The information must be made available to employees and authorized employee representatives (with personal identifying information removed).
  • Employers now must “evaluate the need for respiratory protection in accordance with [the Cal/OSHA Respiratory Protection Standard, 8 CCR § 5144, when the physical distancing requirements … are not feasible or are not maintained.” Although there are exceptions for momentary or incidental exposures while employees are moving around and where employers can demonstrate that six feet of separation is not “possible,” the ETS has the potential to bring many employers under the Respiratory Protection Standard. Note that Cal/OSHA’s refers to “possible” separation instead of “feasible” separation.
  • In what has been criticized as an Cal/OSHA over-reach, the ETS mandates that when employees are excluded from work for certain COVID-19 related reasons (i.e., having, or having been exposed to COVID-19), but remain “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.” While some current paid sick leave laws, like the California Supplemental Paid Sick Leave law (which we blogged about here), provide that an employee may choose to use up to 80 hours of paid sick time to replace earnings while they are kept out of work due to concerns about spreading COVID-19, the new Cal/OSHA ETS mandates that employers pay for this time and provides no cap on the amount of earnings that must be continued if employees are excluded from work. This eliminates the cap on paid time set forth in Labor Code Sections 248 and 248.1, as well as the 500-employee threshold imposed by the statewide law. The only bright spots for employers are that the ETS language about maintaining earnings (1) does not apply where the employer demonstrates the COVID-19 exposure is not work-related and (2) it allows benefit payments from public sources (e.g., unemployment benefits) to be considered in maintaining earnings.
  • Despite already existing requirements for employers when there are COVID-19 workplace “outbreaks,” the ETS includes additional, and quite burdensome, testing, investigation, correction, and notification requirements, and creates two categories for when these requirements attach: “Multiple COVID-19 Infections and COVID-19 Outbreaks” and “Major COVID-19 Outbreaks.” This requirement does not change based on the number of employees at a workplace: an employer with ten employees and an employer with 1,000 employees at a workplace both must test 100% of employees, with vastly different cost considerations. For larger employers, testing has the potential to be very costly.
  • For employers who provide housing and transportation to employees, there are special requirements such as ensuring housing units are cleaned at least once a day, providing six feet of distancing in dormitories, and providing private spaces for exposed employees to isolate.
  • The standard includes various other requirements, such as creating a written COVID-19 Prevention Program, which appears nearly duplicative of an IIPP.

What Happens If Our Company Doesn’t Comply With The ETS?

Non-compliance with the new ETS can result in an OSHA citation and penalty in accordance with the Division’s penalty structure. Different penalties attach to the different classifications of citations, which are Regulatory, General, Serious, Repeat, and Willful. Regulatory penalties typically attach to posting and recordkeeping requirements, General penalties typically attach for violations having some non-serious relationship to safety and health, and Serious penalties may attach if there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.

Given the seriousness of COVID-19, many alleged violations in connection with COVID-19 could be classified as Serious. If any violation under any classification is found by Cal/OSHA to be substantially similar to a violation issued in the five years prior, then the violation can be classified as Repeat. And a Willful citation may issue if Cal/OSHA determines the employer either knew what it was doing was a violation, or was aware of an unsafe condition, and made no reasonable effort to eliminate it.

Penalties run the gamut, with the maximum penalty for Regulatory or General being $13,277, the maximum for Serious being $25,000, and the maximum for Repeat or Willful being $132,765.

Is There Any Light At The End Of The Tunnel?

It is still unclear. Cal/OSHA’s Chief told the Standards Board that “some employers are going to need more time. We intend to fully take that into account in determining how they’re implementing the rule.” And, he noted the Division would consider “good faith” efforts on the part of employers. The Board also indicated it would convene a stakeholder committee to suggest updates to the ETS to address the top concerns from employers—information on this committee is still forthcoming.

Workplace Solutions

This is a rapidly developing area that we are closely tracking. We will update our readers as additional guidance or legal challenges develop with the new ETS. For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or COVID-19 Task Force Team.