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09 December 2020
Who is covered?
What is required?
Must employers that already have COVID-19 safety policies make any adjustments?
How long will these new emergency standards remain in place?
What about interaction with other state and local laws?
On 19 November 2020 California's Division of Occupational Safety and Health (Cal/OSHA) adopted emergency temporary standards on COVID-19 prevention in the workforce, effective as of 30 November 2020 if approved as expected by the Office of Administrative Law. These temporary standards will require most Californian employers to implement a written COVID-19 prevention programme meeting certain criteria. While many employers have already followed Cal/OSHA guidance to minimise employees' exposure to COVID-19, the new requirements warrant an immediate review of current policies to ensure compliance. For any companies that have not yet created a written plan, the rules require implementation of a written policy.
The new standards apply to all Californian employers, except for:
Healthcare employers excluded from this new standard include:
The central requirement of the new emergency standards is that employers must prepare, implement and maintain a written COVID-19 prevention programme. The prevention programme must:
While many employers have already implemented protocols that are contemplated by the new emergency standards, the emergency rules impose specific and nuanced obligations on employers in the event of COVID-19 exposure or an outbreak in the workplace that existing workplace safety plans are unlikely to include, including the following :
While this list is not exhaustive of the new requirements under the emergency standards, it is clear that even California employers with robust written COVID-19 safety policies will likely be required to amend existing policies to achieve compliance.
Finally, the new emergency standards place additional burdens on employers that provide employee housing or motor vehicle transport to and from work. Employers that provide these services for employees should carefully review the requirements to determine what additional measures must be taken to comply with the new standards.
Once approved and published, the emergency standards will remain in effect for 180 days unless renewed, withdrawn or replaced.
Clearly, these new requirements are substantial and raise many questions, specifically as to how they relate to other county, state and federal rules and regulations. Cal/OSHA plans to publish FAQs soon. However, given the exceedingly short timeframe for compliance, employers should immediately begin to review and update their COVID-19 protocols and procedures to ensure compliance with this emergency rule.
For further information on this topic please contact Ellen M Bronchetti at McDermott Will & Emery's San Francisco office by telephone (+1 628 218 3800) or email (firstname.lastname@example.org). Alternatively, please contact Michelle Strowhiro at McDermott Will & Emery's Los Angeles office by telephone (+1 310 277 4110) or email (email@example.com). The McDermott Will & Emery website can be accessed at www.mwe.com.
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