By: Thomas B. Song Carothers DiSante & Freudenberger LLP © 2020
Yesterday, Cal/OSHA greatly expanded its IIPP guidance pertaining to the hazard of COVID-19 in the workplace. Employers who have not reviewed and updated their IIPPs to address COVID-19 should do so now.
Prior to yesterday, Cal/OSHA’s only guidance concerning IIPPs in relation to COVID-19 consisted of a general statement/reminder that employers are required to have an IIPP to protect employees from workplace hazards and that employers should determine if COVID-19 is a hazard in their workplace. If so, employers must implement measures to prevent or reduce infection hazards and provide training on those measures.
Yesterday, Cal/OSHA updated its guidance on COVID-19 and IIPPs. That guidance now states that, “For most California workplaces, adopting changes to their IIPP is mandatory since COVID-19 is widespread in the community.” (Emphasis added.)
Cal/OSHA replaced their previous general guidance (consisting of two bullet points) with an extensive list of particular “infection prevention measures” and training topics. Cal/OSHA specifically states to “include [those] infection prevention measures in a written IIPP when applicable to the workplace.”
However, since almost every listed infection prevention measure applies to most workplaces, does that mean that employers are now required physically to write down every measure in their IIPPs? The most likely answer is “No.” The required minimum elements of a written IIPP are already governed under Title 8, CCR 3203(a). Therefore, without formal or emergency rule making (and appropriate notice and comment periods for the public), Cal/OSHA cannot, sua sponte add additional written requirements to the IIPP standard.
However, just because OSHA may not be able to cite you directly for failing to include all their applicable precautions in your written IIPP, that does not mean they cannot find other ways to find your IIPP ineffective. In other words, it is assumed that should an employer’s IIPP be under review – for a COVID-related issue or otherwise – Cal/OSHA will use their listed infection prevention measures as a benchmark to gauge the effectiveness of an IIPP as it relates to COVID-19.
Therefore, while employers may not legally be required to list every single applicable Ca/OSHA precaution directly in their written IIPPs, it makes good sense to do so, or at a minimum, to be sure that you are actually implementing these precautions in the workplace.