Since the outset of the COVID-19 pandemic, California employers received guidance from a variety of State and federal agencies on the subject of whether, how and when employers can require employees to submit to viral testing for COVID-19. Adding an additional layer of complexity, on November 30, 2020, Cal/OSHA published emergency regulations that create a deluge of new obligations and prohibitions on the part of California employers. These emergency regulations include a purported prohibition against employers requiring that employees furnish a negative viral test before returning to work if they were excluded from the workplace for COVID-19 related reasons.

While this regulation arguably contradicts established legal standards and guidance from other agencies on the subject of employee testing, California employers are in the unenviable position of complying with the new Cal/OSHA standards or facing costly penalties in the form of citations for non-compliance and potential interruption of operations. Given the stakes for noncompliance, we are posting this blog article to provide a summary of the current landscape as it applies to viral testing of employees. Using guidance and regulations from a variety of sources, we have divided the answer to when California employers can require viral COVID-19 testing into three categories: (1) situations where employers must provide testing; (2) situations where employers have the option to require testing; and (3) situations where employers cannot require testing.

When MUST a California Employer Offer Viral Testing

In addition to prohibiting viral testing in certain situations, the Cal/OSHA emergency regulations also require that California employers offer COVID-19 viral testing. Under the new regulations;

• California employers must “[o]ffer COVID-19 testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace…”
• In the circumstance of a California employer identified by a local health department as the location of a COVID-19 “outbreak” or when there are three or more COVID-19 cases in an exposed workplace within a 14-day period, “[t]he employer shall provide COVID-19 testing to all employees at the exposed workplace except for employees who were not present during the period of an outbreak identified by a local health department or the relevant 14-day period(s) … as applicable. COVID-19 testing shall be provided at no cost to employees during employees’ working hours.”
• And finally, in the circumstance of a California employee with 20 or more COVID-19 cases in an exposed workplace within a 30-day period, “[e]mployers shall provide twice a week COVID-19 testing, or more frequently if recommended by the local health department, to all employees present at the exposed workplace during the relevant 30-day period(s) and who remain at the workplace. COVID-19 testing shall be provided at no cost to employees during employees’ working hours.”

California employers should note that between now and December 31, 2020, the emergency regulations define “exposed workplace” as “any work location, working area, or common area at work used or accessed by a COVID-19 case during the high-risk period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. The exposed workplace does not include buildings or facilities not entered by a COVID-19 case.” Beginning January 1, 2021, the “exposed workplace” definition will also incorporate the definition of “worksite” as defined by Labor Code section 6409.6(d)(5). That statute in turn defines “worksite” as “the building, store, facility, agricultural field, or other location where a worker worked during the infectious period. It does not apply to buildings, floors, or other locations of the employer that a qualified individual did not enter.” You can view the full version of the Cal/OSHA emergency regulations here.

The Cal/OSHA Frequently Asked Questions regarding the emergency regulations also provides following guidance with respect to identifying the “exposed workplace.”

Q: What is an “exposed workplace” and how should an employer determine which work areas are included?
A: An exposed workplace is a work location, working area, or common area used or accessed by a COVID-19 case during the high-risk period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. If, within 14 days, three COVID-19 cases share the same “exposed workplace,” then the Multiple COVID-19 Infections and COVID-19 Outbreaks standard (section 3205.1) applies and additional testing will be required. When determining which areas constitute a single “exposed workplace” for purposes of enforcing testing requirements, Cal/OSHA does not expect employers to treat areas where masked workers momentarily pass through the same space without interacting or congregating as an “exposed workplace,” so they may focus on locations where transmission is more likely.

Q: Does the “exposed workplace” mean the entire workplace? Does this change after January 1, 2021 when AB 685 goes into effect?
A: No, the “exposed workplace” includes only the areas of the building where the COVID-19 cases were present during the “high-risk exposure period.” This will not change after January 1, 2021.

Q: Is the testing requirement for outbreaks triggered by three or more cases in an entire building?
A: No, the testing requirement is triggered by three or more cases in a 14-day period present in the same “exposed workplace” during the “high-risk exposure period.”  For other areas of the workplace, follow the requirements for employees who are exposed to COVID-19 cases.

You can view the full version of the Cal/OSHA FAQ here. Based on the foregoing, which employees must be offered viral testing under the emergency regulations will vary from employer to employer depending on the physical layout of the facility(ies) and where the exposed employee traveled or worked.

The regulations can also be interpreted as requiring California employers to provide testing twice per week for unmasked employees whose specific tasks cannot be feasibly performed with a face covering and who cannot be at least six feet away from all other employees while actually performing such duties. We recommend that California employers for which this situation might apply to offer testing twice per week.

When MAY a California Employer Require Viral Testing

There remains a variety of situations where California employers may choose to require employees to submit to viral testing. EEOC guidance updated September 8, 2020 specifies that employers can require new hires to submit to viral testing as a condition of entering the workplace. We recommend that California employers who want to pursue a pre-employment COVID-19 testing strategy be done post-offer based on the same principles as pre-employment drug and/or alcohol testing. Likewise, under EEOC guidelines employers may require all employees to submit to viral testing “periodically” to “determine if their presence in the workplace poses a direct threat to others.” However, it is currently unclear whether this guidance would be permissible under California law concerning random drug and alcohol testing principles, as well as California standards as they apply to principles of employee privacy.

The EEOC guidance also clarifies that an employer may require specific employees to submit to viral testing as a condition of entering the workplace, although the Americans with Disabilities Act “requires the employer to have a reasonable belief based on objective evidence that this person might have the disease.” You can view the EEOC guidance referred to above here.

Also note that the United States Department of Labor’s July 20, 2020 guidance suggests that where an employer is concerned about a self-quarantined employee returning to work too soon and potentially exposing other staff to COVID-19, “a company may require any employee who knows he has interacted with a COVID-infected person to telework or take leave until he has personally tested negative for COVID-19 infection, regardless of whether he has taken any kind of leave.” However, this guidance directly conflicts with the more recent Cal/OSHA emergency regulations that expressly prohibit California employers from requiring employees to provide a negative viral test before returning to the workplace. California employers should therefore conform to the Cal/OSHA standard in the face of this discrepancy.

Based on the foregoing guidance, primarily based on federal agency interpretation of the Americans with Disabilities Act, there is solid footing for California employers to exercise their discretion to require employees to submit to viral testing as a condition of entering the workplace across a wide variety of circumstances. That said, flexibility is key, as agency guidance does not carry the force of law and we do not have the benefit of a large body of judicial precedent upon which to rely for additional interpretation.

When are California Employers PROHIBITED From Requiring Viral Testing

As mentioned above, the new Cal/OSHA regulations state as follows under the heading of “Return to work criteria:”

A negative COVID-19 test shall not be required for an employee to return to work.

Thus, employers who have adopted a policy or practice of requiring a negative viral test or successive negative viral tests, now face the prospect of an OSHA citation from OSHA Compliance Officers, and/or claims of retaliation by employees, unless they change their policy or practice.

Additionally, California employers cannot require employees to submit to viral testing as a condition of allowing employees to take protected leave, whether covered under the Families First Coronavirus Relief Act or the California COVID-19 Supplemental Paid Sick Leave Act (codified as Labor Code section 248 and 248.1).

Summary

This blog article should assist California employers in understanding the current viral testing landscape. Of course, employers should also be aware of the prohibition against requiring employees to submit to antibody testing, as opposed to viral testing, as a condition of employment or return to work. SHLC published a blog on this and other aspects of COVID-19 antibody testing earlier this year that you can access here.

It bears repeating that California employers must be prepared to adapt quickly to changing guidance, statutes, regulations and judicial opinions during the pandemic. This is especially true because of the high likelihood of additional federal legislation in this area as Congress looks to extend various coronavirus relief laws, which may result in long-term extension of current requirements and/or the imposition of new standards and requirements.

Please note that while this article is limited in scope to those circumstances where California employers may or may not require viral testing, there are other important legal considerations concerning the intersection between viral testing and other employment laws including but not limited to employee notices, employee privacy and confidentiality, wage and hour compliance, and discrimination.

The law in this area is evolving and employers need to stay apprised of new developments. On December 8, 2020, SHLC attorneys Brett Sutton and Jared Hague were joined by OSHA Certified Safety Expert James Boretti of Boretti, Inc. for a 90-minute webinar on the topic of new COVID-19 legislation, including the Cal/OSHA emergency regulations, AB 685 and SB 1159. That webinar is available for download at Calnevalaw.com. On January 21, 2021, Brett Sutton and Jared Hague will also be participating in a New Year Labor Law Update for California employers as part of the Tahoe Chamber’s Level UP Workshop Series, during which they will also discuss the legal developments in this area. Those interested are encouraged to visit suttonhague.com/events-2/ to register for the event. Employers with questions about compliance with the full spectrum of COVID-19 related requirements are encouraged to consult with the attorneys of Sutton Hague Law Corporation.