Blog

The ABC’s of CPP’s

By Lee R. Goldberg, Esq.

www.callawyers.com

January 12, 2021

No, I am not writing about some new government loan program – though they are out there. I am writing about the importance of (and regulated requirement for) good, written and implemented policies, practices and procedures for businesses in the COVID era (yes folks – it will be here for a while longer).

As of November 30, 2020, with limited exceptions, all companies are required to prepare and adopt a written COVID Prevention Program (“CPP”) (California Code of Regulations, Title 8, Section 3205(c)). Cal OSHA has posted a “sample” plan at www.dir.ca.gov/dosh/coronavirus/ets.html. However, CPP’s must be tailored and adapted to the particular needs and operations of each business.

Moreover, the adoption and implementation of a CPP is the best way to insulate your company from, and reduce company exposure to, COVID-related regulatory citations, fines and closure orders, private class action claims, and employee labor and other regulatory complaints. I have read about Cal OSHA citations and fines in the hundreds-of-thousands of dollars.

In the last two months, I’ve assisted two (2) clients through COVID outbreaks and resulting Cal OSHA and health department (LA/Orange County) notices and inspections. One client had more than 25 of its approximate 90 employees test positive over a two-week period. The other company had 13 of approximate 60 employees test positive. Both governmental inspections/notices resulted in no citations, no violations, no fines, no imposed shut downs, and no further action.

How was this accomplished considering the shocking numbers of the COVID companywide outbreaks and the California regulatory environment? I believe that three things were determinative: (1) a good written CPP was in place and followed; (2) good documentation was maintained; and (3) immediate action and complete, detailed, documented response to Cal OSHA and health department notices, information requests, and physical inspections.

The following is a mixture of good/recommended health practices and regulation that should serve as an outline for the type of CPP that should be written, adopted, and implemented by California companies. The following is only an organizational outline, and is not comprehensive of all potential requirements for your particular jurisdiction, operational needs, or industry.

A. Operations Policies:

• Work Remotely – As many employees, and as often as possible.
• Masks – Provide and require masks be worn at all times at the business.
• In Person Meetings – Only when unavoidable, no closed door meetings.
• Office Gatherings – Lunch/break rooms, prep rooms, etc. use limited in number and seating proximity. No social office gatherings.
• Sanitizer – Provide hand sanitizer at all entrances, exits and common areas (and even personal workstations) and require use when entering premises, encourage use often throughout workday.
• Sanitizer Wipes – Provide at all personal workstations and common workstations (i.e., copiers, etc.). Require use to clean personal workstations each time arrive and leave. Require common areas wiped after each use.
• 6 Foot Spacing – If possible, no employee may work closer together than 6-feet apart. If not possible, no employees may spend more than 15 minutes in any day less than 6-feet apart.
• Postings – Post all coronavirus-related required Cal OSHA and county health department notices – there are several – including when a company has a COVID positive employee.
• Special Cases – Companywide COVID testing at regular intervals, may be a good practice depending upon your business. This is required in some industries. Also, plexi-glass barriers, air filtration, and UV light treatment are all considerations depending upon reasonable business needs.

B. Access Restrictions:

• Restrict Access to Business Premises – Only those necessary for the actual ongoing operations. No guests, no visitors, limited vendors.
• Restrict Access within Business Premises – Only those persons who need to be in a specified area are allowed entrance to that area (e.g., vendors only in certain contained area, employees stay in areas limited to their work/personal needs, limits on numbers of persons in any particular area of the work premises, etc.).
• Entrance Questionnaire – All persons prior to admittance to premises required to answer/sign a simple (yes/no) 4-question questionnaire. Your HR should have those questions. If any answer is “yes”, they should be denied admittance. If its an employee, they should be told to go home and contact HR.
• Temperature Screenings – While this can be a good screening measure for retail establishments that admit public entrance (i.e., restaurants), I do not generally recommend this for employees. There are far too many issues involved, not the least of which is HIPAA. If you do temp-screen employees, do not record temperatures. It’s only a “pass/fail” screen like the questionnaire.

C. Employee Illness; Company Response:

• Illness – Company policy must require employees to stay home if: (i) the employee is feeling ill, (ii) the employee exhibits COVID symptoms, (iii) the employee tested COVID positive, or (iv) anyone in the employee’s immediate household tests positive. Employees must immediately report all positive COVID results to the company.
• Reporting – Require employees at work to immediately report any illness, including common COVID symptoms. Document and send home with instructions not to return until feeling well.
• Testing – Arrange/pay for 3 rd party testing for employees reporting illness. If negative, allow back to work once symptoms pass.
• If Positive Result –

1.  COVID positive employee must stay home for the later of 10 days or symptoms pass.
2. Contract Tracing – The company must identify all employees that worked with the COVID positive employee. (Must give identified those employees notice of exposure without identifying the COVID positive employee – I know, impossible but do your best).
3. Exposed employees, those that spent more than 15 minutes less than 6- feet apart from the COVID positive employee must be sent home for 14 days (a negative COVID test will not get them back any faster).
4. Post all employee notices as may be required by OSHA and/or health department.
5. A temporary shut down for deep cleaning may be necessary in instances of a COVID outbreak at the company.
6. Document EVERYTHING!

D. Reporting Requirements:

There are certain reporting requirements in the event that an employee tests COVID positive.

• Worker’s Comp Carrier – It is a presumption under law in California (through the rest of this year) that any employee that tests positive for COVID, contracted it at work. It is therefore, covered by the company worker’s comp insurance. A company must report all COVID positive employees names to its carrier to open a claim within 48-hours of knowledge. (Don’t worry – at least for now, it will not affect a company’s “x-mod” (premium rating tool)).
• County Health Department – Report all employee COVID related hospitalizations and deaths to the county health department. These forms include a spreadsheet that will require detailed work from HR to complete.
• Cal OSHA – Report all employee COVID related deaths to Cal OSHA. Again, this will require detailed work from HR.

Will the above CPP ensure that your company and employees will be protected from COVID … OF COURSE NOT. However, a well-thought-out written CPP, strictly followed, will go a long way to insulate your company from potentially steep regulatory fines and shut-down orders, as well as private class action litigation claims. Just as important, it will let your employees know that you respect and care about their health and wellbeing. Employees that believe their companies are doing the best they can to protect them, do not file health department and OSHA complaints.

Your HR specialists will be able to help you develop, document, and implement a good CPP tailored for your needs.
Stay safe and healthy out there.