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Cal/OSHA issues new COVID-19 workplace rules

Issue Date: November 25, 2020
By Kevin Hecteman

The California Occupational Safety and Health Standards Board has issued new protocols for employers, intended to protect their employees from hazards related to COVID-19.

The new Emergency Temporary Standard, adopted Nov. 19, requires agricultural employers to ensure beds in employer-provided housing are spaced at least 6 feet apart, and that housing areas are disinfected daily. People using employer-provided transportation must sit at least 3 feet apart and wear masks. The regulation requires employers providing transportation to ensure disinfection of commonly touched surfaces.

The regulation also contains enhanced testing requirements for suspected outbreaks at the workplace, and mandates additional sick leave pay for those who fall ill or have been exposed to COVID-19 and need to quarantine.

The Office of Administrative Law has 10 days to review the regulation. It would take effect immediately upon approval. The proposed regulation may be viewed at www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Emergency-txtbrdconsider.pdf.

The new rules expand on Cal/OSHA safety and health guidance for agricultural employers, which may be read at www.dir.ca.gov/dosh/Coronavirus/COVID-19-Infection-Prevention-in-Agriculture.pdf.

Bryan Little, director of employment policy for the California Farm Bureau and chief operating officer of Farm Bureau affiliate Farm Employers Labor Service, said following COVID-19 guidance is imperative. He described a general checklist and daily checklist in the agricultural guidance as being "at the core" of the document.

However, he added, the new regulation contains a thicket of problems, starting with how far Cal/OSHA's authority reaches when it comes to housing and transportation.

"They essentially want to make you responsible for housing or transportation that your employees use that you may not have actually arranged, and therefore you have no control over," Little said.

But, he said, the question is, what's the limit? Little gave an example: Someone thinks they've been exposed to COVID-19. They don't want to go to work and risk co-workers, but also don't want to go home and risk family.

"You refer them to the Housing for the Harvest program," Little said, referring to the state's temporary housing program for people who can't safely quarantine at home. "Have you arranged that housing at that point?"

The program is administered by local nonprofit groups working with county housing departments and other local agencies, he noted, and is currently available in 13 counties.

Little also pointed out that many agricultural employers who use the H-2A program—under which nonimmigrant employees come to the U.S. on temporary visas to work—rely on hotels to house people.

"Aside from the issue of whether the employer can be held accountable for something he doesn't control, there is another issue," he said. "You thought you had enough housing to house 50 people. Now you have enough housing to house 25. If you need 50 people to do the work that you need to do, and that's what you applied to bring in under the H-2A program, where are you going to put the other 25 people?"

Finding another hotel on short notice "isn't that simple," he added. "You must have housing agencies inspect that housing before you can allow H-2A employees to occupy it. That doesn't happen overnight."

Little also noted that on Jan. 1, additional reporting requirements take effect as part of Assembly Bill 685, a new law requiring employers to notify employees when workplace exposures occur or may have occurred. Employers have 24 hours from the time they become aware—or should have become aware with diligent inquiry—an exposure has occurred.

In addition, the state issued a limited stay-at-home order last week, effective from 10 p.m. to 5 a.m. in counties ranked in the purple tier— counties considered to have widespread COVID-19 effects.

The curfew, as it's often called, requires people to remain home during those hours, with limited exceptions. Among them are people traveling to or from work, or at work, in a "critical infrastructure" business—such as agriculture.

Little said FELS recommends agricultural employers supply their employees with a letter that verifies the bearer's employment in a critical industry, in case the bearer is questioned for being out during curfew. The letter is available on the FELS COVID-19 page at www.fels.net/1/ 30-labor/654-ready-for-covid-19.html and is provided in English and Spanish.

(Kevin Hecteman is an assistant editor of Ag Alert. He may be contacted at [email protected].)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.




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