COVID-19 Resources for California Employers

LAST UPDATED:  October 31, 2022

CDF Labor Law LLP assembled a task force of attorneys across California to address California employment-related issues that employers are facing in the wake of the COVID-19 pandemic.

This content will be regularly updated with information [questions that appear in red have been recently updated] that California employers need to address workplace issues and questions that arise during the COVID-19 situation.  Our goal is to provide you with the information to help you make effective business decisions and to assist you with your need to consult with counsel.  This Resource Page provides an overview of a specific developing situation.  It is not intended to be, and should not be construed as, legal advice, nor does the receipt of it constitute an attorney-client relationship.


TABLE OF CONTENTS


RETURN TO WORK

While the COVID-19 health crisis significantly impacted California's employers, employees, and families, on June 15, 2021, Governor Newsom terminated the Stay Home Order and the Blueprint for a Safer Economy. 

On July 26, 2021, Governor Newsom ordered California state workers, healthcare workers, and other employees who work in “high-risk congregate settings” to get vaccinated or submit weekly COVID-19 testing and wear masks.  Governor Newsom’s order covers employees of hospitals, nursing homes, dental and physician offices, and other healthcare settings.  Healthcare facilities must comply with these requirements by August 23, 2021.  Similarly, employees of state agencies will be required to comply by August 2, 2021.  California is encouraging local governments and private employers to adopt similar mandates.

On August 5, the California Department of Public Health ordered all healthcare workers to get fully vaccinated against COVID-19 by September 30, 2021, except in some cases of accommodations for medical reasons or sincerely held religious beliefs, and most recently updated this order on February 22, 2022.

On September 28, 2021, CDPH ordered that all workers in adult, senior care, and in-home direct care settings get fully-vaccinated against COVID-19 by November 30, 2021, with exceptions for persons providing services to a single household, and except in some cases of accommodations for medical reasons or sincerely held religious beliefs. Workers include employees and independent contractors.

The California Department of Public Health (“CDPH”), as of September 20, 2022:

  • Shifts from a strong recommendation for the general population, in all indoor settings at all times to use of CDC Community Levels to help inform masking recommendations, which is consistent with August 11th CDC updated recommendations.
  • Aligns correctional facilities with current CDC recommendations (CDC updated guidance on May 3rd) which notes that correctional facilities may make masks optional when CDC community levels are low.
  • Aligns recommendations for homeless shelters, emergency shelters and cooling centers to the above recommendation for correctional facilities, i.e., also shifts from requirements to masking recommendations in these settings when CDC community levels are low.
  • Updated guidance is effective September 23, 2022.

On June 17, 2022, the Governor ordered termination of five provisions related to Cal/OSHA’s COVID-19 Emergency Temporary Standards, following updated workplace safety rules that took effect last month and announced the expiration of fifteen additional provisions on June 30, leaving only 5 percent of the COVID-19 related executive order provisions in place.

While employers need to continue to consider the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards, the CDPH updated its isolation and quarantine guidance to align closely to the recently updated Centers for Disease Control and Prevention’s (CDC) guidance.  CDPH recognizes the new five-day protocols, however, individuals who test COVID+, regardless of vaccination status, must stay home for at least five days with isolation ending after day five, if symptoms are not present or resolving and if an antigen test collected on day five or later is negative.  Otherwise, if the person does not test and symptoms resolve, isolation may end after Day 10.  And, COVID+ persons should wear a well-fitting mask around other people for 10 days.

Unvaccinated and vaccinated people who are eligible for a booster but have not received a booster who were exposed to COVID-19, even without COVID-19 symptoms, should stay home for at least five days. The quarantine will end after a negative antigen test on day five and no COVID-19 symptoms. Such persons should wear a well-fitting mask around other people for 10 days.

Vaccinated individuals who received a booster, or are not eligible for a booster, and were exposed to COVID-19 do not have to stay home but should test on day five, as well.  And, wear a well-fitting mask around other people for 10 days.

Vaccine

Q.  Is it true that President Biden ordered all employers to mandate that employees get vaccinated?

A.  No. President Biden called for Fed/OSHA to issue regulations to mandate vaccinations in the workplace.  On January 13, 2022, the Supreme Court reinstated the stay of enforcement of the ETS, thus, pending further orders from the Sixth Circuit Court of Appeals, employers are not required to follow the Fed/OSHA vaccine mandate. In a separate case, the Court upheld Health and Human Services’ rule mandating vaccination for healthcare workers at facilities participating in Medicare and/or Medicaid.  See below section covering Vaccination and Testing Emergency Temporary Standard (VAX ETS) for more information and guidance as to the VAX ETS as of its publication date.

Q.  If all of my employees are in California, are they exempt from Fed/OSHA because of Cal/OSHA?

A.  Not really.  Because California has its own State-Plan approved occupational safety and health program (Cal/OSHA), covered California employers may enjoy a longer pause before becoming subject to the Fed/OSHA regulations.  However, because Cal/OSHA is an approved state program, Cal/OSHA has up to 30 days to either adopt any VAX ETS or amend its own rules (i.e., the Cal/OSHA ETS) to be “at least as effective as” the Federal version.  Cal/OSHA only has 15 days to declare what action it will take, so while it is not clear when Cal/OSHA will make its decision or what deadlines will ultimately apply to California employers, if the VAX ETS becomes effective, California employers should find out shortly thereafter.

Q.  The CDC guidance seems to suggest that vaccinated employees need not wear masks in the workplace, does this apply in California? 

A.  No.  While, Cal/OSHA's Emergency Regulations are more in line with CDC guidance, employers should follow the most recent CDPH or local health department guidance. 

Q.  May an employer require employees to be vaccinated against COVID-19?

A.  Yes, as long as the employer is able to make certain accommodations. The EEOC's extensive guidance related to the COVID-19 vaccine and the workplace, including guidance that in a workplace where no accommodation is possible for employees, especially due to safety-related qualifications, who will not be vaccinated, then it would be lawful to exclude such employees from the workplace.  

California’s DFEH’s recent guidance provides that an employer may require employees to receive an FDA approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

Q.  How should an employer evaluate whether or not to provide accommodation for employees who assert that they cannot or will not take the vaccine and need accommodation?

A.  Consult with counsel.  While the EEOC guidance is clear that certain employers may exclude such persons from the workplace, excluding such employees from the workplace will, in all likelihood, increase litigation exposure:  “Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.” 

Q.  If an employee claims that s/he needs a reasonable accommodation to avoid a mandatory workplace COVID-19 vaccine, what should an employer do?

A.  Consult with counsel about participating in the interactive process to determine whether a reasonable accommodation is available.

Q.  What are examples of reasonable accommodations or modifications that employers may have to provide to employees who do not get vaccinated due to disability, religious beliefs, practices, or observances?

A.  The EEOC advises that an employee who does not get vaccinated due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII) may be entitled to a reasonable accommodation that does not pose an undue hardship on the operation of the employer’s business.  For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or, accept a reassignment.

Q.  Does an employee’s concern that a vaccine is not safe to require a reasonable accommodation?

A.  Probably not.  Employers are only required to accommodate a disability or a sincerely-held religious belief for not being vaccinated with an FDA-approved vaccine.  If an employer is confronted with this issue, it is best to consult with counsel.

Q.  If an employer grants some employees an accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, does it have to grant the requests of all employees who seek accommodation because of sincerely held religious beliefs?

A.  No. The EEOC guidance states that the determination of whether a particular proposed accommodation imposes an undue hardship on the conduct of the employer’s business depends on its specific factual context.  When an employer is assessing whether exempting an employee from getting a vaccination would impair workplace safety, it may consider, for example, the type of workplace, the nature of the employee’s duties, the number of employees who are fully vaccinated, how many employees and nonemployees physically enter the workplace, and the number of employees who will in fact need a particular accommodation.  A mere assumption that many more employees might seek a religious accommodation to the vaccination requirement in the future is not evidence of undue hardship, but the employer may take into account the cumulative cost or burden of granting accommodations to other employees.

Q.  If an employer grants accommodation to an employee, can the employer later reconsider it?

A.  Probably. The obligation to provide accommodations absent undue hardship is a continuing obligation that takes into account changing circumstances.  Employees’ needs for accommodation may evolve or change over time requiring different accommodations. Employer should participate in an interactive process with any employee before unilaterally changing or revoking an accommodation.

Q.  How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for an accommodation?

A.  An employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment.  Under Federal law, if an employer demonstrates that it is unable to reasonably accommodate an employee without an “undue hardship” on its operations, then Title VII does not require the employer to provide the accommodation.  Costs to be considered include not only direct monetary costs but also the burden on the conduct of the employer’s business – including, the risk of the spread of COVID-19 to other employees or to the public.

Under Federal law, an employer needs to assess undue hardship by considering the particular facts of each situation and demonstrate how much cost or disruption the employee’s proposed accommodation would involve.  An employer cannot rely on speculative hardships when faced with accommodation requests but, rather, should rely on objective information.  Relevant considerations may include whether the employee requesting an accommodation works outdoors or indoors, works in a solitary or group work setting, or has close contact with other employees or members of the public (especially medically vulnerable individuals).

California employers are reminded that while California courts are guided by Federal law, an “undue hardship” under FEHA is different from the definition under Title VII.  A California FEHA undue hardship mean “significant difficulty or expense”, which is generally viewed as a higher standard than Title VII.

Q.  May an employer require employees to submit proof of COVID-19 vaccination?

A.  Yes, according to DFEH guidance.  Proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination. Because COVID-19 vaccine documentation could include other medical information, employers may wish to instruct their employees or applicants to omit any medical information from the documentation. Any record of employee or applicant vaccination must be maintained as a confidential medical record.  Further, an employer should ensure that they are in compliance with CCPA privacy notice requirements and any updates that may be required by January 1, 2023 pursuant to the CPRA.  Indeed, under Cal/OSHA’s Emergency Regulations, employers must make an effort to learn their employees vaccination status.

Issues Related to Return to Work

Q.  What does the CDC recommend for the workplace?

A.  The CDC's updated guidance, recommends masking only in high risk of transmission areas of the United States.  Anyone can easily check the CDC’s assessment of the risk of COVID-19 in their county.  However, California employers should note that the new CDC guidance has an exception that largely swallows the guidance because masks and distancing should be maintained “where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”  For the unvaccinated and in settings requiring masks, such as airplanes and buses, the CDC recommends that the use of respirators, surgical masks, disposable face masks that fit snugly, made with tightly woven breathable fabric, with two or three layers or inner filter pockets.  Clear masks may also be important when interacting with the hearing impaired, students learning a new language, and persons with diabetes. See:  https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/types-of-masks.html.  The general public should not use surgical masks or N-95 respirators so that these critical supplies are available to health care workers and first responders.  Likewise, face shields are not a substitute for masks.

Q.  What are the face-covering requirements in California?

A.  As of September 20, 2022, CDPH strongly suggests masking in indoor settings for all persons, regardless of vaccine status and removed the masking requirement for public transportation.  The CDPH:

  • Shifts from a strong recommendation for the general population, in all indoor settings at all times to use of CDC Community Levels to help inform masking recommendations, which is consistent with August 11th CDC updated recommendations.
  • Aligns correctional facilities with current CDC recommendations (CDC updated guidance on May 3rd) which notes that correctional facilities may make masks optional when CDC community levels are low.
  • Aligns recommendations for homeless shelters, emergency shelters and cooling centers to the above recommendation for correctional facilities, i.e., also shifts from requirements to masking recommendations in these settings when CDC community levels are low.
  • Updated guidance is effective September 23, 2022.

The following exceptions remain in effect:

  • Children under two years of age;
  • Persons who require a medical accommodation; and
  • Persons for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.

Q.  Can I require employees to take a COVID-19 test as a condition of entering the workplace?

A.  Yes.  On April 23, 2020, the EEOC updated its COVID-19 employer guidance to address this question.  The EEOC stated that required testing is permissible, reasoning that such testing is job-related and consistent with business necessity and that an employee with Covid-19 would pose a direct threat to the workplace.  For these reasons, the EEOC concluded that employers may require such testing before allowing employees to enter the workplace.  The EEOC cautions employers to first “ensure” that required testing is reliable and accurate.  To that end, the EEOC suggests that employers consult FDA, CDC, and other public health agency guidance on this subject. 

The DFEH agrees that under the FEHA, an employer may mandate a medical examination when it is “job-related and consistent with business necessity.” Applying this standard in light of present guidance from the CDC, and consistent with guidance from the Equal Employment Opportunity Commission, employers may require employees to submit to viral testing but not antibody testing before permitting employees to enter the workplace.  

Employers mandating Covid-19 testing are cautioned to maintain the confidentiality of test results, to compensate employees for all time and expense associated with participating in required testing, and to make sure that their CCPA notices disclose to employees that health information will be collected as part of the company’s efforts to provide a safe workplace and prevent individuals with Covid-19 from being in the workplace while potentially contagious.

Q.  Did furloughed employees accrue vacation and paid sick leave while on furlough?

A.  In most cases, no.  Vacation, paid time off (PTO), and paid sick leave are employee benefits that employees accrue and earn as time is worked.  As such, employees who are not working are not accruing or earning those benefits – unless applicable employee policies, collective bargain agreements, or employment agreements require otherwise.

That said, employers should be aware that the California Healthy Workplaces, Healthy Families Act of 2014 requires employers to reinstate all accrued, unused paid sick leave to employees who are re-hired within 12 months of being terminated.  As such, to the extent that employees had any unused accrued paid sick leave banked prior to being furloughed, which remained unused during furlough, that accrued unused paid sick leave must be returned to the employees’ bank and employees must be allowed to use such paid sick leave upon their return from furlough.

COVID-19 Considerations For Injury Illness Prevention Program

Q.  Does an employer need to update their IIPP to take COVID-19 into consideration?  

A.  Yes.  

Q.  Other than updating our IIPP, is there anything else an employer should do on the IIPP front?

A.  Yes.  Train your workforce as to the new IIPP, encourage vaccination against COVID-19, maintain records of the training and implementing the IIPP will insulate employers from Cal/OSHA citations.

Q.  What should be included in an IIPP?

A.  Cal/OSHA currently recommends that training, at a minimum, be provided on the following topics:

  • Cough and sneeze etiquette
  • Hand hygiene
  • Avoiding close contact with sick persons
  • Avoiding touching eyes, nose, and mouth with unwashed hands
  • Avoiding sharing personal items with co-workers (i.e. dishes, cups, utensils, towels)
  • Providing tissues, no-touch disposal trash cans and hand sanitizer for use by employees

https://www.dir.ca.gov/dosh/coronavirus/General-Industry.html

Cal/OSHA issued guidance to the agriculture and grocery store communities, recommending that physical distancing procedures be implemented to guard against the spread of COVID-19.  Therefore, while Cal/OSHA does not currently mandate physical distancing, given the CDC’s recommendations about physical distancing and Cal/OSHA’s directive to the agriculture and grocery sectors, a prudent employer will provide training as to physical distancing, too.  Click here for Cal/OSHA Grocery Store guidance and here for Cal/OSHA's Agriculture guidance.

For information on the most recent Cal/OSHA guidance, click here.

Q.  What does the CDC recommend for the workplace?

A.  The CDC's updated guidance recommends masking only in high risk of transmission areas of the United States.  California employers should note that the new CDC guidance has an exception that largely swallows the guidance because masks and distancing should be maintained “where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”  Recently, CDPH and Cal/OSHA updated their guidance to align with the CDC as to masking.  Check with local authorities for updated  guidance on mask mandates and physical distancing in the workplace.

  • Avoid shared workspaces (desks, offices, and cubicles) and work items (phones, computers, other work tools, and equipment) when possible.
    • If they must be shared, clean and disinfect shared workspaces and work items before and after use.
  • Establish procedures to routinely clean and disinfect commonly touched objects and surfaces such as elevator buttons, handrails, copy machines, faucets, and doorknobs. Surfaces should be cleaned with soap and water prior to disinfection. These procedures should include:
    • Using disinfectants that are EPA-approved for use against the virus that causes COVID-19.
    • Providing EPA-registered disposable wipes for employees to wipe down commonly used surfaces before use.
    • Following the manufacturer’s instructions for all cleaning and disinfection products (e.g., safety requirements, PPE, concentration, contact time).
    • Ensuring there are adequate supplies to support cleaning and disinfection practices.
  • If an employee is confirmed to have COVID-19 infection:
    • Inform employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the Americans with Disabilities Act (ADA). Please see further information on protecting the privacy of persons with COVID-19 from the California Department of Fair Employment and Housing.
    • Temporarily close the general area where the infected employee worked, and, if possible, open windows to the outside, until cleaning is completed.
    • Conduct deep cleaning of the entire general area where the infected employee worked and may have been, including breakrooms, restrooms and travel areas, with a cleaning agent approved for use by the EPA against coronavirus. It should ideally be performed by a professional cleaning service.
      • Any person cleaning the area should be equipped with the proper PPE for COVID-19 disinfection (disposable gown, gloves, eye protection, mask, or respirator if required) in addition to PPE required for cleaning products. See below for further information on PPE.
  • Advise employees to avoid non-essential travel if possible and check CDC’s Traveler’s Health Notices prior to travel.

For employers in industries such as retail sales or service industries, to protect those employees with frequent contact with the public, arrange work and implement measures that account for the possibility that the public is a possible contamination source, including:

  • Conduct even more frequent cleaning and disinfection of surfaces touched by the public such as credit card machines, touch screens, shopping carts and doors.
  • Protect cashiers and other workers who have frequent interaction with the public with engineering controls such as Plexiglas screens or other physical barriers, or spatial barriers of at least six feet, if feasible.
  • If exposures to the general public cannot be eliminated with engineering controls, require or encourage customers to wear face coverings, which are mandatory in some jurisdictions.
  • Schedule work to allow frequent hand washing by employees handling items (cash, credit cards, merchandise, etc.) touched by members of the public.  Notably, Executive Order N-51-20 requires that employees working in food facilities (as defined by the California Retail Food Code) must be permitted to wash their hands every 30 minutes and additionally, as needed.
  • Enforce physical distancing by limiting the number of customers in retail space.
  • Ask customers to take precautions such as only touching items they intend to purchase, and provide hand sanitizer stations.
  • Provide workers handling items touched by the public with PPE (i.e., disposable gloves).

Q.  What does an employer need to do to assess the COVID-19 hazard under its IIPP?

A.  An IIPP typically includes the inspection requirements such as periodic physical inspections of the workplace.  However, these common visual, periodic inspections of the workplace surely will not be seen as passing muster when “identifying and evaluating” the new risk of COVID-19 in the workplace, especially given the COVID-19 Emergency Regulations.  So, together with your employees or their authorized representative, proactively take steps to protect against the risk of COVID-19 in the workplace to

  • Develop and implement screening processes and responding to employees with COVID-19 symptoms
  • Remain updated on state and local guidance and orders on hazard prevention, including industry-specific guidance found on Cal/OSHA’s website or at Covid19.ca.gov;
  • Review and, if necessary, adjust existing practices for controlling COVID-19
  • Conduct a site-specific evaluation of where COVID-19 transmission could occur, including places where employees and any other persons congregate or interact with each other or members of the public
  • Create a written procedure to immediately address COVID+ cases
  • Conduct periodic inspections to ensure compliance and check for new hazards
  • Implement procedures to promptly correct any identified hazards

Q.  What does Cal/OSHA require for physical distancing and facial covering?

A.  Cal/OSHA's revised ETS eliminated physical distancing and barrier requirements regardless of vaccination status.  Cal/OSHA and CDPH now align on masking requirements. 

  • Employers may implement additional protective measures, including the use of physical distancing and barriers.
  • Employers are under an ongoing requirement to assess workplace hazards and implement controls to prevent transmission of disease.  There may be circumstances in which employers determine that physical distancing is necessary in their workplace.
  • During an outbreak (3 or more employees in an exposed group), employers are required to evaluate whether physical distancing or barriers are necessary to control the transmission of COVID-19.
  • Physical distancing and barriers must be used in a major outbreak (20 or more employees in an exposed group) for all employees, regardless of vaccination status.
  • Restrictions required by local health orders.

Q.  What facial covering requirements does Cal/OSHA require?

A.  If an employer requires face coverings or respirators, other than those used for accommodation purposes, such masks should be made of a material of at least two layers, unless a clear face covering is needed for a specific purpose.

  • Cal/OSHA directs employers to comply with CDPH or local health department orders, with respect to masking. The CDPH’s updated guidance, strongly recommends masking, as of April 20, 2022, in indoor public spaces, regardless of vaccine status.

As of September 20, 2022, the CDPH's updated guidance,

  • Shifts from a strong recommendation for the general population, in all indoor settings at all times to use of CDC Community Levels to help inform masking recommendations, which is consistent with August 11th CDC updated recommendations.
  • Aligns correctional facilities with current CDC recommendations (CDC updated guidance on May 3rd) which notes that correctional facilities may make masks optional when CDC community levels are low.
  • Aligns recommendations for homeless shelters, emergency shelters and cooling centers to the above recommendation for correctional facilities, i.e., also shifts from requirements to masking recommendations in these settings when CDC community levels are low.
  • Updated guidance is effective September 23, 2022.

Exceptions remain for:

  • Children under two years of age;
  • Persons who require a medical accommodation; and
  • Persons for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.

  • In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.  
  • Employers must provide all employees with approved respirators for voluntary use.
  • Employers may not retaliate against employees for wearing face coverings.

Q.  Are there any engineering controls that Cal/OSHA suggests or requires an employer to implement?

A.  Yes, Cal/OSHA identifies engineering controls such as plexiglass separators where physical distancing is not possible, maximizing the amount of outside air to the extent feasible, unless there is poor outside air quality (an AQI of 100 or higher for any pollutant) or some other hazard to employees such as excessive heat or cold.

Q.  Is there any personal protective equipment (PPE) that Cal/OSHA suggests or requires an employer to implement?

A.  Yes, Cal/OSHA requires employers to evaluate the need for PPE, including but not limited to gloves, eye protection and respiratory protection as required by Cal/OSHA standards and to provide eye and respiratory protection for employees exposed to procedures that aerosolize saliva or other potentially infectious materials, such as some dental procedures and to prohibit the sharing of PPE. 

Considerations Before Re-Opening

Q.  Is it necessary to bring all employees back to the physical workplace?

A.  No.  In fact, you may not be able to bring all employees back if you are creating more social distancing in the workplace or health orders mandate reduced density.  Given the ongoing and unknown nature of the virus, consider allowing employees whose jobs permit them to work remotely to continue to work remotely.  Moreover, some employees who are at high-risk from COVID-19 may be entitled to work from home as a reasonable accommodation under federal and state disability law.

Q.  What steps need to be taken to make the workplace safe for employees?

A.  Update your IIPP.  Create a COVID-19 Response Plan.  Train all employees in conjunction with your plans. Stay up-to-date on the CDC’s Safety Guidelines for Businesses and Cal/OSHA Workplace Safety Guidance.

Q.  Where can I obtain training materials on COVID-19 to implement as part of my COVID-19 response plan?

A.  The National Institute of Environmental Health Sciences has several free training documents for download. You can find the materials at https://tools.niehs.nih.gov/wetp/covid19worker/.

Q.  How do I select which employees to bring back to work?

A.  Carefully.  The selection of employees to return to the workplace creates the potential for discrimination claims.  For example, if female workers as a group are brought back to work at lower rates than male employees, that may raise potential disparate impact claims.  For that reason, it is recommended that employers conduct a disparate impact analysis similar to the type of analysis typically completed in conjunction with a reduction in force.  Note that in the COVID-19 crisis, there may be legitimate concerns about bringing employees in vulnerable populations (such as workers who are older or have certain medical conditions) back to work, and some local orders expressly require older workers to be excluded from the worksite.  However, employers should be very careful of running afoul of federal and state anti-discrimination statutes. Indeed, the EEOC’s guidance states that employers cannot unilaterally postpone start dates or withdraw job offers from individuals who fall into high-risk categories for COVID-19, but may discuss taking those steps with those individuals.

COVID-19 Response Planning

Q.  What type of policies and procedures should an employer consider to mitigate COVID-19 risks?

A.  There are many considerations that you should tailor to your business’ needs, such as:

  • Encouraging employees to get vaccinated
  • Identifying a workplace coordinator to be responsible for COVID-19 issues
  • Create flexible policies for leave, telework and employee compensation that allow sick employees to stay home and away from co-workers
  • Ensure the availability of secure hardware and technology to allow the core functions of your business to operate in remote locations
  • Plan for continuing business operations if there are disruptions to vendor relationships
  • Identify a professional cleaning service that utilizes cleaning agents approved by the EPA against coronavirus for deep cleansing
  • Create an emergency decision making function to shortcut the time to make critical decisions in an urgent environment
  • Create a chain of communications and processes for tracking and communicating changes within your organization and with critical outside business relationships to facilitate rapid response to COVID-19 issues
  • Do not allow employees to report to work if they are sick or experiencing COVID-19 symptoms
  • In advance of returning to work, ascertain whether any of your employees have experienced COVID-19 symptoms or traveled to COVID-19 hotspots within the last 14 days and determine standards for inviting them to return to work
  • Use flexible worksites and flexible work hours to improve social distancing
  • Implement and enforce daily work station and workplace cleansing policies in accordance with CDC guidelines
  • Eliminate shared tools or develop a protocol for shared tools and other items (clean/sanitize before and after each use)
  • Promote frequent and thorough hand washing, and the use of hand sanitizer
  • Encourage respiratory etiquette, including coughing into one’s elbow, and using and disposing of tissues made available in the workplace
  • Determine the need for temperature taking and evaluating other COVID-19 symptoms prior to the beginning of shifts
  • Workers should not use other employees’ work stations, phones or equipment.

Q.  What should I do about vendors, customers, and clients?

A.  You should evaluate all of your contacts and create policies to address situations where COVID-19 could impact your business, including:

  • Visitor area cleansing in accordance with CDC guidelines;
  • Availability of hand sanitizer, tissues and trash receptacles lined with disposable bags in visitor/client areas;
  • Plexiglass barriers;
  • Advance communication with vendors to understand whether their COVID-19 policies and practices measure up to yours, and action plan if they do not.

Q.  What kinds of plans should I consider relating to employees who experience COVID-19 symptoms in the workplace?

A.  Consider the following:

  • Employees exhibiting COVID-19 symptoms in the workplace should be sent home with instructions not to return until sometime after they are symptom-free.  With or without a COVID-19 diagnosis, an employer may request COVID-19 testing to protect against COVID-19 in the workplace;
  • Upon discovery of a symptomatic employee, that person’s movement should be limited, and the employee should be instructed to leave the workplace in a manner that minimizes contact with the workplace and individuals therein;
  • Areas used by the person who was sick should be vacated and closed;
  • Open outside doors and windows to increase air circulation in the area for 24 hours before cleaning or disinfecting.  If 24 hours is not feasible, then wait as long as possible;
  • While the CDC recommends techniques and materials for cleaning and disinfecting areas used by the sick person, such as offices, bathrooms, common areas, shared electronic equipment like tablets, touch screens, keyboards, remote controls, and ATM machines, it is recommended to engage a commercial, licensed, insured cleaning service to undertake that effort;
  • The CDC indicates that if it is more than 7 days since the sick person visited or used the facility, additional cleaning and disinfection is not necessary;
  • Continue routine cleaning and disinfection.

Q.  What plans should an employer make for the possibility that one of its employees tests positive for COVID-19?

A.  An employer should ensure compliance with Cal/OSHA Emergency Regulations, give notice to workers' compensation carriers and prepare to implement those plans (Also see Section on OSHA/Workplace Safety/Workers' Compensation):

  • Determine the last time the employee entered your workplace, and ascertain the workplace areas in which the employee worked;
  • Ask the COVID-19+ employee to identify any other employees with whom s/he had contact, the length of contact and the type of contact;
  • Alert all employees that are identified that they may have been exposed to a co-worker diagnosed with COVID-19 and direct them to keep an eye out for symptoms, COVID-19 related benefits and protections, and disinfection and safety measures that will be taken at the worksite in response to the potential exposure.  DO NOT reveal the identity of the COVID+ co-worker;
  • If the COVID-19 diagnosed employee worked in close contact with specific other employees, close contacts might need to be quarantined and, if possible, work remotely, unless the close contact is fully-vaccinated and asymptomatic;
  • All employees in close contact with the COVID+ employee should be tested at employer expense unless the employee was COVID+ within the prior 90 days;
  • All COVID-19+ employees and, if required by CDPH orders - employees following close contact, are subject to the same isolation and return to work requirements, regardless of vaccination status or prior infection and must isolate for at least 5 days, returning after day 5 only if symptoms are not present or are resolving, at least 24 hours where any fever is less than 100.4 without fever reducing medication, and the employee tests negative on day 5 or later.  Absent a negative test, the employee’s isolation ends after day 10.

All employees who return to the workplace shall wear a well-fitting mask around others for a total of ten days, after their first postive test or since COVID-19 symptoms commenced.

CCPA/CPRA Considerations

Q.  Does the COVID-19 crisis have any implications under the California Consumer Protection Act (CCPA) as amended by the California Privacy Rights Act (CPRA) for employers?

A.  The CCPA currently requires certain employers to provide job applicants, new hires, and current employees with a notice stating the categories of personal information collected and the business purposes for which that personal information will be used.  The CPRA is effectice January 1, 2023 and adds additional requirements.

If employers begin to collect medical information such as customer or employee temperature or COVID-19 testing results, employers may need to modify and/or issue new notices identifying medical information as a category. CCPA notices should be provided at or before the collection of personal information.

Q.  Why does an employer need to be concerned about the CCPA/CPRA when employees return to the workplace?

A.  Employers who are obtaining additional information about their employees’ health, temperature and COVID-19 testing are likely accumulating personal information for which they may be required to give notice to employees and applicants.   For more information about CCPA/CPRA requirements, click here

Q.  Is there a timing issue?

A.  Yes, the California Attorney General commenced CCPA enforcement efforts on July 1, 2020.  A new enforcement agency, the CPPA, will commence enforcement actions on July 1, 2023.

Q.  Which employers are subject to the CCPA/CPRA?

A.   The threshold test to determine whether an employer is likely required to comply with the CCPA/CPRA occurs when any of the following three factors occur:

  • (1) annual sales of $25M or more;
  • (2) buy, sell, or share for “commercial purposes” 100,000 or more personal records; or
  • (3) derive 50% or more of its annual revenue from selling “personal information.”
  • Including a qualifying affiliation with another entity subject to CCPA/CPRA. 

Q.  What is personal information?

A.  “Personal information” identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household,” including 11 categories of consumer information such as name, address, personal identifier, IP address, email address, account name, Social Security number, driver’s license number, passport number, biometric information, characteristics of protected classifications, internet browsing history, geolocation data, education information and more.  The information may be in document or electronic format.

The CPRA adds Personal Sensitive Information categories including account log-in, credit or debit card numbers combined with passwords or credentials to provide access, email content, genetic data, sex life, unless such information is publicly available through other sources.

Even though the CCPA/CPRA was originally written with an intent to protect consumers from having their personal information exploited against their wishes, modifications to the statute continue to take place, several of which impact employers in their role as an employer.  For the latest information about the CCPA/CPRA and modifications since its inception, see the attached link to the California Attorney General’s CCPA webpage:  https://oag.ca.gov/privacy/ccpa.

Q.  What should a covered employer do to comply with CCPA/CPRA?

A.  Employers must give an appropriate notice to applicants and employees about the categories of employee personal information that the employer maintains, how that information is used, how long it is maintained, how to correct the information and the employee's right not to be retaliated against for implementing their rights under CCPA/CPRA.

Q.  What goes into a notice?

A.  The notice to applicants and employees should be:

  • drafted in plain, straightforward language;
  • easily readable, including on small screen (phones)
  • in the language used in the ordinary course of business to communicate with the relevant population;
  • able to identify the type of personal information that the employer collects;
  • descriptive of the purposes for which the business will use personal information;
  • accessible to the disabled or provide information on how a California resident or employee with a disability may access the notice in an alternative format;
  • provide appropriate notices of protections and
  • identify at least two designated methods as to how to request information, or request the correction or deletion of information.

Employers should note that HIPAA protected information such as that which is accumulated for health insurance purposes is expressly excluded from the CCPA/CPRA and employers are not required to provide notice concerning the collection of HIPAA-covered health benefits.  For more information about the CCPA/CPRA’s Notice requirements, click here.

Q.  What else is required of employers under the CCPA/CPRA?

A.  Employers must have “reasonable security measures” to prevent data breaches that would lead to unauthorized access to employee personal information such as social security numbers, medical leave requests, warnings/disciplinary actions, performance evaluations, drug tests etc.  Unfortunately, neither the CCPA/CPRA nor the California Civil Code defines what “reasonable security measures” entails.  The California Attorney General endorsed the Center for Internet Security’s 20 CIS Controls as a baseline for reasonable security, including:

  • implementing host-based firewalls, spam filters or port-filtering to prevent unauthorized access;
  • data protection/system backups;
  • removing sensitive data or systems from the network and limiting access based on the need to know;
  • training employees to identify, report and not respond to phishing attempts;
  • maintaining an active inventory of hardware devices and ensuring only authorized devices are connected to the network;
  • ensuring software is up to date from official sources;
  • changing default passwords especially on newly issued hardware;
  • installing anti-virus and anti-malware software on all devices;
  • training employees on how to identify and properly store, transfer, archive, and destroy sensitive information.

For more information about the CCPA/CPRA’s Notice requirements, click here.

FEDERAL GUIDANCE

NOTE:  On December 17, 2021, The United States Sixth Circuit Court of Appeals removed the nationwide injunction against Fed/OSHA's enforcement of the ETS. The Supreme Court heard argument on this issue on January 7, 2022 and on January 13, 2022, the Supreme Court reinstated the stay of enforcement of the ETS, thus, pending further orders from the Sixth Circuit Court of Appeals, employers are not required to follow the Fed/OSHA vaccine mandate. In a separate case, the Court upheld Health and Human Services’ rule mandating vaccination for healthcare workers at facilities participating in Medicare and/or Medicaid.

In addition, on December 7, 2021, the United States District Court for the Southern District of Georgia issued a nationwide injunction against Executive Order 14042’s vaccine mandate that ordered federal contractors and subcontractors to mandate COVID-19 vaccine for most of their employees.

On April 18, 2022, a Federal District Court struck down the CDC’s Mask Mandate that had required masking during travel throughout the United States concluding that the order exceeded the CDC’s statutory authority and failed to adequately explain its decisions. The Biden Administration has appealed this order.

Vaccination and Testing Emergency Temporary Standard (VAX ETS)

While the VAX ETS is not in effect, Fed/OSHA has indicated that it is working on promulgating non-emergency regulations. We believe that they will largely parallel the VAX ETS and, therefore, provide the following information.

Q.  My company has over 100 employees across several states, is it covered by the VAX ETS?

A.  Most likely.  All employers under Fed/OSHA’s jurisdiction with 100 or more employees on or after the effective date in the United States, company-wide, are covered.  Part-time employees must be included in the count, but not independent contractors.

Q.  My company uses 150 staffing agency temporary employees across several states and 15 other employees, is it covered by the VAX ETS?

A.  No.  If a business utilizes a staffing agency for its workforce needs, the staffing agency’s employees will not count toward the business’ 100 employee threshold.  However, if that staffing agency employs 100 or more employees, the staffing agency is responsible for VAX ETS compliance as to the staffing agency’s employees.

Q.  Are any types of businesses with 100 or more employees not covered by the VAX ETS?

A.  Yes.  The VAX ETS does not apply to Federal contractors or subcontractors or healthcare workers who are covered under separate regulations, include the Healthcare ETS published June 21, 2021.

Q.  Does the VAX ETS apply to all employees of a covered employer?

A.  No.  An employer may be covered, the VAX ETS does not apply to employees who work outdoors or those who work from home and do not report to a workplace where co-workers or customers are present.

Q.  Is there any additional type of recordkeeping required?

A.  Yes.  Employers must develop and implement a mandatory COVID-19 vaccination policy.  Employers are required to seek out the vaccination status of each employee, obtain proof of vaccination, maintain records of employees’ vaccination status, and a roster of each employees’ vaccination status.  Such records are considered confidential medical records.

Employers must provide employees with information about the VAX ETS and the new policies in a language and at a literacy level that the employees will understand which must include information about protection from retaliation and discrimination, laws related to criminal penalties for supplying false statements, a copy of the CDC’s “Key Things to Know About COVID-19 Vaccines”, located at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html and that employees are protected against discharge or retaliation for employees’ compliance.

The VAX ETS permits several means for employees to confirm their vaccination status, including an attestation that the statement is truthful and false information may subject the employee to criminal penalties.  Any employees who do not provide proof of vaccination must be treated as not fully-vaccinated.

For employees subject to a testing regimen, the employee must provide, and the employer must maintain, records of the weekly testing, which are confidential medical records.

Q.  Does the VAX ETS require covered employers to mandate that employees get vaccinated?

A.  Yes.  Covered employers must mandate vaccination for all employees, except for those who need an accommodation or other medical necessity.  While the VAX ETS requires a vaccination mandate it does not impose or direct employers as to how to sanction employees who will not comply, other than to require testing and face coverings.

Q.  Will an employer be required to pay any time off under the VAX ETS?

A.  Yes.  Employers are to provide employees with up to four hours of paid time at the regular rate of pay to receive each dose of the vaccine, and time and paid sick leave to recover from any side effects.

Q.  For employees who need an accommodation or are not fully vaccinated, does the VAX ETS require testing?

A.  Yes.  Each unvaccinated or not fully-vaccinated employee must be tested weekly, but the VAX ETS does not require employers to pay for testing. (All employers should consult with counsel as to whether they may be required to pay for testing under a mandatory vaccination program in states like California, local regulations or ordinances, or collective bargaining agreements.)  Not fully-vaccinated employees who test COVID+ become exempt from weekly testing requirements for 90-days.

Not fully-vaccinated employees that work remotely, must be tested within seven days before coming into the workplace and provide proof of a negative test.  This seems to indicate that a not fully-vaccinated employee that is scheduled for a weekly return to the worksite will need weekly testing.  However, a similar employee scheduled for monthly visits will need testing in the seven days prior to the monthly site visit.

Q.  For employees who need an accommodation or are not fully vaccinated, does the VAX ETS require a face covering?

A.  Yes.  Not fully-vaccinated employees must wear a face covering when working indoors or occupying a vehicle with another person during work, except in an enclosed office-type space, for the time limited to eat or drink, for security compliance, or where a face covering is infeasible or creates a greater hazard.

Q.  May an employer require vaccinated employees to work without masks?

A.  No.  Employers may not prevent vaccinated employees from wearing a face covering unless doing so creates a serious workplace hazard.

Q.  How is an employer supposed to learn about an employee who is COVID+?

A.  An employer’s VAX ETS policy must require employees to give notice upon learning that the employee tested COVID+ or was diagnosed with COVID, regardless of vaccination status.  The VAX ETS policy should identify the notice procedure for employees to follow.

Q.  If a fully-vaccinated employee tests COVID+, can they continue working at the worksite?

A.  No.  Once the employee gives notice, an employer must remove that employee from the workplace until the employee meets the return to work criteria.  A return to work is permitted following specific negative confirmation testing, a return to work from licensed healthcare provider or under the CDC’s return to work criteria.  While the VAX ETS does not require an employer to provide paid time off, employers should consult with counsel about state, local and collective bargaining requirements for paid time off.

Q.  Is there any additional reporting obligation imposed on covered employers?

A.  Yes.  Covered employers must report each work related COVID-19 fatality within 8 hours of the employer learning of the fatality and each work-related COVID-19 in-patient hospitalization within 24 hours of learning about the hospitalization.

Q.  Are there any other obligations that a covered employer needs to be aware of?

A.  Yes.  The VAX ETS allows an employee or his or her representative, to receive a copy of the employee’s vaccine and testing records that are maintained by the employer and to provide the total number of employees and the aggregate number of fully-vaccinated employees in a given workplace in one business day after making such a request.  Further, upon request from Fed/OSHA an employer must provide a copy of its policy in four hours and all other records required by the VAX ETS by the next business day.

The Coronavirus Response and Relief Supplemental Appropriations Act of 2021 (CRRSA)

Q.  Other than direct funds to individuals, does the CRRSA provide any benefits for employers?

A.  The CRRSA is intended to provide assistance to small businesses and preserve jobs for American industries.

Q.  What does CRRSA provide for small businesses?

A.  A paycheck protection program to help small businesses maintain payroll, hire back employees, and cover overhead, as well as provide access to capital for minority, underserved, veteran and women-owned businesses.

Federal Guidance Regarding Eligibility For Unemployment Insurance

Q.  Are gig workers eligible for unemployment benefits because of reduced demand for their services, even when they are not barred from providing their services due to stay-at-home orders?

A.  Yes.

Q.  Are workers eligible for unemployment benefits if they have symptoms of COVID-19 and seek a diagnosis?

A.  Yes.   A positive COVID-19 test is not required.

Q.  Are workers eligible for unemployment benefits if they are diagnosed with COVID-19 and forced to take unpaid time off work?

 Yes.

Q.   Are workers eligible for unemployment benefits if their childcare facility is closed after school was scheduled to adjourn for the year?

Yes.

Q.  Are workers eligible for unemployment benefits if they are subject to stay-at-home or shelter-in-place orders that prevent them from working?

Yes. 

Q.  Are workers eligible for unemployment benefits if they are advised to quarantine by a health care provider?

A.  Yes. 

Q.  Do workers remain eligible for unemployment benefits if their reason for eligibility changes? 

A.  Yes, and they do not need to file a separate application.

American Rescue Plan Act of 2021 - Families First Coronavirus Act

Q.  Is the FFCRA still in effect?

A.  The American Rescue Plan Act of 2021 (ARPA) expanded and extended the FFCRA to provide that covered employers may voluntarily provide Emergency Paid Sick Leave (EPSL) and expanded FMLA leave and receive a tax credit through September 30, 2021.  Note that the FFCRA expires on September 30, 2021 and therefore, employers should not expect to be able to apply for tax credits thereafter, unless extended by Congress.

HEALTHCARE INDUSTRY-SPECIFIC INFORMATION

Q. Does California have special orders to attempt to contain COVID-19 that pertain to healthcare workers?

A.  Yes.  On July 26, 2021, Governor Newsom ordered California state workers, healthcare workers and other employees who work in “high-risk congregate settings” to get vaccinated or submit to weekly COVID-19 testing and wear masks.  Governor Newsom’s order covers employees of hospitals, nursing homes, dental and physician offices, and other healthcare settings.  Healthcare facilities must comply with these requirements by August 23, 2021.

On August 5, the California Department of Public Health ordered all healthcare workers to get fully vaccinated against COVID-19 by September 30, 2021 except in some cases of accommodations for medical reasons or sincerely held religious beliefs.

The order broadly applies to any "Health Care Facilities," including:

  • General Acute Care Hospials 
  • Skilled Nursing Facilities (including Subacute Facilities)
  • Intermediate Care Facilities 
  • Acute Psychiatric Hospitals
  • Adult Day Health Care Centers
  • Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
  • Ambulatory Surgery Centers
  • Chemical Dependency Recovery Hospitals
  • Clinics & Doctor Offices (including behavioral health, surgical)
  • Congregate Living Health Facilities
  • Dialysis Centers
  • Hospice Facilities
  • Pediatric Day Health and Respite Care Facilities
  • Residential Substance Use Treatment and Mental Health Treatment Facilities

The order applies to all individuals, paid and unpaid, who work in any indoor setting where (1) care is provided to patients, or (2) patients have access for any purpose and expressly includes contracted persons who not employed directly by the health care facility and those not involved in patient care, but who could be exposed to infectious agents (e.g., clerical, volunteers, laundry, security, facilities management, food service, administrative, etc…).

Exemptions may be requested through a signed declination form stating (1) the workers is declining vaccination based on religious beliefs or (2) the worker is excused from receiving the vaccine for a qualifying medical reason. If seeking a medical waiver, the worker must provide a signed statement from a physician, nurse practitioner or “other licensed medical professional practicing under the license of a physician” stating that s/he qualifies for the exemption and with the probable duration of the worker’s inability to receive the vaccine. Any health care facility employer should not inquire any further about the medical reason. Qualified exempt individuals must test for COVID-19 twice weekly if they work in an acute health care or long-term care setting and once weekly in all other settings. They must also wear a surgical mask or higher-level respirator, such as an N95 mask, at all times while in the facility. The healthcare facility must maintain records of vaccination (name, date, vaccine type and date of administration) or exemption status and keep copies of unvaccinated worker declination forms. Records of any regular testing required for exempt individuals must also be maintained. All vaccination and testing information should be treated as a confidential medical record and should be stored separately from the employee’s personnel file.

On September 28, 2021, CDPH ordered that all workers in adult, senior care, and in-home direct care settings get fully vaccinated against COVID-19 by November 30, 2021, with exceptions for persons providing services to a single household, and except in some cases of accommodations for medical reasons or sincerely held religious beliefs. Workers includes employees and independent contractors.

Q.  Are healthcare employers of unionized employees safe to change compensation, schedules, and/or terms and conditions of employment in response to COVID-19?

A.  Possibly.  A Collective Bargaining Agreement (CBA) may include a strong management rights clause, “force majeure”, emergency or disaster clause that allows for greater flexibility than “business as usual”.  Use your counsel to determine whether the COVID-19 pandemic meets any trigger conditions if you have such a clause. Otherwise, the National Labor Relations Act (“NLRA”) requires employers to bargain in good faith over mandatory subjects of bargaining, including wages, hours, and the terms and conditions of employment.  Employers who make unilateral decisions regarding these terms may be subject to an unfair labor practice charge that may apply even during emergency situations such as the current COVID-19 pandemic. 

Q.  What are some of the mandatory subjects of bargaining that may arise during the COVID-19 pandemic?

A.  For healthcare employers, this would include changes to work schedules, screening employees for symptoms, requiring protective gear, and requiring vaccinations, among others.

Q.  What if my CBA does not contain a force majeure clause, do I have to strictly comply with its provisions?

A.  It depends.  The duty to bargain in good faith over the terms and conditions of employment may be suspended when a “compelling economic exigency” requires immediate, unilateral action.  The compelling economic exigency standard is high, but healthcare employers may be able to justify such action in a pandemic situation.  Nevertheless, healthcare employers who elect to proceed down this path should be mindful that there is no bright-line rule defining a “compelling economic exigency.”   As such, making such unilateral decisions is not without risk and should only proceed after consulting with your legal team.

Q.  As a healthcare employer facing this COVID-19 pandemic, I need to make quick decisions, are there other avenues that I may pursue?

A.  Yes.  Communicate with your union stewards and agents about your upcoming perceived needs and plans and work to get their buy-in.  Unions may waive statutory rights.


GOVERNMENT LIMITATIONS ON GATHERINGS AND BUSINESSES

State of California

Q.  What is the State of California’s most recent order?

A.  The Governor terminated the executive orders that put into place the Stay Home Order and the Blueprint for a Safer Economy.  He is also phasing out the vast majority of executive actions put in place since March 2020 as part of the pandemic response, leaving in place a subset of provisions. 

The CDPH’s updated guidance aligns with use of CDC Community Levels for masking.

Q.  What are the face-covering requirements in California?

A.  Effective September 20, 2022, CDPH

  • Shifts from a strong recommendation for the general population, in all indoor settings at all times to use of CDC Community Levels to help inform masking recommendations, which is consistent with August 11th CDC updated recommendations.
  • Aligns correctional facilities with current CDC recommendations (CDC updated guidance on May 3rd) which notes that correctional facilities may make masks optional when CDC community levels are low.
  • Aligns recommendations for homeless shelters, emergency shelters and cooling centers to the above recommendation for correctional facilities, i.e., also shifts from requirements to masking recommendations in these settings when CDC community levels are low.
  • Updated guidance is effective September 23, 2022.

There are a few exceptions for:

  • Children under two years of age;
  • Persons who require a medical accommodation; and
  • Persons for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.

No persons can be prevented from wearing a mask as a condition of participation in an activity or entry into a business. 

Employers need to provide masks or reimburse the cost if employees will have to provide them to wear them at work.  It is also a good idea to distribute the Guidance from the California Department of Public Health on how to properly wear face coverings, which can be found here.

REMOTE WORK ISSUES

Q.  Do I still have to investigate employee complaints during the COVID-19 crisis?

A.  Yes.  As businesses re-open, employers should anticipate an increase in complaints about discrimination, harassment, and/or retaliation as a result of the havoc caused by the COVID-19 crisis.  Employers are still obligated to conduct prompt, thorough, and impartial investigations of employee complaints, notwithstanding the COVID-19 emergency.  Employers should exercise flexibility in how investigations are conducted under the circumstances, while balancing the obligation to promptly and thoroughly investigate complaints.  To that end, employee complaints should be conducted remotely, as in-person meetings are not presently possible or recommended due to COVID-19-related social distancing practices.  Video conferencing is preferable because it allows for face-to-face establishment of rapport with witnesses. If video conference is not feasible, witnesses may also be interviewed by telephone.

Q.  I know that many people are working from home, is there anything that I should do before I authorize work from home?

A.  Yes, you should work with your counsel to create a Remote Work Agreement that addresses any technology that you are providing, hours of work, overtime, rest periods, break periods, time tracking, safety, professionalism and security.  This agreement may be for a limited period of time or revocable at your discretion.  Employers continue to have exposure for wage, hour, overtime, Workers' Compensation and Cal/OSHA issues for non-exempt employees and should ensure that Remote Work Agreements address work hours and timekeeping procedures and that timekeeping procedures are monitored.

Q.  Has the DOL issued any guidance to help track the hours of employees working from home?

A.  Yes, click here for the DOL’s field assistance bulletin.  DOL’s guidance reminds employers that they must pay for all time that an employee is “suffered or permitted to work,” for all hours the employee is scheduled and/or directed to work, and when an employee works unscheduled hours.  If an employee performs work outside of the employee’s scheduled hours, it still must be compensated.  Employers must use “reasonable diligence” to determine all hours being worked by their employees. 

Q.  So, what are some examples that I can use to track hours for non-exempt employees working from home?

A.  Employers may provide forms to be completed by employees to report any work outside of their scheduled working hours (e.g., responding to emails, texts, or calls), missed meal or rest periods, or to confirm that the employee worked the scheduled shift.  The DOL expects employers to use a reasonable diligence standard which is based on what an employer “should” know, not on what an employer “could” know.  “… reasonable diligence generally does not require the employer to undertake impractical efforts such as sorting through [computer access logs] to determine whether its employees worked hours beyond what they reported.”

Q.  Does the DOL guidance apply in California?

A.  Yes.  Employers must implement and communicate reasonable procedures for reporting ALL hours worked by remote employees, and should not discourage accurate and complete reporting or tell employees that work performed outside of scheduled working hours will not be compensated.  If employees are working too much overtime or hours off-the-clock, those employees should be disciplined, not denied pay. 

Q.  Do my remote working employees get rest periods and meal breaks?

A.  Yes, if they are non-exempt.

Q.  Do my non-exempt remote working employees get paid overtime if they work overtime?

A.  Yes, if they are non-exempt.

Q.  What happens if my employees get injured, in their own homes, while working?

A.  They should report it to you and you should commence your Workers’ Compensation protocol by providing them with the appropriate form and let your carrier know.  As you are moving to a remote work workforce, you should contact your workers’ compensation carrier and determine whether you need to advise them of this change.

Q.  May I allow my employees to use their own computers, pads, and other personal electronic devices?

A.  You may, but remember that in California, you are obligated to indemnify or reimburse them for the use of their personal devices and data if they need to use it for work purposes.  This may be a difficult figure to calculate but a Remote Work Agreement can be useful to demonstrate what the employee agreed to as a reasonable reimbursement.

Q.  How do I protect my trade secrets if my employees work from home due to a COVID-19 quarantine or other government order?

A.  With the increasing number of Health Department and other orders streamlining workplace work, many employers are required to implement remote work capabilities and to do so with little warning.  Keep in mind that your employees, ideally, should work with hardware that your IT team has approved and that will protect your information.  Be sure that your team has high-security internet connections to your servers or cloud servers.  And, in conjunction with assigning remote work to these employees, ensure that they renew their commitment, in writing, to protect your trade secret and confidential information, not to conduct business work on personal hardware or personal email accounts and, also, not to conduct personal business from their work devices.

Q.  I need to hire new employees to work remotely, but my area has orders restricting movement, how do I comply with I-9 requirements?

A.  DHS announced that employers temporarily will be permitted to comply with I-9 document inspection requirements for new hires using video, email, or fax review of their work authorization documents.  Employers still must complete the I-9 from and annotate it with “COVID-19.”  When normal operations resume, the employer must verify the original documents in person within 3 business days and annotate the form.

Q.  I’m an eVerify employer.  Eight days ago, the eVerify system returned a Tentative Non-Confirmation for a newly hired employee.  May I terminate the employee?

A.  No.  Due to the closure of the Social Security offices, eVerify is extending the interim or tentative status for all employees whose employment authorization status can’t be confirmed.


PAY AND LEAVE ISSUES

General Information

Q.  If I have an “essential business” and/or am in the “critical infrastructure sector” as defined by the Department of Homeland Security and/or state and local authorities as "exempt" from the shelter in place orders, are my employees still required to work?

A.  Yes, to the extent they are essential workers.  However, telecommuting arrangements should be employed to the extent practicable and social distancing methods should be utilized in the workplace.  Some cities and counties (e.g. Bay Area and Los Angeles) are requiring essential businesses to adopt specific, written social distancing protocols.  Los Angeles has an order requiring certain essential business employers to provide masks to employees and allow handwashing every 30 minutes.  Employers need to be familiar with local government orders in jurisdictions in which they have employees working.  Of course, if an employee qualifies for Coronavirus-related leave, the employee’s needs should be accommodated.

Q.  If I decide to lay employees off due to the COVID-19 crisis, what am I required to pay to them?

A.  Employers must pay out all accrued, unused vacation (along with all final wages) to employees who are laid off as a result of the overarching COVID-19 crisis, at the time of lay-off.

Q.  Can we ask employees if they have medical conditions that make them at higher risk for experiencing serious symptoms of COVID-19?

A.  Medical inquiries are, generally, not recommended.  You can inform employees of the general guidance on who is considered high risk (those 65 and older (some state and local orders say 60 and older) and those with certain underlying medical conditions) and tell them that if they are in a high risk group to let you know so that they can either be placed on leave or a telecommuting arrangement worked out.  The EEOC posted guidance on March 18, 2020 that employers may ask employees who call in sick whether those employees are experiencing COVID-19 symptoms, like fever, chills, cough, shortness of breath and/or sore throat.  Such information must be maintained as a confidential medical record to comply with the ADA.  California’s Department of Fair Employment and Housing (DFEH) advises that employers may ask employees if they are experiencing COVID-19 symptoms, such as fever, chills, cough or sore throat.  Note that, gathering such information may implicate additional CCPA (California Consumer Privacy Act) compliance in California.  See the CCPA section of this webpage.

Q.  Can we require all employees to submit to a temperature check before starting their shifts?

A.  Under updated guidance issued by the EEOC on March 18, 2020, employers are permitted to conduct temperature checks of employees entering the workplace as a means of prevention.  However, this may be of limited utility because individuals carrying Coronavirus may not necessarily have a fever.  The DFEH advises that employers may measure employees’ body temperature for the limited purpose of evaluating the risk that an employee’s presence poses to others in the workplace due to COVID-19.  Additionally, creating records of employees' temperature checks may implicate additional CCPA (California Consumer Privacy Act) compliance in California, non-contact thermometers should be used and time spent should be compensated.

Q.  Can we ask other health-related questions of employees before they start work?

A.  Yes.  Employers that screen employees for COVID-19 at the workplace may ask health-related questions, however, such information should be treated as confidential medical records, and maintaining records of employees’ answers implicates CCPA notice requirements.

Q.  Can we prohibit all employees who are 65 and older from working (unless they can work from home)?

A.  The answer is “probably,” because these individuals are in a high-risk group that has been advised and/or directed to stay home.  However, if you clearly advise employees in the high risk groups that they are encouraged to stay home and they knowingly and voluntarily decline to do so, you may be at risk of an age discrimination claim if you refuse to allow them to work (particularly if without pay), even though you have an essential business and they are an essential worker who is exempt from any applicable shelter-in-place order. However, it is advisable to review any state and local shelter in place order(s) applicable to your specific employees.  Some orders appear to expressly require excluding older workers from reporting to the worksite.

Q.  Can we require a doctor’s note if an employee says they cannot work for COVID-19 reasons?

A.  California state and local laws limit the circumstances under which an employer may require a doctor's note for COVID-19 reasons.  Generally, documentation, including a doctor's note, is not required to substantiate the need for leave.  For paid leave being taken under the FFCRA, please see our Q&A above under the FFCRA section.

Q.  Has California’s Department of Fair Employment and Housing (DFEH) provided any guidance to employers?

A.  Yes, the DFEH recently published guidance related to public health recommendations, sending employees home, medical information, privacy, protective equipment, CFRA leave, and reasonable accommodation.  https://www.cdflaborlaw.com/_images/content/DFEH-Employment-Information-on-COVID-19-FAQ_ENG.pdf

Q.  Can an employee take FMLA/CFRA leave for a COVID-19 absence?

A.  If an employee is ill and/or is caring for a covered family member who is ill, and the illness qualifies as a serious health condition under FMLA/CFRA, then yes. Additionally, the new federal law expands the FMLA to allow FMLA leave to be used by almost any employee to care for a child whose school or child care has closed due to the public health emergency.  Expanded FMLA leave taken to care for a child whose school is closed will not qualify as CFRA leave because it is not a covered reason for using CFRA leave.  It will only count as FMLA leave.

Q.  Are employees who cannot work because they contracted COVID-19 entitled to job-protected leave under the CFRA?

A.  It depends.  The DFEH concluded that COVID-19 will qualify as a serious health condition for CFRA purposes if it results in inpatient care, continuing treatment, supervision by a health care provider, or if it leads to other conditions such as pneumonia.

Q.  May I require medical certification to support an employee’s request for CFRA leave?

A.  The DFEH advises that while an employer has the right to receive medical certification within 15 days of an employee’s request for CFRA leave, it is not practical for employees to obtain certifications when medical providers are tending to the emergency needs of others and, therefore, employers must use their judgment and recommendations from public health officials as to whether to waive certification requirements.

Q.  Are employees with an illness related to COVID-19, who are not eligible for CFRA leave, entitled to accommodation if they cannot go to work?

A.  Probably.  Unpaid leave and work from home are both forms of accommodation that California employers of five or more employees should consider when evaluating whether an accommodation is reasonable or whether it would impose an undue hardship.  The DFEH has not determined that COVID-19 rises to the level of a disability requiring accommodation, as compared to a seasonal flu, but whether COVID-19 is a disability is a fact based determination in each case.

Q.  If my employee seeks accommodation because the employee is disabled by COVID-19, am I entitled to require medical documentation as to the existence of the disability and the need for accommodation?

A.  Probably.  The DFEH recognizes that an employer is, generally, entitled to medical documentation to support an accommodation request.  However, the DFEH recommends that employers waive such a requirement until a time when the employee can reasonably obtain such information because it may be impractical to obtain medical documentation in the midst of a pandemic.

Q.  What other types of accommodation should I prepare for?

A.  If personal protective gear, such as masks, gloves, gowns or face shields are required to perform the employees’ functions, an employer should be prepared to accommodate disabled employees with special gowns designed to accommodate wheelchairs and/or non-latex gloves, unless doing so constitutes an undue hardship.

Q.  Will the DFEH continue to aggressively monitor and prosecute disability and other discrimination claims arising out of employment?

A.  Yes.  The DFEH makes an effort to remind employers that they must continue to accommodate the needs of all disabled employees and that they must not discriminate due to an employee’s race or national origin.

2022 COVID-19 Supplemental Paid Sick Leave

Governor Newsom signed AB 151 into law to extend COVID-19 Supplemental Paid Sick Leave to most California employees through December 31, 2022.

Q.  Does this impact all employers in California?

A.  No, but it will impact many employers as it applies to all employers with more than 25 employees.

Q.  How much paid leave will be allowed?

A.  A total of 80 hours will be available to full-time employees, in addition to existing Paid Sick Leave and other leave provided by an employer as a benefit.

First, employers are to provide up to 40 hours if an employee:

  1.  is unable to work because the employee is attending a COVID-19 vaccine appointment for themselves or a family member;
  2.  is unable to work the employee Is experience symptoms, or is caring for a family member who is experiencing symptoms related to a COVID-19 vaccine or vaccine booster;
  3.  has been advised by a health care provider to isolate or quarantine due to COVID-19 or is caring for a family member who has been advised to isolate or quarantine;
  4.  is subject to a quarantine or isolation period related to COVID-19 as required by an order or guidance published by the CDPH, CDC, or a local public health officer who has jurisdiction over the workplace; or is caring for a family member who is subject to such an order or guidance requiring quarantine or isolation; and
  5.  is caring for a child, whose school or place of care is closed or otherwise unavailable due to COVID-19 related reasons.

In addition, employers are to provide another 40 hours for full-time employees of paid supplemental sick leave if either:

  1.  the employee tests positive for COVID-19 and misses work time as a result; or
  2.  a family member for whom the employee is providing care, tests positive for COVID-19 and misses work.

There are many other details, including limited time related to vaccine appointments, so consult with your counsel for your specific situation.

Q.  How do I calculate the amount of 2022 Supplemental Paid Sick Leave?

A.  Carefully. An employer needs to calculate non-exempt compensation at the regular rate of pay, which may differ from the employee’s base rate. Or, an employer may calculate the wage rate by dividing the employee’s total wages (not including overtime premium pay), by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior ninety days of employment before the leave is taken. For piece rate, commission or other pay methods that use all hours to determine the regular rate of pay, total wages, not including overtime premium pay, shall be divided by all hours, to determine 2022 COVID-19 Supplemental Paid Sick Leave.

Employers are not be required to pay more than $511 per day and $5,110 total to a single covered employee for 2022 COVID-19 Supplemental Paid Sick Leave.

Q.  Does this impact any record-keeping requirements?

A.  Yes. Eligible employers should separately track each “bucket” of 2022 COVID-19 Supplemental Paid Sick Leave. An employer is required to “provide an employee with written notice that sets forth the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period in which it was due to be paid” which may be provided via employees’ paystubs or in a separate writing provided on the designated pay date with the employee’s payment of wages.

Also, the California Labor Commissioner will, likely, require posting a notice of the 2022 COVID-19 Supplemental Paid Sick Leave laws that will remind employees about the availability of the leave and that employers may not retaliate against employees who elect to use it.

Q.  What do I do about retroactivity?

A.  The law does not require a written request from an employee, so if an employee makes any kind of request for retroactive pay, explore with them whether they are eligible and look into replacing any vacation, PTO or Paid Sick Leave that they may have used with 2022 COVID-19 Supplemental Paid Sick Leave.

City Issues

Los Angeles County and City

Q.  Does Los Angeles County have any special orders?

A.  Yes, effective April 21, 2022, the Los Angeles County Department of Public Health (LADPH) updated its masking requirements and while masking is not mandated for all persons, regardless of vaccination status, in most indoor public settings and aligns with the guidance ordered by the CDPH.  Further, there are no longer verification of vaccination status or negative COVID-19 test status requirements in most circumstances in order to unmask.

LADPH, too, has aligned with CDC's Community Level Matrix to relax its previous standards. 

Also, Cal/OSHA continues to require masking when required by the CDPH or local health department orders, for employer-provided transportation and if an employer experiences an Outbreak or Major Outbreak.

Q.  Which employers should follow the LA County Health Department orders?

A.  All employers in Los Angeles County, except those located in Pasadena and Long Beach.

Q.  What is the new Los Angeles Emergency Paid Sick Leave Order?

A.  On April 7, 2020, Los Angeles' Mayor issued an emergency paid sick leave order that requires certain employers to provide additional paid sick leave to employees for COVID-19 reasons.  The order was revised and updated on June 24, 2021.  This order shall remain in effect until two calendar weeks after the expiration of the COVID-19 local emergency period. 

Q.  Which employers are covered by the new LA paid sick leave order?

A.  The COVID-19 paid sick leave Order applies to most employers that have either: (i) 500 or more employees within the City of Los Angeles; or (ii) 2,000 or more employees within the United States. 

Q.  Which employees are covered by the new LA paid sick leave order?

A.  Employees covered by the Order are those who perform any work within the geographic boundaries of the City of Los Angeles and who were continuously employed by the same employer for 60 days.

Q.  What are qualifying reasons to use supplemental paid sick leave under the LA order?

A.  Covered employers are required to provide paid sick leave for any of the following reasons:

  1. The Employee takes time off due to COVID-19 infection or because a public health official or healthcare provider requires or recommends the employee isolate or self-quarantine to prevent the spread of COVID-19;
  2. The employee takes time off work because the Employee is at least 65 years old or has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system;
  3. The employee takes time off work because the employee needs to care for a family member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine;
  4. The employee takes time off work because the employee needs to provide care for a family member whose senior care provider or whose school or child care provider caring for a child under the age of 18 temporarily ceases operations in response to a public health or other public officials recommendation.  This provision is only applicable to an employee who is unable to secure a reasonable alternative caregiver.
  5. The employee takes time off work to receive a vaccine, including travel time to and from the appointment and to recover from any symptoms related to the COVID-19 vaccine.

Q.  How much supplemental paid sick leave does a covered employer have to provide under the LA order?

A.  A full-time employee (those who work 40 hours per week or are classified as full-time by the employer) must be provided with 80 hours of COVID-19 paid sick leave.  The pay is calculated based on the employee’s average two-week pay over the last 60 days of employment.  An employer need not pay an employee more than $511 per day or $5,110 in the aggregate, however.

A part-time employee must be provided with COVID-19 paid sick leave in an amount no greater than the employee’s average two-week pay over the last 60 days of employment, again subject to a cap of $511 per day and $5,110 in the aggregate.

Q.  Can I require a doctor's note or other documentation to support an employee's request to use paid sick leave under the LA order?

A.  No.  An employee is entitled to make an oral or written request to use COVID-19 paid sick leave.  An employer may not require a doctor’s note or other documentation to support the use of leave.

Q.  Is there any offset for paid leave already provided by a covered employer?

A.  An employer’s obligation to provide supplemental COVID-19 paid sick leave under the Order is reduced for every hour of paid leave the employer provided to an employee, not including the employee’s previously accrued hours, for COVID-19 reasons after March 4, 2020. 

Q.  Are there any exemptions from this new LA supplemental paid sick leave order?

A.  Yes.  The Order exempts the following:

  1. Emergency and Health Services Personnel.  Emergency Personnel refers to individuals specified in the April 1, 2020 City of Los Angeles Safer at Home emergency order Paragraph 5(vi), including all first responders, gang and crisis intervention workers, public health workers, emergency management personnel, emergency dispatchers, law enforcement personnel, and related contractors and others working for emergency services providers.  A health care worker encompasses individuals described in California Government Code Section 12945.2(c)(6) or individuals, including contract workers, working at a health facility licensed under California Health & Safety Code Section 1250.
  2. Critical Parcel Delivery Employers.  The Order states that employers of employees that provide global parcel delivery services are exempt.
  3. Employers That Already Have Generous Leave Policies.  If an employer has a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually, the employer is exempt from any obligation to provide supplemental leave pursuant to the Order for the employee that received the more generous paid leave.
  4. New Business Exemption.  The Order exempts new businesses that started in the City or businesses that relocated from outside the City on or after September 4, 2019 through March 4, 2020. To qualify, an employer could not have been in business in the City in the 2018 tax year.  However, the following businesses do not qualify for the new business exemption:  construction businesses as defined in Section 21.30(b).1 of the Los Angeles Municipal Code or film producers as defined in Section 21.109 of the Los Angeles Municipal Code.
  5. Government.  The Order does not apply to employees of government agencies working within the course and scope of their public service employment.
  6. Closed Businesses and Organizations.  Any business or organization that was closed or not operating for a period of 14 or more days due to a city official’s emergency order because of the COVID-19 pandemic or provided at least 14 days of leave are exempt from the requirements of the Order.
  7. Collective Bargaining Agreements:  Employees covered by CBAs that include COVID-19 sick leave provisions are not covered by the Order.  If a CBA does not provide COVID-19 sick leave provisions, employers must comply with the Order unless and until the CBA is amended to expressly waive the provisions of the Order.

Q.  How is the new LA paid sick leave order enforced?

A.  The Order, of course, prohibits retaliation against an employee for exercising rights under the Order.  An employee whose rights are violated may bring a civil action seeking, as applicable, reinstatement, back pay and paid sick leave unlawfully withheld, and attorneys’ fees and costs.

Q.  Can employees waive their rights under the new LA supplemental paid sick leave order?

A.  No, unless the employee is covered by a collective bargaining agreement which expressly waives the rights under the order.

Q.  When does the LA supplemental paid sick leave order expire?

A.  The Order is in effect until two calendar weeks after the expiration of the local COVID-19 public health emergency.

San Francisco

Q. What is the latest update for San Francisco?

A.  San Francisco revised its Public Health Order on January 26, 2022 to address vaccination and masking requirements for various businesses that operate in San Francisco, many of which went into effect February 1, 2022.

San Franciscans who work in indoor office settings do not need to wear a well-fitted mask if all of the below conditions are present:

  1. They are up-to-date on their vaccinations (which means the person must have also received a booster if booster-eligible);
  2. Visitors show proof of up-to-date vaccination or wear a well-fitted mask;
  3. Unvaccinated individuals who are granted exemptions for religious or medical reasons are tested before entry, provided that these individuals are not required to be tested more than twice a week and wear a well-fitted mask while in the office;
  4. The business has implemented an appropriate ventilation protocol as specified by the Public Health Order; and
  5. The business is not experiencing a COVID outbreak.

Operators of indoor Mega Events (now defined as those attended by 500 or more people) can now permit attendance based on proof of up-to-date vaccination or a negative COVID test.  The negative COVID test must be administered no more than one day prior to the event if it is an antigen test, or two days prior for a PCR test.  Self-administered antigen tests are not accepted unless it is verified by a third party.

Businesses such as gyms, fitness centers, restaurants, and bars previously were required to have staff and patrons show proof of vaccination.  They are now permitted, but not required, to provide limited exemptions based on religious or medical reasons.  However, individuals granted exemptions must show proof of a negative COVID-19 test before entry into the business, although they cannot be required to test more than twice a week, so long as the tests are at least three days apart.  Moreover, these individuals must wear a well-fitted mask (currently recommended to mean a N95, KN95, KF94, or other similar non-vented respirator, although a cloth mask over a surgical mask also suffices).  Additionally, patrons and personnel of gyms, fitness centers, and similar establishments can remove their masks while indoors if they are up-to-date on their vaccination status (with similar exceptions and requirements for masking as those pertaining to office settings), so long as the operator of the facility controls access

The Public Health Order contains many other provisions, including but not limited to those governing workers in high-risk settings, school settings, and museums and galleries.

Q.  Does San Francisco have paid COVID-19 sick leave?

A.  Yes.  On February 22, 2022, the San Francisco Office of Labor Standards Enforcement (OLSE) issued a temporary update to its guidance regarding its Paid Sick Leave Ordinance (PSL).

Q.  Does it apply to all employers?

A.  Yes, it applies to any employer with employees, including temporary and part-time employees, who perform work in San Francisco, regardless of the number of hours worked or where the employer is located.

Q.  When does it take effect?

A.  The most recent guidance supersedes the OLSE’s March 24, 2020 guidance, issued near the start of the COVID-19 pandemic and will remain in remain in effect during the COVID-19 public health emergency.

Q.  May an employer ask for a doctor’s note to substantiate a need for PSL due to COVID-19.

A.  Only if the employee claims to need PSL due to COVID-19 for more than 5 days.  For up to five days, an employee’s attestation of their need for PSL pursuant to current CDC guidelines is sufficient.  Employers have some protection and may require a doctor’s note in cases where there is a pattern or clear instance of abuse of PSL.

Q.  What are the reasons an employee may seek PSL related to COVID-19?

A.  The reasons largely overlap with California’s Supplemental COVID Paid Sick Leave law) and include:

  • Isolation or quarantine at the recommendation of a public health official or healthcare provider;
  • A COVID-19 vaccination appointment or vaccination side effects;
  • Permanent or temporary cease of business operations in response to a public health or other public official’s recommendation or order;
  • Care for a family member to attend a COVID-19 vaccination appointment, who is experiencing vaccination side effects, or who is not sick but who public health officials or healthcare providers have required or recommended isolate or quarantine; or
  • Care for a family member whose school, childcare provider, senior care provider or work temporarily ceases operations in response to a public health or other public official’s recommendation.


EXPOSURE TO COVID-19 ISSUES

Q.  What if an employee refuses to work because of fear of contracting the virus?

A.  Fear alone is not a reason to refuse to come to work if the employee works for an essential business that is exempt from any applicable shelter in place order. However, please remember that if the employee is in a high risk group that has been advised/directed to isolate at home, and/or has other circumstances that qualify for paid sick leave, accommodation may be required.  Additionally, even with essential businesses, employees are supposed to be encouraged and permitted to work from home to the extent practicable.  Additionally, be mindful of avoiding the possibility of a retaliation claim in circumstances where an employee refuses to work because of a reasonable belief that doing so would place the employee in danger of death or serious injury.

Q.  Can I refuse to let an employee work after the employee traveled to a COVID-19 hotspot or was exposed to the virus, for 14 days, provided the employee remains symptom-free?

A.  Maybe.  CDC guidance, effective May 13, 2021, provides that fully-vaccinated travelers do not need to self-quarantine in the United States following international travel.

An employee who poses a direct threat to the workplace based on objective, factual information, not on subjective perceptions or irrational fears, will not be subject to ADA protection.  Therefore, as long as up to date CDC Travel Advisories, or similar government information, provide the basis for the concern, not an employee’s national origin, an employer may rely on that guidance as objective to make reasonable assessments of conditions in their workplace.

Employers may have compelling business reasons, such as the safety of its employees or customers, to prefer an employee take time off or work remotely following an employee’s travel to an area with a widespread or ongoing community spread or exposure to the virus.  Concerns such as these are particularly common for employers in the health care industry when employees have direct patient contact.

Q.  What precautions does the CDC require for employees who had potential exposure?

A.  There are several steps employers should take to ensure that the employee with potential exposure does not have COVID-19 or spread it further:

  1. Temperature checks, ideally, occur before entering the facility and should be taken along with an assessment of symptoms prior to the start of work.
  2. Employees should be directed to self-monitor under the supervision on the Company’s health officer.
  3. Common office areas, bathrooms, offices and shared electronic equipment should be cleaned and disinfected routinely.

According to the CDC, fully vaccinated people with no COVID-like symptoms do not need to quarantine, be restricted from work, or be tested following an exposure to someone with suspected or confirmed COVID-19, as their risk of infection is low.  However, California and local rules may require other actions.  And, fully vaccinated persons should monitor for symptoms of COVID-19 for 14 days following an exposure.

Q.  What does potential exposure mean? 

A.  An employee obtains potential exposure if they are in household or close contact for a total of 15 minutes in a 24-hour period of an individual confirmed or suspected of COVID-19, including contact for the period of 48 hours before the COVID-19 positive person became symptomatic.

Q.  What is “Close Contact” exposure with a COVID+ employee?

A.  The most recent CDC definition of “Close Contact” expands the universe of potential work place Close Contacts of COVID+ employees who will need to quarantine.  The CDC now defines “Close Contact” as someone within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset or 2 days prior to the taking of the COVID+ test until the time the COVID+ person is isolated.

The CDC has also published additional factors to consider, including proximity, duration, symptomatic persons, respiratory aerosols (whether the employee was coughing/sneezing) and other environmental factors such as crowding, and adequacy of ventilation.  If the cumulative time is not 15 minutes but other factors exist, consider making the conservative determination that such person should be quarantined as a Close Contact.

California’s CDPH (which Cal/OSHA requires in the workplace, eliminates the 6 foot proximity in many areas and defines “close contact” as "someone sharing the same indoor airspace, e.g., home, clinic waiting room, airplane etc., for a cumulative total of 15 minutes or more over a 24-hour period (for example, three individual 5-minute exposures for a total of 15 minutes) during an infected person's infectious period."

Q.  What does that mean, practically speaking?

A.  After an employer learns an employee tested positive for COVID, the employer should determine whether any co-workers were in the same shared airspace for a combined total of 15 minutes in any 24-hour period for the two days before the COVID+ employee started showing symptoms or an employee with no symptoms took a COVID test that turned out positive.  To determine whether there were employees in Close Contact, talk to the COVID+ employee, look over scheduling records, time logs and attendance records, as well as video tape or other resources to analyze whether employees were in Close Contact with the infected person.

“Close contact” in California, effective October 15, 2022, is defined as either:

  • Sharing the same airspace as an infected person for a total of 15 minutes or more in a 24-hour period inside an indoor space of 400,000 or fewer cubic feet per floor (such as a home, clinic waiting room, airplane, etc.) is now a “close contact”, or
  • In larger indoor spaces (more than 400,000 cubic feet per floor, such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), “close contact” is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period.

Indoor offices or spaces that are separated by floor-to-ceiling walls (e.g., single offices, suites, rooms, waiting areas, bathrooms, or break or eating areas) are considered distinct indoor airspaces are most likely under 400,000 cubic feet.

A person is considered infected within the “Infectious Period” which is defined as:

  • For symptomatic infected persons, 2 days before the infected person had any symptoms through Day 10 after symptoms first appeared (or through Days 5–10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, or
  • For asymptomatic infected persons, 2 days before the positive specimen collection date through Day 10 after positive specimen collection date (or through Days 5–10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.

For clarity, any infected person who tests negative on or after Day 5 and ends isolation is not considered to be within the infectious period and will not cause a “Close Contact” or exposure notice to be initiated.

On August 11, 2022, the CDC updated its guidelines to provide new guidance following exposure to COVID regardless of vaccination status:

  • Persons testing positive for COVID-19 should stay home for at least 5 days and isolate from others in the home.  If they must be around others, they should wear a high-quality mask.
    • If after 5 days, the person is fever free for 24 hours without the use of medication, and symptoms are improving, or the person never had symptoms, isolation may end after day 5.
    • Such persons should wear a high-quality mask through day 10.

However, California and local rules may require other actions.  And, fully vaccinated persons should monitor for symptoms of COVID-19 for 14 days following an exposure.

Moreover, all persons who test COVID+, regardless of vaccination status, must

  • Stay home for 5 days,
  • If they have no symptoms or symptoms resolve after 5 days, they can leave isolation and must continue to wear a mask around others for 5 additional days.
  • If they have a fever, they must continue to isolate until the fever resolves.

However, this guidance will not apply to state and local health orders that are more restrictive.  Therefore, if your workplace is within a county that has a longer quarantine period, the local health order will control. 

Cal/OSHA requires employers to offer testing during paid time, at no cost, to any employee who experienced a close contact which occurred in the workplace with exceptions for fully vaccinated employees before the close contact who have no symptoms and for employees who had COVID, returned to work after the end of the required exclusion period, and have had no symptoms since returning all within the 90 days after the employee’s original onset of symptoms or, if the recovered COVID-19 case never developed symptoms, 90 days following the first positive test.  Employers are to exclude from the workplace employees who test positive for COVID-19.

And, exclude employees after a COVID-19 close contact, unless they were fully vaccinated before the close contact, or recently recovered from COVID-19 as described above, and do not show any symptoms of COVID-19. 

Q.  Can I require an employee to submit a doctor’s note before returning to work after exhibiting symptoms of the coronavirus or being quarantined?

A.  Not automatically in California.  While certification of fitness for duty has traditionally been accepted, and the EEOC notes that employers should accept clinics' confirmations, forms and/or emails due to the crowded schedules of the doctors and other health care professionals, Cal/OSHA's ETS indicates that if employees are excluded from the workplace for the quarantine period a negative test is not required to return to work.

Cal/OSHA/WORKPLACE SAFETY/WORKERS' COMPENSATION

COVID-19 Emergency Regulations

Q.  I am a small employer, do Cal/OSHA’s COVID-19 emergency regulations apply to my business?

A.  Probably.  The Emergency Regulations apply to all places of employment in California with the exception of (1) employment with only one employee who does not have contact with other persons; (2) employees working from home; and (3) an exception for hospitals and other healthcare-related facilities covered by the Aerosol Transmissible Diseases (ATD) Standard.

Q.  When do the emergency regulations take effect?

A.  The emergency regulations originally took effect on November 30, 2020 and were most recently updated on April 21, 2022 to remain in effect to December 31, 2022.  https://www.dir.ca.gov/OSHSB/documents/Apr212022-COVID-19-Prevention-Emergency-txtcourtesy-3rd-Readoption.pdf

Q.  Has Cal/OSHA issued any guidance on the emergency regulations ("ERs")?

A.  Yes.  On January 12, 2022, Cal/OSHA updated their Frequently Asked Questions (FAQs), found here.  New guidance is expected soon following the extension and amendment to the ERs on April 21, 2022. As a result, the ERs will remain in effect through December 31, 2022.

Q.  How are the new COVID-19 ERs different than prior guidance issued by Cal/OSHA?

A.  The primary changes relate to:

The ERs contain requirements for testing and notifying public health departments of workplace outbreaks (three or more cases in a workplace in a 14-day period) and major outbreaks (20 or more cases within a 30-day period).  See Section 3205.1 (Multiple COVID-19 Infections and COVID-19 Outbreaks and 3205.2 (Major COVID-19 Outbreaks).  And, there are new requirements for infection prevention in employer-provided housing and transportation to and from work are included under Sections 3205.3 and 3205.4.

Cal/OSHA's website on various precautions to take regarding COVID-19 is found HERE.   Additionally, Cal/OSHA, in consultation with CDPH, issued various industry-specific guidelines, found HERE

Cal/OSHA requires:

  • Face coverings and respirators, other than those used for accommodation purposes, must be made of a material of at least two layers and will be required when ordered by the CDPH.
  • Employers need to document vaccination status.
  • In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
  • Following a close contact, all employees, including fully vaccinated employees without symptoms should be tested at employer expense and provide testing for employees with COVID-19 symptoms, regardless of vaccination status. 
  • Required COVID-19 testing cannot be self-administered and self-read unless the testing is observed by the employer or an authorized proctor. 
  • All COVID-19+ employees and, if required by CDPH orders - employees following close contact, are subject to the same isolation and return to work requirements, regardless of vaccination status or prior infection and must isolate for at least 5 days, returning after day 5 only if symptoms are not present or are resolving, at least 24 hours where any fever is less than 100.4 without fever reducing medication, and the employee tests negative on day 5 or later. Absent a negative test, the employee’s isolation ends after day 10.
  • Employees that return must wear a well-fitting mask around others for a total of ten days after testing COVID+ or first symptoms.
  • Fully-vaccinated employees must quarantine under the same guidelines as someone who is not vaccinated.
  • Testing to return to work may be self-administered and self-read if another means of independent verification is provided.  
  • In the event of an “outbreak” in a workplace, all employees, regardless of vaccination status should be tested at employer expense.
  • Employers must provide all employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request.
  • Employers may not retaliate against employees for wearing face coverings.
  • There are no longer physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
  • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
  • Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed groups of employees)
  • No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.
  • Employers must follow CDPH and local health department orders regarding face coverings in relation to on-the-job vehicle use.

  • Employers must evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency, and evaluate the use of additional air cleaning systems.

The amended ERs continue to require a written COVID-19 Prevention Plan (click HERE for a link to Cal/OSHA's Model COVID-19 Prevention Program template) that addresses the following:

  • System for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
  • Identification and evaluation of hazards - including employee input into screening, identifying workplace conditions and practices to avoid potential exposure to COVID-19.
  • Investigating and responding to cases in the workplace - responding immediately to potential exposures by following steps to determine potential exposure, providing notice to employees, and offering testings to workers who may have been exposed.
  • Correcting COVID-19 hazards - including correcting unsafe conditions and work practices and providing effective training and instruction.
  • Providing face coverings and respirators to employees, upon request.
  • Adopting site-specific strategies such as changes to the workplace and work schedules, cleaning and disinfecting commonly touched surfaces, evaluating proper handwashing facilities, encouraging handwashing, providing hand sanitizers; and evaluating whether personal protective equipment is required to prevent exposure to the virus.
  • Positive COVID-19 case and illness recording requirements and making the COVID-19 Prevention Plan accessible to employees and employee representatives.
  • Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
  • Specific criteria that must be met for employees to return to work after recovering from COVID-19, including those that tested positive but did not develop symptoms.

Q.  What should an employer do to document employees' vaccination status?

A.  Cal/OSHA does not specify a single required procedure but tells employers to record the vaccination status for employees to determine which employees may not wear face coverings indoor.  These records should be kept confidential.  Employers may ask employees to:

  • An employer should direct employees to provide no medical or other personal information when the employees verify their vaccination status.
  • Nothing in the revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.
  • Provide proof of vaccination.  The employer maintains a record of the employees who presented proof, but not the vaccine record itself. 
  • Provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
  • Self-attest to vaccination status and employer maintains a record of who self-attests.

Q.  What if an employee will NOT state their vaccination status?

A.  In a vaccination-optional employment setting, an employer is not obligated to require employees to submit proof of being fully-vaccinated and employees have the right to decline to state if they are vaccinated or not.  Such employees should be treated as unvaccinated and the employer may not take disciplinary or discriminatory action against the employee.

Q.  Does an employer need to purchase respirators?

A.  Yes.  An employer must provide respirators (N95, KN95 or N94) to employees who request one, and (2) if there is a major outbreak, to any employees in the exposed group for voluntary use.  The respirator must be the right size, and the employee must receive basic instruction on how to get a good "seal," or fit.

Q.  Do the ERs cover all California employees?

A.  Most employees.  The ERs do not apply to employees working from home, a workplace with a single employee who does not have contact with other people or employees covered by the Aerosol Transmissible Disease regulations.  Title 8, section 5199.

Q.  Will an employer be subject to Cal/OSHA issues if an employee is offered a COVID test but refuses to take the test?

A.  No.  Nor is the employer required to obtain a signed declination from employees who refuse to take a COVID-19 test offered by the employer.

Q.  What can an employer do to reduce the number of employees who might be “close contacts” if one employee tests positive for COVID?

A.  An employer may assign employees to specific and separate workspaces, even within the same building.  An employer may divide a workforce into cohorts or teams assigned to specific locations.  And, with disinfection between non-overlapping shits, each shift may be considered a separate “workplace” in the event of an exposure.

Q.  What is “Exclusion Pay” under the ERs?

A.  Employers must continue to provide employee’s pay and benefits (“Exclusion Pay”), and may offset payments by any amount that the employee received in other benefits such as unemployment or disability payments if an employee who is able and otherwise available to work is excluded from the workplace, for example, because the employee was in close contact with a co-employee while at work.  An employer may require the use of 2022 COVID-19 Supplemental Paid Sick Leave before providing Exclusion Pay.  Fully vaccinated employees, in most cases, will not need to quarantine and, therefore, will not be eligible for Exclusion Pay. 

Q.  Are there are any set-offs that an employer may make against the exclusion pay?

A.  The guidance states that employers may offset payments by any amount that the employee received in other benefits such as unemployment or disability payments.  Currently, there is no guidance as to how to measure pay based on scheduling and/or employment history.

Q.  Do the ERs provide for sick leave benefits under Exclusion Pay?

A.  Yes, an employer may require the employee to exhaust paid sick leave benefits that exceed mandatory Paid Sick Leave under California law before providing exclusion pay, to the extent permitted by law.

Q.  Does Exclusion Pay apply to employees with COVID-19 symptoms?

A.  No.  The ERs state that an employee unable to work because of his or her COVID-19 symptoms would not be eligible for exclusion pay and benefits. But that employee, may be eligible for Workers’ Compensation or State Disability Insurance benefits and 2022 COVID-19 Supplemental Paid Sick Leave.

Q.  Does an employer have to provide Exclusion Pay for any employee exposed to COVID outside the workplace?

A.  No, but such employees likely qualify for 2022 COVID-19 Supplemental Paid Sick Leave.  

Q.  Are there any waivers to the ERs?

A.  Yes.  Cal/OSHA permits an employer to seek a waiver of the requirement to quarantine or isolate COVID+ or “close contacts”, if doing so creates an undue risk to public health and safety. To qualify for a waiver, an employer must fit into a very narrow operation that provides goods or services, the interruption of which would cause an undue risk to a community’s health and safety.

Q.  How do I seek a waiver?

A.  Request a waiver from Cal/OSHA by email  to rs@dir.co.gov, or, in case of an emergency by calling the local district office for a provisional waiver.  While there are no set criteria, Cal/OSHA suggests providing:

  • Employer name;
  • Point-of-contact name, address, email and phone number;
  • Statement that there are no local or state health officer orders for isolation or quarantine of the excluded employees;
  • Statement describing the way(s) in which excluding the exposed or COVID-19 positive employees from the workplace impacts the employer’s operation in a way that creates an undue risk to the community’s health and safety; a. Number of employees required to be quarantined under the ERs, and whether each was exposed to COVID-19 or tested positive for COVID-19;
  • The employer’s control measures to prevent transmission of COVID-19 in the workplace if the employee(s) return or continue to work in the workplace, including the prevention of further exposures. These include measures such as isolating the returned employee(s) at the workplace, use of respiratory protection by other employees in the exposed workplace, or other equally effective measures.

Q.  How will the ERs be enforced?

A.  The ERs will be enforced through citations and, potentially, monetary penalties.  Cal/OSHA reports that it will take into account an employer’s good faith efforts at compliance.  Any potential leniency will not apply where an employer fails or refuses to abate a violation of the ERs that Cal/OSHA identified to the employer.

Q.  Where can I find information about COVID-19 testing locations?

A.  Cal/OSHA refers to the CDPH and National Association of County and City Health Officials websites, for scheduling tests.

Q.  I have a large number of employees that need to be tested, can I arrange for testing on-site at my facility?

A.  Yes.  On-site testing may be provided by a qualified medical provider. Cal/OSHA refers to the Valencia Branch Laboratory (VBL) to potentially partner with for on-site testing.  Be aware that setting up a testing site set up requires approximately 2-3 weeks. The VBL website is located here.

Q.  Why should I care about the new COVID-19 ERs?  Hasn’t Cal/OSHA already cited employers before these new regulations?

A.  Prior to the ERs, enforcement of safety standards concerning COVID-19 was not well defined as enforcement fell under the general guidelines issued by Cal/OSHA, not specific regulations.  Thus, most citations were limited to violations of the Injury and Illness Prevention Program (IIPP) regulation.  As IIPP is a performance standard that allows for flexibility from workplace to workplace, it is difficult to cite for enforcement purposes.

Cal/OSHA’s ability to easily establish a violation will increase citation frequency.  Employers should invest time and update their written COVID-19 Prevention Plan to promptly comply with the new regulations.

Q.  Have any prior reporting requirements to Cal/OSHA changed due to the new ERs?

A.  No.  Per section 3205(c)(9), the employer shall report immediately to the Division any COVID-19-related serious illness or death.  Serious injury is defined under section 330(h).  The regulations do contain an additional requirement to keep a record of and track all COVID-19 cases, with the employee’s name, contact information, occupation, location where worked, last day at the workplace, and date of the COVID+ test.  Medical information must be kept confidential.

Note that recording work-related injuries and illnesses on Form 300 is a separate requirement and is not impacted by the ERs.

Other Workers' Compensation and Cal/OSHA-Related Information

Q.  What other reporting obligations related to COVID-19 exist?

A.  SB-1159, signed by Governor Newsom on September 17, 2020, codifies and modified the Governor’s May 7, 2020, Executive Order into Labor Code sections 3212.86, 3212.87, and 3212.88 to address Workers’ Compensation presumptions about COVID contracted in the workplace.  Click here for the link to the text of the Code.  The new labor code sections distinguish between COVID+ cases that arose March 19, 2020, and July 5, 2020, and those diagnosed after July 6, 2020. 

Q.  How does it apply to employees diagnosed with COVID after July 5, 2020?

A.  The new law creates two different categories with slightly different rules. 

First, Section 3212.87 provides the presumption of compensable injury to specific first responders and health care professionals identified in the code.  It applies to these workers if they test positive on or after July 6, 2020, and within 14 days after their last day of work.  Testing must be under a PCR test and does not include employees working from home, except for providers of home supportive services.   Here, an employer has 30 days after the claim is made to accept or deny the claim.  If the claim is not denied, the presumption of industrial injury is only rebuttable by evidence discovered after the initial 30-day period.

Second, Section 3212.88 applies to all other employees who test positive during an outbreak at the employee’s specific place of employment after July 5, 2020, where the employer has 5 or more employees.  An outbreak is defined for employers with 100 or fewer employees as 4 employees testing positive with PCR tests within a 14 day period, or for employers with more than 100 employees, 4 percent of the employees testing positive.  Also, an outbreak is deemed to have occurred if the employer is closed by a local health department, OSHA, or school superintendent due to the risk of COVID-19 infection.  For these employees, the employer has 45 days to determine compensability from the date of the claim.  If the claim is denied or no decision is made timely, the presumption is disputable by evidence that may include an employers' efforts to reduce potential workplace transmission and evidence of an employee’s non-occupational risks of COVID-19 infection, ie. an employees' activities outside the workplace.”          

Q.  Does an employer need to do anything else?

A.  YES!   The new law imposes additional, important notice requirements with accompanying potential civil penalties.  Employers must report to their carrier within three days of learning that an employee tested COVID+ (excluding personally identifying information), the date of the test, the place where the employee worked during the 14 days prior to the test and the number of employee at each place where the employee worked for the prior 45 days.

In addition, all employers with 5 or more employees have 30 days after the effective date of the law to provide their workers’ compensation carrier with the above information pertaining to all employees who tested COVID+ since July 6, 2020. 

Q.  If an employee tests positive for COVID-19, do I need to record it on my company’s Form 300?

A.  It depends.  Exemptions exist for small employers (10 or fewer employees) and those in certain industries.  Click here and here for more information. 

Otherwise, employers must record instances of employee workplace illness when it is “new” (i.e., employee did not experience before or, if they did, the employee completely recovered), “work-related,” and meets one or more of the following “general recording” criteria:

(8 CCR 14300.7(b) – General Recording Criteria)

  • death;
  • one or more days away from work;
  • restricted work or transfer to another job;
  • medical treatment beyond first aid;
  • loss of consciousness; or
  • a significant injury or illness diagnosed by a physician or other licensed health care professional

Q.  What exactly is a work-related injury or illness?

A.  An injury or illness is considered “work-related” when “an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness.  Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment unless an exception in Section 14300.5(b)(2) specifically applies.”  8 CCR 14300.5(a).

Cal/OSHA provides the following guidance “when it is not obvious” whether the exposure occurred in the work environment.

“In these situations, you must evaluate the employee's work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.”  8 CCR 14300.5(b)(3)(emphasis added).

Q.  If an employee exhibits symptoms of COVID-19 at work, do I have to report it to Cal/OSHA?

A.  Again, it depends.  Cal/OSHA requires employers to immediately report a “serious injury or illness.”  A “serious injury or illness” is one that occurs “in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing, or in which an employee suffers an amputation, the loss of an eye, or any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by an accident on a public street or highway unless the accident occurred in a construction zone.”  8 CCR 330(h).

Therefore, if an employee falls ill during work (for whatever reason, including possible exposure to COVID-19) and is admitted as an inpatient to a hospital for anything other than medical observation or diagnostic testing, it needs to be reported.

The report must be made “immediately,” which means as soon as practical but not longer than 8 hours after the employer knows or with diligent inquiry would have known of the death or serious injury or illness.

Q.  What if an employee does not exhibit symptoms of COVID-19 at work, but I later learn that the employee tested positive?  Assuming the employee requires hospitalization, how do I determine if I need to report the illness to Cal/OSHA?

A.  Cal/OSHA realizes that it may be difficult to assess whether a COVID-19 infection actually “occurred in connection with employment.” 

The employer should consider the following factors when making its determination to report or not:

Cal/OSHA takes the position that the employer should err on the side of caution and favor reporting, even when there is uncertainty about whether COVID-19 was contracted at work (see BOLD text below): 

“Even if an employer cannot confirm that the employee contracted COVID-19 at work, the employer should report the illness to Cal/OSHA if it results in in-patient hospitalization for treatment and if there is substantial reason to believe that the employee was exposed in their work environment.  Where there is uncertainty about whether an employee contracted COVID-19 at work, the employer should err on the side of reporting the illness to Cal/OSHA.

For more information, refer to the Cal/OSHA (FAQ) on Recording and Reporting Requirements for COVID-19 cases.  https://www.dir.ca.gov/dosh/coronavirus/Reporting-Requirements-COVID-19.htm

Q.  Does OSHA offer any other FAQs that help address worker safety in response to COVID-19?

A.  Federal OSHA (a.k.a. “Fed/OSHA”) published a Frequently Asked Question page for COVID-19, found here: https://www.osha.gov/SLTC/covid-19/covid-19-faq.html

The FAQ provides useful, general information regarding COVID-19, such as cleaning, disinfecting, precautions to take to protect workers from COVID-19, Fed/OSHA’s policy generally encouraging the use of face masks at work, etc.  The FAQ also contains many convenient links to pertinent sections of the CDC website. 

Fed/OSHA published additional recommendations that can be found here.  

Of note, is Fed/OSHA’s recommendation, based on CDC guidance, not to distinguish safety protocols for workers who are vaccinated from those where are not vaccinated.  Fed/OSHA advises that vaccinated workers should continue to follow protective measures, such as wearing facial coverings and remaining physically distant, because there is not sufficient evidence that vaccines prevent transmission of COVID-19 from person to person. 

While this information is generally useful and should serve as a resource, employers need to remember that when conducting business in California, Cal/OSHA standards (not federal), will generally apply.  (There are some exceptions to Cal/OSHA jurisdiction, such as maritime employment, national parks, and Native American tribal lands, to name a few.)  Therefore, to the extent Fed/OSHA guidance differs from that issued by Cal/OSHA, California employers need to follow Cal/OSHA guidance.

IMMIGRATION

Q.  If my H1-B employees or their spouse traveled to a country on the CDC COVID-19 travel advisory list, are they allowed to come to work?

A.  H1-B employees should be treated in the same manner as your other employees to protect your workplace.

Q.  If my H1-B employee cannot work due to the employee being quarantined due to COVID-19, am I required to pay that employee?

A.  Yes, even if similarly situated US workers are not paid.

Q.  If my H1-B employee cannot work due to the employee being self-quarantined due to COVID-19, am I required to pay that employee?

A.  Yes.  See the answer above.

Q.  If my H1-B employee cannot work due to child-care issues because the employee’s kids’ school has closed due to the COVID-19 crisis, am I required to pay that employee?

A.  No, so long as the H1-B employee requests unpaid leave and cites a non-work-related reason.

Q.  If I have to lay off, reduce the hours or furlough my H1-B employees, are they eligible for any Unemployment Insurance?

A.  No.  Nonimmigrant workers including H1-Bs are not eligible for unemployment benefits.  Non-immigrant are generally disqualified for most governmental benefits and become deportable/inadmissible if they are granted certain benefits.

Q.  If I terminate my H1-B employees due to government orders or lack of work due to COVID-19, will I be able to bring them back when things improve?

A.  Maybe – A terminated H1-B worker has 60 days to find another job or leave the country, so that employee might not be around to rehire.  Terminating the H1- employee requires the employer to pay the cost of a one-way plane ticket back to his/her home country.  Additionally, terminating an H1-B employee requires giving notice to DHS, and incurring the expense and risk of denial of filing a new petition for the employee to be rehired.

CALIFORNIA WARN AND FEDERAL WARN

If a business is closing, laying off, or furloughing a large number of employees, consult with counsel as the facts of each situation are different depending on your circumstances.

CAL-WARN

Q.  What is Cal-WARN?

A.  Cal-WARN is California’s version of the WARN Act.  California law requires employers to give employees advance notice of any mass layoff, relocation, or termination.  Under CA state law, a mass layoff is a layoff during any 30-day period of 50 or more full or part-time employees at a facility or part thereof that employs or has employed 75 persons within the preceding 12 months.  Relocation is the removal of all or substantially all industrial or commercial operations to a location that is 100 miles or more away.  Termination means ending or substantially ending industrial or commercial operations.

Q.  Tomorrow, I have to lay off at least 50 employees from one location due to COVID-19, do I need to give out a Cal-WARN Act notice?

A.  If you had 75 or more employees at the facility where you plan to lay-off 50 or more employees, you must give California WARN notice in line with Governor Newsom’s March 17, 2020 Executive Order (“EO”), which suspends the 60 days’ advanced notice but adds requirements to the notice.  A lack of compliance with the notice may create significant exposure.  For more information visit:  https://www.callaborlaw.com/entry/california-governor-issues-order-relaxing-notice-requirements-under-cal-warn-for-coronavirus-related-layoffs.

Q.  I am considering a two or three-week furlough of at least 50 employees, do I need to give out a Cal-WARN notice?

A.  Yes.  Even though a furlough is temporary, the employees are still separated from their positions and a  Cal-WARN notice serves to alert government officials to an unemployment situation.  For more information visit: https://www.callaborlaw.com/entry/considerations-for-businesses-contemplating-temporary-furloughs.

Q.  I am considering reducing employee hours for a relatively short two to three-week period of time, does it need to give out a Cal-WARN notice?

A.  No, Cal-WARN also does not specifically require notice for a reduction in employee hours, however, your employees may qualify for unemployment insurance benefits when hours are reduced.  Also, be aware that salary reductions tied to hours worked may destroy the employee’s exempt status, and exempt employees generally must be paid their full salary for a workweek in which they perform any work.  For more information visit: https://www.callaborlaw.com/entry/considerations-for-businesses-contemplating-temporary-furloughs.

Q.  How and when do I deliver the Cal-WARN Act notice?

A.  The EO suspends the 60-day requirement for advanced notice, so employers must give as much notice as possible.

First-class mail, personal delivery, or insert into pay envelopes.

Notice to the EDD may be effected via email at eddwarnnotice.edd.ca.gov.  To avoid the risk that the EDD will not be able to open an email attachment, the notice may be in the body of the email.  Likewise, employer’s contact information should be in the body of the email to permit the EDD to contact the employer regarding a faulty attachment.

Notice to the Local Workforce Development Areas administrators should be sent to the address indicated for your geographic area.  For more information visit: https://www.edd.ca.gov/Jobs_and_Training/Local_Area_Listing_by_County.htm.

Chief elected official.  Local Workforce Development area administrators assist employers with contacting the chief elected officials in the communities affected by the planned layoff or closing.

Q.  Last week, I laid off at least 50 employees from one location due to COVID-19, do I need to give out a Cal-WARN notice?

A.  Yes, a notice to the employees is in order, as the EO is retroactive to March 4, 2020.  The notice triggers other government resources intended to help the employers and the employees.  For more information visit: https://www.callaborlaw.com/entry/california-governor-issues-order-relaxing-notice-requirements-under-cal-warn-for-coronavirus-related-layoffs.

Federal WARN

Q.  What is Federal WARN?

A.  The Federal WARN Act requires companies to give employees advance notice if the employers is closing a plant or conducting a mass layoff.  The Federal WARN Act only covers employers with 100 or more employees.  A temporary or permanent plant closure is the shutdown of a single site of employment or one or more facilities or units within a single site of employment, if the shutdown results in an employment loss for 50 or more employees during any 30-day period.  A mass layoff is a reduction in force that is not a plant closure but results in loss of employment at any single site during any 30-day period of: (1) at least 33% of full-time employees and at least 50 or more full-time employees; or (2) at least 500 full-time employees.

Q.  Tomorrow, I have to lay off or furlough at least 50 employees from one location due to COVID-19, do I need to give out a federal WARN Act notice?

A.  Unless the furlough or layoff is for a period of less than six months, you must give federal WARN Act notice:

  • If you have 100 or more full-time employees that worked 6 or more of the last 12 months, if a plant closing affects 50 or more employees during any 30-day period; or
  • If a "mass layoff" results in an employment loss for either 500 or more employees or 50-499 employees that makeup at least 33% of the employers active workforce; or, potentially
  • If the number of layoffs/furloughs reaches the threshold level during any 90-day period.

Q.  Does Federal WARN have any exceptions?

A.  Yes, there are exceptions for unforeseen circumstances and natural disasters that require as much notice as is practical.  While one or both exceptions likely apply to the COVID-19 pandemic, be sure to consult with counsel about your specific situation.

Q.  I am considering reducing employee hours for a relatively short two to three-week period of time, do I need to give out a Federal WARN notice?

A.  No, a short-term reduction in hours does not trigger any notice requirements under the federal WARN Act, your employees may qualify for unemployment insurance benefits when hours are reduced.  Also, be aware that salary reduction that is tied to hours worked may destroy the employee’s exempt status, and exempt employees generally must be paid their full salary for a workweek in which they perform any work.  For more information visit: https://www.callaborlaw.com/entry/considerations-for-businesses-contemplating-temporary-furloughs.

Q.  How and when do I deliver the federal WARN Act notice?

A.  While notice must be delivered 60 days before a plant closing, mass layoff or relocation, federal WARN forgives the notice requirement if there is a natural disaster or unforeseen business circumstances, in which case notice must be as soon as possible as follows:

  • First-class mail, personal delivery, or insert into pay envelopes.
  • Notice to the EDD may be effected via email.
  • Notice to the chief elected official:  The Local Workforce Development area administrators that correspond to the location of the layoff, provided in the link, will assist with this notice.

HELPFUL LINKS FOR EMPLOYERS

CDF provides links to help navigate government information, resources, and programs:

California

California – California Coronavirus (COVID-19) Response:  https://covid19.ca.gov/

California Department of Public Health (CDPH) – COVID-19 Update: CDPH’s updates and guidance on how to prevent and contain transmission of COVID-19 in the workplace.  https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Immunization/ncov2019.aspx

Labor & Workforce Development Agency (LWDA):  The LWDA is California’s cabinet-level agency to coordinate California’s workforce programs.  The LWDA’s webpage provides employee-focused information summarizing many of California’s benefits and information for employees impacted by COVID-19.  https://www.labor.ca.gov/coronavirus2019/

California Employment Development Department (EDD) – Coronavirus: https://edd.ca.gov/about_edd/coronavirus-2019.htm

California Unemployment Insurance: Employees may be eligible for partial wage replacement due to wage losses caused by COVID-19 ranging from $40 to $450 per week.  https://www.edd.ca.gov/Unemployment/Filing_a_Claim.htm

California Unemployment Insurance Work Sharing Program: Employers may participate in California’s Work Sharing Program.  https://www.edd.ca.gov/Unemployment/Work_Sharing_Program.htm

Labor & Workforce Development Agency (LWDA): The LWDA developed a webpage to make it easier and spread awareness through a centralized source of information. https://www.labor.ca.gov/coronavirus2019/

Payroll Tax Deadline Extension:  Governor Gavin Newsom's Executive Order N-25-20 provides employers up to a 60-day extension to file payroll reports and/or deposit state payroll taxes, without penalty or interest. https://www.edd.ca.gov/Payroll_Taxes/Emergency_and_Disaster_Assistance_for_Employers.htm

Federal

America's Job Center of California Rapid Response Services: The federal Rapid Response service under America's Job Center of California ("AJCC") is a resource for employers facing layoffs or with a need to access a skilled labor pool.  https://www.careeronestop.org/BusinessCenter/TrainAndRetain/ManageAndRetainEmployees/layoff-resources.aspx

Center for Disease Control (CDC) – Employer Resource Page:  The CDC has a resource page for employers for planning, preparing, and responding to COVID-19.  This includes cleaning and disinfection recommendations and how to reduce employee transmission.  https://www.cdc.gov/coronavirus/2019-nCoV/index.html. For information on CDC’s Travel page, visit:  https://www.cdc.gov/coronavirus/2019-ncov/travelers/index.html

HIPAA Privacy and the Coronavirus:  The Office for Civil Rights (OCR) at the U.S. and Human Services (HHS) posted a bulletin to provide notice related to sharing patient information under the HIPAA Privacy Rule due to the outbreak of infectious disease or other emergency situation.  Privacy Rule protections are not set aside during an emergency.  https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf

U.S. Department of Labor (DOL):  DOL provides information for employers responding to the COVID-19 pandemic, including guidance on the Families First Response Act related to Employee Paid Leave, the FLSA, and the FMLA.  https://www.dol.gov/agencies/whd/pandemic

U.S. Equal Employment Opportunity Commission (EEOC):  EEOC guidance as to the intersection of COVID-19 with ADA rights.  https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

U.S. Occupational Safety and Health Administration (OSHA):  OSHA’s guidance to workplace preparations for COVID-19.  https://www.osha.gov/Publications/OSHA3990.pdf

U.S. Small Business Administration Disaster Loan Assistance:  Employers seeking loans due to COVID-19 impact may find application information from the small Business Administration (SBA).  https://www.sba.gov/about-sba/sba-newsroom/press-releases-media-advisories/sba-provide-disaster-assistance-loans-small-businesses-impacted-coronavirus-covid-19

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