The California Occupational Safety and Health Standards Board (“Cal-OSHA”) has proposed a COVID-19 prevention emergency action that highlights the importance of an expanded definition of “compliance” in the cannabis industry. In short, it requires a written COVID-19 Prevention Program, and applies to most California employers with limited exceptions. It also serves as a useful guide to businesses in other jurisdictions attempting to write and implement a COVID-19 prevention plan.
The proposed COVID-19 Prevention Plan is an addition to a business’s pre-existing Injury and Illness Prevention Program (“IIPP”). This article will discuss the elements of the written COVID-19 Prevention Program requirement in Cal-OSHA’s proposal, as well as practical takeaways for cannabis businesses to expand their IIPP.
System for Communicating
An anonymous reporting mechanism that allows employees to report compliance concerns or violations without the fear of retaliation by an employer is a key cannabis compliance program feature. Cal-OSHA’s proposed action similarly requires a reporting system that allows employees to anonymously report COVID-19 related information (symptoms, exposures, etc.) to their employer, as well an outlet for employers to communicate “information about COVID-19 hazards” to employees.
Compliance reporting systems generally need to be catered to the size of a cannabis company, as well as to the resources a business has at its disposal. Reporting systems can range from simple email reporting systems to interactive internal web pages. In the COVID-19 context, employers should ensure that the system they choose sufficiently protect employee confidential information. Also be sure to advise employees that may be required by law.
Identification and Evaluation of COVID-19 Hazards
Cannabis compliance programs should be catered to a business’s specific set of circumstances when it comes to jurisdiction, license type, size, location, etc., and your COVID-19 Prevention Program should be no different. A one-size-fits-all COVID-19 policy that applies to the entire business is unlikely to hack it. A requirement contained in Cal-OSHA’s proposed action doubles as a good practice in developing and/or implementing a compliance/COVID-19 program that is not cookie cutter:
Get feedback and input from your employees.
Employees often have unique compliance insights to offer by virtue of being involved in day-to-day operations. Similarly, employees will likely offer unique insight into identifying COVID-19 hazards in the workplace that arise during the course of day-to-day operations. §3205(c)(2) otherwise mandates the following policies and procedures be put in place:
- COVID Case Response
- Contact Tracing
- Maximizing Outdoor Air Flow
Investigating and Responding to COVID-19 Cases in the Workplace
Cannabis employers should not “figure it out as they go” when responding to a report that an employee has tested positive for COVID-19. Procedures to investigate and respond to workplace COVID-19 cases must be put in place. Once again, employers must ensure that any procedure established does not compromise confidential employee information.
This element echoes the previous section and requires contract tracing procedures be implemented that allows an employer to track exposure and give necessary notice to employees and other third parties. In addition, employers must offer free testing to all potentially exposed employees during work hours.
Correction of COVID-19 Hazards
While it may sound obvious that COVID-19 hazards must be corrected before employees return to work, this section highlights another important point:
This program, like any other compliance program, must be monitored, reassessed, and modified as necessary.
It is impossible to anticipate every single COVID-19 hazard a business may face. In the same way standard operating procedures must be reassessed at regular intervals, a COVID-19 program should be revisited to ensure hazards have not been overlooked.
Training and Instruction
Nothing new here: writing a “paper program” that is never implemented may do more harm than good to a cannabis business. Make sure that employees understand the basics of how the virus is transmitted, the policies and procedures discussed throughout the proposed action, as well as their rights under federal, state, and local law.
Physical Distancing & Face Coverings
Cal-OSHA’s proposed action includes six-foot social distancing and face covering requirements that we should all be familiar with at this point. Employers are not only required to provide face covering, but they must also ensure that they are being worn, and being worn properly. However, employers should also evaluate whether wearing a mask in certain situations (i.e., operation of heavy machinery) may create or contribute to a safety hazard and develop procedures accordingly.
Other Engineering Controls, Administrative Controls, and Personal Protective Equipment
Systematic cleaning and disinfecting procedures that occur at regular intervals must be implemented. These procedures should include the regular cleaning of surfaces and equipment, as well as an evaluation of what types of personal protective equipment may be necessary to keep employee’s safe.
Reporting, Recordkeeping, and Access
Cannabis regulations are infamous for recordkeeping requirements, so this element should not come as a surprise. Recordkeeping in this context is particularly important, as records may play a key role in contract tracing. Once again, be sure that all employee information is kept confidential. Similar to other Cal-OSHA health and safety plan requirements, employees must have access to the COVID-19 Prevention Plan at the workplace.
§3205(c)(9)(B) requires an employer to report any “COVID-19-related serious illnesses or death…of an employee occurring in a place of employment or in connection with any employment.” If an employer finds themselves in this unfortunate situation, they should immediately contact an attorney to discuss their situation.
Exclusion of COVID-19 Cases
This element outlines the obligation of an employer to “exclude” employees from the workplace until the return to work criteria in the next section are met. §3205(c)(10)(B) states:
“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.” [Emphasis Added]
Employers should consult with an attorney if they intend to alter an excluded employee’s job status any reason. §3205(c)(10)(C) outlines employer limitations in altering an excluded employee’s earnings, seniority, rights, and benefits.
Return to Work Criteria
This element lays out the criteria for employees to return to work. They are as follows:
(A) COVID-19 cases with COVID-19 symptoms shall not return to work until:
1. At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
2. COVID-19 symptoms have improved; and
3. At least 10 days have passed since COVID-19 symptoms first appeared.
(B) COVID-19 cases who tested positive but never developed COVID-19 symptoms shall not return to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.
(C) A negative COVID-19 test shall not be required for an employee to return to work.
(D) If an order to isolate or quarantine an employee is issued by a local or state health official, the employee shall not return to work until the period of isolation or quarantine is completed or the order is lifted. If no period was specified, then the period shall be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.
(E) If there are no violations of local or state health officer orders for isolation or quarantine, the Division may, upon request, allow employees to return to work on the basis that the removal of an employee would create undue risk to a community’s health and safety. In such cases, the employer shall develop, implement, and maintain effective control measures to prevent transmission in the workplace including providing isolation for the employee at the workplace and, if isolation is not possible, the use of respiratory protection in the workplace.
The requirements contained herein set the COVID-19 prevention floor, not the ceiling. Cannabis businesses may need to consider more restrictive COVID-19 policies and procedures. Like any other compliance program, a program must cater to a cannabis business’s specific set of circumstances and it ought to be monitored, reassessed, and modified as necessary. As such, any California cannabis business should read the proposed action in its entirety as there may be relevant requirements that have not been discussed throughout this article.
The importance of COVID-19 program extends far beyond a business’s bottom line and protects employees, as well as society at large. The goal of this article was to provide the framework to develop a COVID-19 Prevention Program unique to your business to help keep everyone safe. Stay safe, everyone.
© RYAN T. KOCOT, ESQ. 2020
DISCLAIMER: THIS INFORMATION IS STRICTLY EDUCATIONAL AND DOES NOT CONSTITUTE LEGAL ADVICE.
 TITLE 8, DIVISION 1, CHAPTER 4, §3205(c)(1)
 TITLE 8, DIVISION 1, CHAPTER 4, §3205(c)(3)(C); §3205(c)(3)(D)
 TITLE 8, DIVISION 1, CHAPTER 4, §3205(c)(2)(A)
 TITLE 8, DIVISION 1, CHAPTER 4, §3205(c)(3)
 TITLE 8, DIVISION 1, CHAPTER 4, §3205(c)(3)
 TITLE 8, DIVISION 1, CHAPTER 4, §3205(c)(3)(B)4
 TITLE 8, DIVISION 1, CHAPTER 4, §3205(c)(4)
 TITLE 8, DIVISION 1, CHAPTER 4, §3205(c)(5)
 TITLE 8, DIVISION 1, CHAPTER 4, §3205(c)(6); §3205(c)(7)
 TITLE 8, DIVISION 1, CHAPTER 4, §3205(c)(9)
 TITLE 8, DIVISION 1, CHAPTER 4, §3205(c)(10)
 TITLE 8, DIVISION 1, CHAPTER 4, §3205(c)(11)