Cal/OSHA Approves New COVID-19 Safety Orders
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On Thursday, the California Occupational Safety and Health Standards Board (Cal/OSHA) unanimously approved a proposal for emergency temporary standards related to COVID-19 prevention. This order applies to all California employers and affects all businesses in the adult industry that operate in California.
The approved order is expected to go into effect on November 30 and expires in 180 days. However, it can be extended for an additional 180 days while the Standards Board works on permanent regulations. The Standards Board will convene an Advisory Committee in December to further explore how the regulations affect employers and to consider adjustments to the regulations. Cal/OSHA will provide resources to employers regarding the implementation of the new orders. Key Points:
All employees are required to wear face coverings (defined as a cloth mask) while at work, except for specific tasks that can not feasibly be performed with a face covering.
Every workplace in California is required to have a COVID Prevention Plan that can be shared with Cal/OSHA and employees upon request.
Any COVID-19 exposure in a California workplace needs to be investigated and documented by the employer. If there are three positive tests within a two-week period, it needs to be reported to the local health department.
If an employee is exposed at work, and needs to quarantine, the employer must continue to provide salary and other benefits while the person is quarantined, regardless of whether they are able to work from home.
There are new, specific regulations about the cleaning and precautions in employee housing and transportation, which may include model houses, production houses, and drivers, if provided by the production company or studio.
Any visitor to your set, whether an employee, contractor, or vendor, has the ability to report unsafe working conditions to Cal/OSHA. Failure to comply with the following can result in significant fines and extensive litigation.
We are providing a summary of the more significant changes below, but every employer should consult their legal counsel in order to understand how the new regulations might apply to them and their unique workplaces, and how to best comply. FSC will revise the Health and Safety Guidelines for Adult Film Production to comply with the new COVID-19 orders from Cal/OSHA and will hold a town hall meeting to discuss the regulations and answer questions on Friday, December 4 at 11 AM Pacific. Register here.
Summary of the COVID-19 Regulations
The new regulations amend existing Section 3205 COVID-19 Prevention of Subchapter 7 General Safety Orders, and adds new Sections 3205.1-3205.4.
1. Definitions:
COVID-19 Case: A person who has a positive COVID-19 test; or a person who has been ordered to isolate by a local or state health official; or a person who has died due to COVID-19.
COVID-19 Exposure: Being within six feet of a COVID-19 case, during the High-Risk Exposure Period, for a cumulative total of 15 minutes or more in any 24-hour period, regardless of the use of face coverings.
High-Risk Exposure Period: For those who develop COVID-19 symptoms, the time period from two days before they first develop symptoms until ten days after symptoms first appeared, and 24 hours have passed without fevers, and symptoms have improved. For those who test positive and are asymptomatic, the time period from two days before until ten days after the date of collection for their first positive COVID-19 test.
COVID-19 Hazard: Exposure to potentially infectious material that may contain the SARS-CoV-2 virus, including objects, surfaces, and airborne droplets and small particle aerosols that result from a person exhaling, talking, coughing, or sneezing.
COVID-19 Symptoms: Fever of 100.4 degrees Fahrenheit or higher, chills, cough, shortness of breath or difficulty breathing, fatigue, muscle or body aches, headache, new loss of taste or smell, sore throat, congestion or runny nose, nausea or vomiting, or diarrhea, unless a healthcare professional has determined the symptoms were caused by known condition other than COVID-19.
COVID-19 Test: A viral test for the SARS-CoV-2 virus that is approved by the FDA or has an Emergency Use Authorization from the FDA to diagnose infection with the SARS-CoV-2 virus. (Workers Compensation law is more specific on this point and requires a PCR RNA test.)
Exposed Workplace: Any work location, working area, or common area at work used or accessed by a COVID-19 case during the high-risk period (defined below).
Face Coverings: A tightly-woven fabric or non-woven material with no visible holes or openings, which covers the mouth and nose.
2. Written COVID-19 Prevention Program for All Workplaces (Section 3205)
All California employers are already required to have a written Injury and Illness Prevention Program (IIPP). The IIPP must now include a COVID-19 Prevention Program. This section applies to all employees and places of employment except those with only a single employee who has no contact with other people, and employees who work from home.
While many companies in the adult industry already comply with these regulations, it’s essential that you have them written and included in your IIPP. Failure to do so can result in significant fines.
The written COVID-19 Prevention Program must address:
Communication of Information and Risks
Asks employees to report, without fear of reprisal, any COVID-19 symptoms or exposures, and possible COVID-19 hazards in the workplace.
Provides information about access to COVID-19 testing.
Provides information about COVID-19 hazards and the employer’s COVID-19 policies and procedures to anyone in contact with the workplace.
Identification and Evaluation of COVID-19 Hazards
Allows employees to participate in identifying COVID-19 hazards.
Develops and implements a process for screening employees for and responding to employees with COVID-19 symptoms.
Develops policies and procedures to respond immediately and effectively to a COVID-19 case in the workplace to prevent or reduce the risk of transmission.
Evaluates the workplace to identify all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards, treating all persons as potentially infectious.
Evaluates how to maximize the quantity of outdoor air for indoor locations
Conduct periodic inspections to identify unhealthy conditions and ensure compliance with policies and procedures.
Investigation and Response to COVID-19 Cases in the Workplace
Develops an effective procedure to investigate COVID-19 cases in the workplace. This includes verifying COVID-19 case status, receiving information regarding test results and onset of symptoms, and identifying and recording COVID-19 cases.
Executes the following actions when there has been a COVID-19 case in the workplace:
Determine the day and time the COVID-19 case was last present, the date of the COVID-19 test or diagnosis, and the date of the onset of symptoms, if present.
Determine who may have had exposure to the COVID-19 case.
Within one business day, give notice of the potential COVID-19 exposure in a way that does not reveal the identity of the COVID-19 case.
To all employees with a potential COVID-19 exposure, offer COVID-19 testing at no cost to them, during working hours.
Investigate any workplace conditions that may have contributed to the risk of COVID-19 exposure and reduce COVID-19 exposure hazards.
Keep confidential the personal identifying information of COVID-19 cases and person(s) with COVID-19 symptoms. This includes medical records, such as test results.
Correction of COVID-19 Hazards
Implement effective policies and procedures for correcting unsafe or unhealthy conditions or work practices in a timely manner based on the severity of the hazard.
Training and Instruction
Policies and procedures to protect employees from COVID-19
Information regarding COVID-19-related benefits to which the employee may be entitled.
That COVID-19 is an infectious disease that can be spread through the air, and maybe spread through contaminated surfaces and objects, and that an infectious person may show no symptoms.
Methods of physical distancing of at least six feet, and the importance of combining physical distancing with wearing face coverings.
Particles containing the virus can travel more than six feet, especially indoors, so physical distancing must be combined with face coverings and handwashing to be effective.
The importance of frequent handwashing.
Proper use of face coverings and the fact that face coverings are not respiratory protective equipment.
COVID-19 symptoms and the importance of not coming to work and obtaining a COVID-19 test if the employee has any COVID-19 symptoms.
Physical Distancing
All employees will be separated from other persons by at least six feet of distance except where the employer can demonstrate this is not possible.
Face Coverings
Provide face coverings and ensure that they are worn by employees over the nose and mouth at all times when indoors, as well as when outdoors and less than six feet away from another person.
Exceptions to the face covering requirement include:
When an employee is alone in a room.
While eating and drinking at a workplace if employees are at least six feet apart and the outside air supply to the room has been increased to the maximum extent possible.
Employees who cannot wear face coverings due to medical or mental health conditions, or who are hearing-impaired or communicating with a hearing-impaired person.
Specific tasks that cannot feasibly be performed with a face covering. This exception is limited to the time period in which the task is actually being performed, and the unmasked employees are tested at least twice weekly for COVID-19.
Employees exempted from wearing a face covering for medical or mental health conditions or disability must wear an effective alternative such as a face shield with a drape attached, if their condition permits it.
Any employee not wearing a face covering or effective alternative must be at least six feet away from all other persons unless the unmasked employee is tested at least twice a week for COVID-19.
Employers may not use COVID-19 testing as an alternative to face coverings when face coverings are otherwise required by this section.
Other Engineering Controls, Administrative Controls, and Personal Protective Equipment
Install cleanable solid partitions at fixed work locations where it is not possible to maintain physical distancing requirements at all times.
Maximize the quantity of outside air provided for buildings with mechanical or natural ventilation
Implement cleaning and disinfecting procedures.
Provide handwashing stations and instruction, and hand sanitizers.
Evaluate the need for additional personal protective equipment such as goggles, gloves, and face shields, and provide it to employees as needed.
Reporting, Recordkeeping, and Access
Report information about COVID-19 cases at the workplace to the local health department whenever required by law.
Report immediately to the Division (Cal/OSHA) any COVID-19 related serious illnesses or death of an employee occurring in the workplace or in connection with any employment.
Maintain records of the steps taken to implement the written COVID-19 Prevention Program.
The written COVID-19 Prevention Program will be made available to all employees and to representatives of the Division (Cal/OSHA) upon request.
Keep a record of and track all COVID-19 cases with the employee’s name, contact information, occupation, the location where the employee worked, the date of the last day in the workplace, and the date of a positive COVID-19 test.
Exclusion of COVID-19 Cases
Exclude all COVID-19 cases from the workplace until the return to work requirements described in the next section have been met.
Exclude employees with COVID-19 exposure from the workplace for 14 days after the last known exposure to a COVID-19 case.
For employees excluded from work who are otherwise able and available to work, the employer must continue and maintain the employee’s earnings, seniority, benefits, and job status as if the employee had not been removed from their job. This can include sick leave and workers' compensation benefits. This does not apply if the employee is unable to work for reasons not related to protecting them from workplace COVID-19 transmission, or if the employer demonstrates that the COVID-19 exposure is not work-related.
At the time that the employee is excluded, the employer will provide the employee with information on the benefits described in this section.
Return to Work Criteria
COVID-19 cases with symptoms shall not return to work until ten days after symptoms first appeared, and 24 hours have passed without fevers, and symptoms have improved.
COVID-19 cases who tested positive but did not develop symptoms shall not return to work until a minimum of ten days after the date of collection for their first positive COVID-19 test.
A negative COVID-19 test shall not be required for an employee to return to work.
If an order to isolate or quarantine was issued by a local or state health official, the employee shall not return to work until the period is completed or the order is lifted.
3. Workplaces With Multiple COVID-19 Infections and COVID-19 Outbreaks (Section 3205.1)
Special regulations and requirements apply at a workplace when there are three or more COVID-19 cases in a 14-day period. COVID-19 Testing
Immediately upon being covered by this section, all employees in the workplace will be tested for COVID-19, and then tested again a week later. A negative test result does not shorten the duration of the quarantine period.
After the first two required COVID-19 tests, the employer will provide continuous testing at least once per week until this section no longer applies.
Exclusion of COVID-19 Cases
Same exclusions requirements as in Section 3205 above.
Investigation of Workplace COVID-19 Illness
The employer shall immediately investigate and determine possible workplace related factors that contributed to the COVID-19 outbreak.
COVID-19 Investigation, Review, and Hazard Correction
The employer shall immediately review their relevant COVID-19 policies, procedures, and controls and implement changes as needed to prevent further spread of COVID-19.
The investigation and review shall be documented and include:
Investigation or new or unabated COVID-19 hazards.
The review shall be updated every 30 days that the outbreak continues.
The employer shall implement changes to reduce the transmission of COVID-19 based on the investigation and review.
Notifications to the Local Health Department
The employer shall contact the local health department immediately but no longer than 48 hours after the employer knows or should have known of three or more COVID-19 cases.
The employer shall provide to the local health department the total number of COVID-19 cases and for each COVID-19 case, the employee’s name, contact information, occupation, the location where the employee worked, business address, hospitalization or fatality status, and any other requested information.
4. Workplaces With Major COVID-19 Outbreaks (Section 3205.2)
If there is a major outbreak at your workplace, defined as 20 or more COVID-19 cases within a 30-day period, there are additional requirements until there are no new COVID-19 cases detected for a 14-day period. COVID-19 Testing
Provide twice a week COVID-19 testing to all employees present at the exposed workplace during the relevant 30-day period and who remain at the workplace.
Exclusion of COVID-19 Cases
Same requirements as in Section 3205 described above.
Investigation of Workplace COVID-19 Illnesses
Same requirements as in Section 3205 described above.
COVID-19 Hazard Correction
In addition to the requirements described in Section 3205 above, the employer will take additional requirements.
Increased mechanical ventilation requirements.
Determine the need for a respiratory protection program.
Evaluate whether to halt some or all operations until the COVID-19 hazards have been corrected.
5. COVID-19 Prevention in Employer-Provided Housing
This section applies to employer-provided housing, which includes any place or area of land, or any portion of any housing accommodation. Assignment of Housing Units
Housing assignments will be prioritized in the following order:
Residents who usually maintain a household together outside of work shall be housed in the same unit without other persons.
Residents who work together at the same worksite shall be housed in the same housing unit without other persons.
Employees who do not usually maintain a common household or worksite shall be housed in the same housing unit only when no other housing alternatives are possible.
Physical Distancing and Controls
Ensure the premises are of sufficient size and layout to permit six feet of physical distancing between residents in housing units and common areas.
Ensure beds are placed at least six feet apart in all directions and positioned to maximize the distance between sleepers’ heads.
In housing units, maximize the supply of outdoor air and increase filtration efficiency.
Face Coverings
Supply face coverings to all residents and provide information on when and where they should be used.
Cleaning and Disinfecting
Ensure that housing units, bathrooms, kitchens, and common areas are effectively cleaned and disinfected at least once a day.
Ensure that unwashed dishes, drinking glasses, cups, eating utensils, and similar items are not shared.
Screening
Encourage residents to report COVID-19 symptoms.
COVID-19 Testing
Implement effective COVID-19 testing policies and procedures for residents who had COVID-19 exposures or have COVID-19 symptoms.
Isolation of COVID-19 Cases and Person With COVID-19 Exposure
Effectively isolate COVID-19 cases and residents exposed to COVID-19 from all other occupants.
6. COVID-19 Prevention in Employer-Provided Transportation To and From Work
This section applies to employer-provided motor vehicle transportation to and from work.
Assignment of Transportation
Prioritize shared transportation assignments in the following order:
Employees residing in the same housing unit shall be transported in the same vehicle.
Employees working at the same worksite shall be transported in the same vehicle.
Employees who do not share a housing unit or worksite shall be transported in the same vehicle only when no other alternatives are possible.
Physical Distancing and Face Coverings
Driver and riders are separated by at least three feet in all directions during the operation of the vehicle regardless of the vehicle’s normal capacity.
Provide a face covering for the driver and all riders. It must be worn in the vehicle and while waiting outside the vehicle.
Screening
Implement effective procedures for screening and excluding drivers and riders with COVID-19 symptoms prior to boarding shared transportation.
Cleaning and Disinfecting
Ensure that all high-contact surfaces used by riders are cleaned and disinfected prior to each trip.
Ensure that all high-contact surfaces used by the driver are cleaned and disinfected between different drivers.
Provide sanitizing materials and keep an adequate supply.
Ventilation
Ensure that vehicle windows are kept open (with some exceptions) and the ventilation system is set to maximize outdoor air and not set to recirculate air.
Hand Hygiene
Provide hand sanitizer and ensure that drivers and riders sanitize their hands before entering and exiting the vehicle.
Read the full proposed regulation changes on the Cal/OSHA website. Review your COVID-19 Prevention Program with your employment attorney.
Standards Board Unanimously Adopts Emergency Temporary Standards to Protect Workers from COVID-19
