On September 29, 2020, California Governor Gavin Newsom signed into law Assembly Bill (AB) 2537, one of the latest in a series of legislative enactments designed to protect employees from COVID-19 exposure in the workplace.
California Labor Code Section 6403.3 took effect on January 1, 2021, and became operative on July 26, 2021. Section 6403.3 implements AB 2537, which required public and private employers in hospital settings to have a three-month stockpile of personal protective equipment (PPE) based on normal consumption by April 1, 2021.
The California Division of Occupational Safety and Health (Cal/OSHA) adopted emergency regulations to define the term “normal consumption.” The regulations state the following:
(b) As used in Labor Code section 6403.3, normal consumption means the average amount of the equipment specified below, for each category, type and size of the equipment, used by employees over the previous two-year period:
- N95 filtering facepiece respirators.
- Powered air-purifying respirators with high efficiency particulate air filters.
- Elastomeric air-purifying respirators and appropriate particulate filters or cartridges.
- Surgical masks.
- Isolation gowns.
- Eye protection.
- Shoe coverings.
Below is a summary of the key provisions included in the new law and corresponding regulations from Cal/OSHA.
Section 6403.3 applies to both public and private employers of workers in a general acute care hospital. Under the new law, these employers must “supply [PPE] to employees who provide direct patient care or provide services that directly support personal care in a general acute care hospital.” In addition to supplying PPE, employers must “ensure that employees use the [PPE] supplied to them.”
Personal Protective Equipment
Section 6403.3 defines PPE as “the equipment and devices necessary to comply with Sections 3380 and 5199 of Title 8 of the California Code of Regulations, provided that those requirements are at least as protective as those sections read on May 4, 2020.”
The Cal/OSHA regulations define “normal consumption” as well as provide details on how it should be calculated. The regulations state that covered employers should calculate normal consumption as follows:
(1) For each year beginning April 1, the quantity of each category, type and size of the specified equipment consumed by employees in the facility during the preceding two calendar years, from January through December, shall be added up and then divided by 8.
(2) In calculating the average consumption over the two-year period, the quantity used to represent consumption during the second year shall be capped at 200% of the first year’s consumption. The capped quantity shall be used as that year’s consumption level for subsequent years’ normal consumption calculations.
Under the regulations, employers “may determine for each category, type and size of equipment by any of the following methods”:
- The total quantity received in the facility from all sources for use by employees;
- The total quantity ordered by the facility from all sources for use by employees;
- The average monthly inventory;
- The quantity distributed to employees through all distribution methods, including separately chargeable and non-separately chargeable items.
The regulations also provide the following example of how to calculate normal consumption.
Note: For example, three months of normal consumption for the year beginning April 1, 2021, and ending on March 31, 2022, would be based on the total quantity of each category, type and size of the specified equipment consumed during the period January 1, 2019 through December 31, 2020, divided by 8. Assume that consumption of a particular category and type of equipment, in a size medium, is the following:
- 2019 is 1000 pieces
- 2020 is 3000 pieces
- 2021 is 1600 pieces
The quantity used to calculate the normal consumption for 2020 will be capped at 2000 pieces (1000 multiplied by 2). The quantity calculated for three months normal consumption for the year starting April 1, 2021 will thus be 3000 (1000 plus 2,000)/8 = 375 pieces. The calculation for three months of normal consumption for the year starting April 1, 2022 will be (2000 plus 1600)/8 or 450 pieces.
Documentation and Penalties
Section 6403.3 provides that employers must “establish and implement effective written procedures for periodically determining the quantity and types of equipment used in its normal consumption.” The statute also requires employers to provide inventories of their stockpiles and copies of their written procedures to Cal/OSHA upon request. Employers that fail to maintain proper supplies of PPE may be subject to civil penalties of up to $25,000 for each violation, “unless [Cal/OSHA] determines that the employer[s] could not meet the requirement due to issues beyond their control.”
Aerosol Transmissible Diseases Exposure Control Plans
Title 8 of the California Code of Regulations, section 5199(d), provides that an employer with facilities, services, or operations that are identified as being at increased risk for transmission of aerosol transmissible diseases (ATD) must “establish, implement, and maintain an effective, written ATD Exposure Control Plan … which is specific to the work place or operations(s), and which contains all of the elements in subsection (d)(2).” The regulations also state the following:
Employers of employees who are designated to provide services in surge conditions, and employers of employees who are designated to provide services to persons who have been contaminated as the result of a release of a biological agent … shall include procedures for these activities in the plan. The plan shall include work practices, decontamination facilities, and appropriate [PPE] and respiratory protection for such events. The procedures shall include how respiratory and [PPE] will be stockpiled, accessed or procured [emphasis added], and how the facility or operation will interact with the local and regional emergency plan.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center and on the California and Workplace Safety and Health blogs. Important information for employers is also available via the firm’s webinar and podcast programs.