370 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 14.17 Protection From Covid-19 14.17.1 Cal/OSHA Non-Emergency Covid-19 Standard The non-emergency COVID-19 standard took effect on February 3, 2023, and does not expire until February 3, 2025. The non-emergency COVID-19 standard is less burdensome than the previous Cal/OSHA emergency COVID-19 standard, and because it incorporates by reference certain public health recommendations, requirements have eased substantially in recent months as public health officials have recommended responding to COVID-19 in the same manner as other routine respiratory illnesses. That being said, employers do still need to, among other things, conduct contact tracing when there’s been an employee COVID-19 case, provide notice to close contacts, comply with heighted protocols during “outbreaks” and “major outbreaks,” require masking for 10 days for employees who test positive, report “major outbreaks” to Cal/OSHA, and offer no-cost testing when there’s been a workplace close contact. Cal/OSHA has published voluminous interpretive guidance on the permanent standards in the form of frequently asked questions.30 The FAQs state that they will be updated on an ongoing basis. Cal/OSHA also has a model Covid-19 Prevention Program. 14.17.2 Covid-19 Notifications and Reporting California employers were previously required to notify employees when there had been a Covid-19 case identified in the workplace, regardless of whether the employees were identified as “close contacts.” The notice also had to include information on Covid-19-related benefits and protections, and explain the disinfection and safety measures to be taken at the worksite in response to the potential exposure. As of January 1, 2024, employers no longer need to provide this notice, but records of the written notices must be retained for 3 years.31 14.18 Beefed Up Enforcement As of January 1, 2022, Cal/OSHA’s enforcement power was dramatically enhanced via legislation that created a rebuttable presumption that an employer with multiple worksites has committed an “enterprise-wide” violation if Cal/OSHA determines that either of the following factors “is true”:32 (1) The employer has a non-compliant written policy or procedure, or (2) Cal/OSHA “has evidence of a pattern or practice of the same violation or violations committed by that employer involving more than one of the employer’s worksites.” This presumption has the effect of creating an enterprise-wide violation for any written policy and procedure violations unless an employer can show that its other worksites have different, compliant, written policies and procedures. Appeal of an enterprise-wide violation will stay abatement, but if the violation is affirmed, abatement will be required across all of the employer’s California worksites. Enterprise-wide citations will carry the same penalties as willful or repeated citations, i.e., up to $134,334 per violation. The legislation also authorizes Cal/OSHA to seek an injunction restraining certain uses or operations of employment if it has grounds to issue a citation. This is a massive expansion of Cal/OSHA enforcement power; previously, Cal/OSHA could only seek an injunction if “the condition of any employment or place of employment or the operation of any machine, device, apparatus, or equipment constitutes a serious menace to the lives or safety of persons about it.” And finally, there’s now an “egregious violation” category for citations. Cal/OSHA can issue an egregious violation if it finds that at least one of the following seven criteria “is true”: (1) The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation, or
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