COVID-19 and Construction: Cal/OSHA Emergency Temporary Standards Address Issues for Industry Employers

The California Division of Occupational Safety and Health (Cal/OSHA) recently updated its frequently asked questions (FAQs) guidance, “COVID-19 Emergency Temporary Standards Frequently Asked Questions”. The FAQs clarified some areas of the regulation and provided additional guidance for California employers, particularly construction companies. Under the Emergency Temporary Standards (ETS) adopted on November 30, 2020, California construction companies face specific standards related to transportation and workplace exposures that create unique questions and challenges.

Section 3205.4 of the ETS applies to employer-provided motor vehicle transportation, which is more specifically defined as “transportation to and from work, which is any transportation of an employee, during the course and scope of employment, provided, arranged for, or secured by an employer including ride-share vans or shuttle vehicles, car-pools, and private charter buses, regardless of the travel distance or duration involved.”

Section 3205.4 requires employers to prioritize shared transportation in the following order:

1. “Employees residing in the same housing unit shall be transported in the same vehicle.”
2. “Employees working in the same crew or worksite shall be transported in the same vehicle.”
3. “Employees who do not share the same household, work crew or worksite shall be transported in the same vehicle only when no other transportation alternatives are possible.”

For California construction companies that provide shared transportation for workers, the section 3205.4 requires the following precautions:

• Physical distancing of six feet and face coverings for employees waiting for transportation.
• The employer must “develop, implement and maintain effective procedures for screening and excluding drivers and [passengers] with COVID-19 symptoms prior to boarding.”
• The employer must “provide hand sanitizer in each vehicle and ensure that all drivers and riders sanitize their hands before entering and exiting the vehicle. Hand sanitizers with methyl alcohol are prohibited.”
• All high-contact surfaces used by drivers (i.e., steering wheel, shifter, door handles, seatbelt buckles, armrests, etc.) must be “cleaned and disinfected between different drivers.”
• All high-contact surfaces used by passengers (i.e., door handles, seatbelt buckles, armrests, etc.) must be “cleaned and disinfected before each trip.”
• The employer must “provide sanitizing materials and ensure they are kept in adequate supply.”
• The driver and any passengers must be “separated by at least three feet in all directions during the operation of the vehicle, regardless of the vehicle’s normal capacity.”
• The driver and all passengers must be “provided with and wear a face covering in the vehicle.”
• The vehicle windows must be “kept open, and the ventilation system set to maximize outdoor air and not set to recirculate air.”
• The windows may be closed only if at least one “of the following conditions exist:
  1. The vehicle has functioning air conditioning in use and the outside temperature is greater than 90 degrees Fahrenheit.
  2. The vehicle has functioning heating in use and the outside temperature is less than 60 degrees Fahrenheit.
  3. Protection is needed from weather conditions, such as rain or snow.
  4. The vehicle has a cabin air filter in use and the U.S. EPA Air Quality Index for any pollutant is greater than 100.”

The transportation standards do not apply in only two specific circumstances: (1) when “the driver and all passengers are from the same household” and (2) “when necessary for emergency response.”

The January 8, 2021, FAQs attempted to clarify some of the duties employers have under the ETS, many of which would apply to multiemployer worksites such as large construction projects. The FAQs also sought to clarify some of the additional steps that employers must take when a workplace has multiple COVID-19 infections or an outbreak.

Steps Employers Must Take Without a Positive COVID-19 Employee

Section 3205 of the ETS states that employers must “conduct workplace-specific identification of all interactions, areas, activities, processes, equipment, and materials that could potentially expose employees to COVID-19 hazards.”

• “This shall include identification of places and times when people may congregate or come in contact with one another, regardless of whether employees are performing an assigned work task or not, for instance during meetings or trainings and including in and around entrances, bathrooms, hallways, aisles, walkways, elevators, break or eating areas, cool-down areas, and waiting areas.”
• “This shall include an evaluation of employees’ potential workplace exposure to all persons at the workplace or who may enter the workplace, including coworkers, employees of other entities, members of the public, customers or clients, and independent contractors. Employers shall consider how employees and other persons enter, leave, and travel through the workplace, in addition to addressing fixed work locations.” (Emphasis added.)
• “The employer shall conduct periodic inspections as needed to identify unhealthy conditions, work practices, and work procedures related to COVID-19 and to ensure compliance with employers’ COVID-19 policies and procedures.”
• “All employees shall be separated from other persons by at least six feet, except where an employer can demonstrate that six feet of separation is not possible, and except for momentary exposure while persons are in movement.”
• “Employers shall provide face coverings and ensure they are worn by employees over the nose and mouth when indoors, [and] when outdoors and less than six feet away from another person.”
• “Employers shall implement measures to communicate to non-employees the face coverings requirements on their premises.”
• “Employers shall exclude employees with COVID-19 exposure from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case.”
• Employers must ensure that COVID-19 cases are excluded from the workplace until the return to work requirements of subsection (c)(11) are met (i.e., “[a]t least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications,” “COVID-19 symptoms have improved,” and “[a]t least 10 days have passed since COVID-19 symptoms first appeared.”)

Steps Employers Must Take Following a Single COVID-19 Case

When a COVID-19 positive case has been confirmed at the place of employment, the ETS requires employers to take the following steps:

1. “Determine the day and time the COVID-19 case was last present and, to the extent possible, the date of the positive COVID-19 test(s) and/or diagnosis, and the date the COVID-19 case first had one or more COVID-19 symptoms, if any were experienced.”
2. “Determine who may have had a COVID-19 exposure. This requires an evaluation of the activities of the COVID-19 case and all locations at the workplace which may have been visited by the COVID-19 case during the high-risk exposure period.”
3. “Give notice of the potential COVID-19 exposure, within one business day, in a way that does not reveal any personal identifying information of the COVID-19 case, to the following:
   1. All employees who may have had COVID-19 exposure and their authorized representatives.
   2. Independent contractors and other employers present at the workplace during the high-risk exposure period.”
4. “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 and provide them with the information on benefits.”
5. “Investigate whether any workplace conditions could have contributed to the risk of COVID-19 exposure and what could be done to reduce exposure to COVID-19 hazards.”

Steps Employers Must Take After Three or More COVID-19 Cases (Multiple Infections)

When there are three or more COVID-19 cases in an exposed workplace within a 14-day period, the ETS triggers additional steps for employers. For multiemployer worksites, the three total cases can include other workers or subcontractors at a workplace because the outbreak definition does not limit the three cases to only one employer. The calculation is based on the workplace definition and is not three cases per employer. Once three cases have been identified in a workplace, an additional set of employer duties and processes arise, including employee COVID-19 testing, exclusion of COVID-19 cases from the workplace, investigation of multiple cases, review of COVID-19 policies, and reporting to the local health department.

Steps Employers Must Take Following 20 or More COVID-19 Cases (Major Outbreak)

If there are 20 or more COVID-19 cases in an exposed workplace within a 30-day period, the ETS triggers further safety processes, including “twice a week COVID-19 testing,” exclusion of COVID-19 cases from the workplace, investigation of the major outbreak, and more. In addition to the investigation requirements applicable when multiple infections occur, the ETS requires employers to take the following hazard correction actions:

1. “In buildings or structures with mechanical ventilation, employers shall filter recirculated air with Minimum Efficiency Reporting Value (MERV) 13 or higher efficiency filters if compatible with the ventilation system. If MERV-13 or higher filters are not compatible with the ventilation system, employers shall use filters with the highest compatible filtering efficiency. Employers shall also evaluate whether portable or mounted High Efficiency Particulate Air (HEPA) filtration units, or other air cleaning systems would reduce the risk of transmission and shall implement their use to the degree feasible.”
2. “The employer shall determine the need for a respiratory protection program or changes to an existing respiratory protection program under section 5144 to address COVID-19 hazards.”
3. “The employer shall evaluate whether to halt some or all operations at the workplace until COVID-19 hazards have been corrected.”
4. “Any other control measures deemed necessary by [Cal/OSHA] through the Issuance of Order to Take Special Action, in accordance with title 8 section 332.3.”

As with a multiple infection situation, employers must also report to the local health department.

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 as additional information becomes available. Important information for employers is also available via the firm’s webinars, podcasts, and California and Workplace Safety and Health blogs.