[Update: On November 6, 2021, the United States Court of Appeals for the Fifth Circuit blocked the implementation of the OSHA Emergency Temporary Standard (ETS) that would require employers with 100 or more employee to implement a mandatory COVID-19 or weekly testing employees.  Our update on the court’s ruling is here.]

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) issued the Emergency Temporary Standard (ETS) that implements the Biden Administration’s COVID-19 vaccine mandate for large employers: employers with 100 or more employees.  The OSHA ETS will be published in the Federal Register and becomes effective, November 5, 2021.  Employer obligations begin on December 5, 2021.  Below is a brief overview of the OSHA ETS and what this could mean for California employers.

1. OSHA ETS vaccine mandate.

The OSHA ETS required covered employers (employers with 100 or more employees) to ensure all employees have been vaccinated by January 4, 2022.  Employees who have not received all necessary shots to be vaccinated must be tested on at least a weekly basis.  Should an employee test positive, they will need to be removed from the workplace.  All unvaccinated employees are required to wear face masks in the workplace.

2. Employers are required to pay for time for employees to obtain vaccine.

Starting December 5, 2021, employers are required under the ETS to provide “reasonable time” to each employee during work hours for each of their primary vaccination doses.  OSHA’s FAQs state that a “reasonable time” includes up to four hours of paid time, at the employee’s regular rate of pay, for the purposes of vaccination.  OSHA also explains that employers do not need to pay the employee if they obtain the vaccination outside of work hours.

The four hours of paid time that employers must provide for time off to receive the vaccination cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave.

3. Employers are required to pay for time off to recover from vaccine side effects.

If an employee experiences side effects after receiving the vaccination, the employer must pay employees for time off work.  Generally, OSHA presumes employers who provide for up to two days of paid sick leave per primary vaccination dose for side effects, the employer would be in compliance with the requirement to provide a “reasonable cap” on paid time off.  When setting the “reasonable cap,” the employer does not need to account for the possibility of the vaccination resulting in a prolonged illness in the vaccinated employee (e.g., a severe allergic reaction). The reasonable time and paid sick leave that employers are required to pay employees to recover from side effects is in addition to four hours of paid time to receive each primary vaccination dose also required by the standard

For purposes of time off due to side effects of receiving the vaccine, employers can require employee to use accrued paid sick leave.  To the extent employees do not have any accrued paid sick leave, employers cannot require employees to run a negative balance of accrued sick leave for these purposes.  This requirement to pay employees does not apply retroactively for leave taken prior to December 5, 2021.

The OSHA ETS does not require employers to pay for COVID-19 testing.  However, other laws could require employers to pay for this testing – and California employers must approach this issue with caution.

4. Employers must provide employees certain information about COVID-19 vaccinations.

Covered employers must provide each employee, in a language and at a literacy level the employee understands any policies and procedures the employer establishes to implement the ETS. This includes:

    • any employer policies;
    • the process that will be used to determine employee vaccination status, as required;
    • the time and pay/leave they are entitled to for vaccinations and any side effects experienced following vaccinations;
    • the procedures they need to follow to provide notice of a positive COVID-19 test or diagnosis of COVID-19 by a licensed healthcare provider;
    • and the procedures to be used for requesting records.

Employers must provide additional information to unvaccinated employees, including information about the employer’s policies and procedures for COVID-19 testing and face coverings.

In addition, OSHA states that the information provided to employees must address:

  • COVID-19 vaccine efficacy, safety, and the benefits of being vaccinated (by providing the document, “Key Things to Know About COVID-19 Vaccines,” available at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/keythingstoknow.html);
  • the requirements of 29 CFR 1904.35(b)(1)(iv), which prohibits the employer from discharging or in any manner discriminating against an employee for reporting work-related injuries or illness, and Section 11(c) of the OSH Act, which prohibits the employer from discriminating against an employee for exercising rights under, or as a result of actions that are required by, the ETS. Section 11(c) also protects the employee from retaliation for filing an occupational safety or health complaint, reporting a work-related injuries or illness, or otherwise exercising any rights afforded by the OSH Act (fact sheet available in English and Spanish); and
  • the prohibitions of 18 U.S.C. § 1001 and of Section 17(g) of the OSH Act, which provide for criminal penalties associated with knowingly supplying false statements or documentation (fact sheet available in English and Spanish).

5. Does the federal OSHA ETS preempt Cal-OSHA ETS and local county and city vaccine mandates?

OSHA and the White House have been clear that the federal OSHA ETS preempts any state and local laws on the issue.  During a call with reporters on November 3, 2021, a senior administration official stated:

The OSH Act provides that OSHA standards preempt any state occupational safety or health standard “relating to [the same] occupational safety or health issue” as the federal standard OSHA.

This ETS preempts the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19.  Thus, the standard preempts states, and political subdivisions of states, from adopting and enforcing workplace requirements relating to these issues, except under the authority of a federally approved state plan.

However, California employers will need to monitor the response from Cal/OSHA regarding what actions it will take because of the federal OSHA ETS.  The current Cal/OSHA ETS does not require employers of any size to mandate vaccines or require testing for employees who are not vaccinated.  Cal/OSHA could decide to adopt the federal OSHA ETS, or it could adopt a modified version that meets the requirements of the federal OSHA ETS with additional restrictions.  Employers need to monitor Cal/OSHA’s response over the next 30 days.  A collection of articles discussing the Cal/OSHA ETS is available here.   However, employers subject to the federal OSHA ETS should begin steps to comply with these requirements while also ensuring compliance with California’s additional requirements.

Moreover, there is a patchwork of various county and city requirements for vaccine mandates for employers across California.  There is an argument that these local requirements applicable to employers are preempted by the federal OSHA ETS.  However, employers are cautioned to seek legal counsel before deciding not to comply with any requirement from the state of California or a local jurisdiction.

Resources for Employers:

OSHA publish FAQs on the new ETS here.

For some suggestions on developing a mandatory vaccination policy, see our prior post here.

Also, my firm will be conducting a webinar on new laws facing California employers in 2022 on Wednesday, November 17, 2021.  We will be discussing the federal OSHA ETS during the webinar.  Registration for the webinar is here.

Masks. Vaccination. Training. Testing. The recently-revised Cal/OSHA Emergency Temporary Standards (ETS) fundamentally rewrite employer obligations with respect to protecting employees from COVID-19.

But what does the revised ETS say about excluding employees from the workplace over COVID-19 concerns? And what about the controversial pay requirements in the original ETS?

Who Must Be Excluded?

The revised ETS require employers to exclude from the workplace “COVID-19 cases,” which include persons who are positive for COVID-19, either by a test or diagnosis by a licensed health care provider. It also includes persons ordered to isolate by a local or state health official.

The revised ETS also require employers to exclude employees who had a “close contact” with a COVID-19 case, which means being within six feet for a cumulative total of 15 minutes or more in a 24-hour period during the COVID-19 case’s “high-risk exposure period.” This period generally starts two days before the person first developed symptoms, or two days before a positive-test-specimen was collected.

There are two notable exceptions for close-contact exclusion. First, employees who are fully-vaccinated (as documented by the employer) before the close contact do not have to be excluded so long as they do not develop COVID-19 symptoms. Second, employees who were previously excluded from the workplace for testing positive are not subject to close-contact exclusion for a period of 90 days, measured from their prior onset of symptoms or positive test.

How Long Must They Be Excluded?

COVID-positive employees with symptoms can’t return to work until they meet all three of the following criteria: (1) at least 24 hours have passed since a fever (100.4 degrees) has resolved without use of fever-reducing medications; (2) other COVID-19 symptoms have improved; and (3) at least 10 days have passed since COVID-19 symptoms first appeared.

COVID-19 positive employees who are asymptomatic must remain out for at least 10 days since the specimen collection of their first positive test.

Employers are not permitted to require a negative test as an additional requirement to return after the employees meet the above return-to-work criteria.

Close contacts who never develop COVID-19 symptoms may return after 10 days have passed since the close contact.

Close contacts who develop symptoms must either complete the return-to-work requirements described above for symptomatic COVID-positive employees, or alternatively meet the following criteria to return: (1) a negative PCR test taken after the onset of symptoms; (2) at least 10 days have passed since the last known close contact; and (3) symptom-free for at least 24 hours without the use of fever-reducing medication.

There are reduced return-to-work requirements for health care workers, emergency responders, and social service workers during critical staffing shortages.

Must The Employee Be Paid While Excluded?

While employees are excluded under the revised ETS, employers “shall continue and maintain an employee’s earnings, wages, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job.” Wages must be paid at the regular rate of pay no later than the regular pay day for the pay period. Employers may require employees to use sick leave for this purpose, but must maintain earnings even if no sick leave is available. At the time of exclusion, employers must provide excluded employees information on this benefit, as well as any other COVID-19-related benefits available under applicable law or company policy.

Notably, whereas the original version of the ETS included a requirement that the excluded employee be otherwise able and available to work in order to qualify for exclusion pay, that requirement is deleted in the revised ETS.

There are two primary exceptions. First, exclusion pay is not required where the employee receives disability payments or temporary disability under workers’ compensation. Second, exclusion pay is not required for close-contact exclusions where the employer can demonstrate the close contact is not work-related. If utilizing one of these exceptions, the employer must inform the employee of the denial and the applicable exception.

In addition, the revised ETS does not apply to the following: (1) work locations with one employee who does not have contact with other persons; (2) employees working from home; (3) facilities covered under the Aerosol Transmissible Diseases requirements; and (4) employees teleworking from a location of the employee’s choice.

What Else?

Have any questions or want to know more about the new revised ETS? Join us for our June 29 webinar on the new-look ETS (or watch it on demand).

As we previous wrote about here, on June 17, 2021, the Board for Cal/OSHA approved revisions to the Emergency Temporary Standards (“ETS”) that govern employer’s duties to fight COVID-19.  The Governor signed an Executive Order making the revised ETS effective the same day.  On June 18, Cal/OSHA published FAQs regarding the new revised ETS.  Here are five key issues employers should understand about the newly published FAQs:

1. Important Changes Under the Revised ETS

The FAQs explain some of the changes made by the June ETS from the original November 2020 ETS.  Some of these changes include:

  • Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
  • No face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers must be trained on CDPH recommendations for outdoor use of face coverings.
  • Employers may allow fully vaccinated employees not to wear face coverings indoors, but must document their vaccination status (see below for more details about documenting employee status)
  • No 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 group of employees)

2. Documenting Vaccination Status

The FAQs note that the revised ETS requires employers to document employee’s vaccination status, but does not set forth how employers are supposed to document vaccination status and what steps must be taken to document status.  FAQs provide the following are acceptable options:

  • Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
  • Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
  • Employees self-attest to vaccination status and employer maintains a record of who self-attests.

The FAQs also provide employers are not required to have employees submit proof of being vaccinated.  The FAQs then state the employees have the right to decline to state if they have been vaccinated or not, and then employers must treat these employees as unvaccinated “and must not take disciplinary or discriminatory action against the employee.”  This guidance set forth in the FAQs seems contrary to the DFEH’s guidance that employers may require employees to be vaccinated.  Logically, if employers can require employees to be vaccinated, they should also have the ability to ask for proof of vaccination.

3. Testing Offered To Employees

The FAQs explain that employers must offer testing at no cost to employees during paid time to:

  • Symptomatic unvaccinated employees, regardless of whether there is a known exposure. This is a new requirement.
  • Unvaccinated employees after an exposure.
  • Vaccinated employees after an exposure if they develop symptoms.
  • Unvaccinated employees in an outbreak.
  • All employees in a major outbreak.

4. When Employers Must Provide Respirators

The FAQs explain that employers must provide respirators to employees under two circumstances:

  • To any unvaccinated employee who works with others indoors or in a vehicle and who requests one and
  • Where there is a major outbreak (defined as 20 or more cases in an exposed group of employees), to any employees in the exposed group for voluntary use.

5. Requirements Still in Place Under the November 2020 ETS

Employers are reminded that these revised ETS change some requirements for employers, but there are many requirements that are still in place under the November 2020 ETS that employers must follow.  Some of these requirements include:

  • An effective written COVID-19 Prevention Program.
  • Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
  • Providing notification to public health departments of outbreaks.
  • Providing notification to employees of exposure and close contacts.
  • Requirements to offer testing after potential exposures.
  • Requirements for responding to COVID-19 cases and outbreaks.
  • Quarantine and exclusion pay requirements.
  • Basic prevention requirements for employer-provided housing and transportation.

Yesterday, September 9, Biden announced a move to mandate private employers with more than 100 workers to require vaccinations or test for COVID-19 on a weekly basis. California legislators have considered a mandatory vaccination law for employers, but did not pass the law prior to the end of the legislative session. Here are five key items California employers need to know about the upcoming federal mandate proposed by Biden:

1. The mandate would be issued through the Department of Labor’s Occupational Safety and Health Administration (OSHA).

OSHA would develop the rules for employers to comply with, and would have the authority to issue fines against employers who are not in compliance.  President Biden said fines could be $14,000 per violation.  OSHA will issue an Emergency Temporary Standard (ETS) soon that will set forth the requirements for employers.  There is no date yet when the ETS are expected.  Biden also signed an executive order requiring all government employees to be vaccinated.

2. What are the requirements for employers under Biden’s vaccine mandate?

Biden announced the mandate on September 9, stating that the mandate will require private employers with 100 or more employees to have their employees vaccinated or require a negative test from unvaccinated employees at least once a week.  The ETS will require employers to pay for the time it takes works to receive the vaccination or to recover post-vaccination.  For now, this is all we know, and employers will have to wait until the ETS is published by OSHA for the details.

The White House said that there will be “limited exceptions” to the vaccine mandate.  According to federal and California state law, employers will need to continue to provide reasonable accommodations for employees with medical issues that prevent them from receiving the vaccination or based upon a sincerely held religious belief.

As employers who have already mandated vaccinations in the workplace are finding, dealing with requests for reasonable accommodations can be tricky, especially for employees who are asking for a reasonable accommodation based upon a sincerely held religious belief.  Hopefully OSHA’s ETS will set forth a clear path for employers on how to document and deal with these type of accommodation requests.  If the ETS does not provide this clarity, it would unfortunately continue to place employers in a difficult position of facing fines for non-compliance with the ETS, or facing civil lawsuits from employees claiming disability or religious discrimination.

3. California’s vaccine mandates.

California lawmakers considered a potential bill requiring COVID-19 vaccinations on a state level for anyone to enter an indoor business establishment and to have workers vaccinated, but ultimately did not pass any mandate before the end of the legislative session.

California does have mandates for teachers and school staff, and for certain health care workers who must be vaccinated by September 30, 2021.

California requires all workers who provide services or work in heath care facilities set forth below to have their first dose of a one-dose regimen or their second dose of a two-dose regimen by September 30, 2021:

  • General Acute Care Hospitals
  • 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

In addition, many local counties and cities have passed or are considering vaccination mandates, such as Los Angeles City and Palm Springs (which only applies to patrons).

Additionally, Cal/OSHA’s own ETS requires weekly testing of unvaccinated employees whenever a workplace experiences a COVID-19 outbreak, defined as three or more cases within a 14-day period.

4. Employers must start considering how to implement mandatory vaccines.

California employers will need to continue to navigate the patchwork of federal, state, and local laws regarding vaccinations.  Now with this impending federal requirement from the Biden administration, employers with 100 or more employees need to start preparing on how to comply with the new requirement.  We have developed a checklist of seven items that California employers can use to start the process of requiring mandatory vaccinations, which is available here.

5. Legal challenges to Biden’s mandatory vaccination requirement.

Republican governors have already stated that they will be mounting a legal challenge to Biden’s vaccine mandate.  There are likely other groups that will challenge the mandate also.  However, the legal challenges will likely take some time to be resolved.  Until the OSHA ETS are ruled by a court to be invalid in some manner, employers will need to ensure compliance with the new regulations.

This week many employers made the decision to mandate vaccination policies for their employees.  Disney, Uber, Microsoft, and Walmart are some of the larger employers in the news this week that are requiring all or some of their employees to be vaccinated in order to return to the workplace.

Federal and California law make it clear that employers can mandate employees to be vaccinated.  California’s DFEH issued guidance that permits California employers to require employees to be vaccinated:

Under the FEHA, 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).

There are many considerations California employers need to make before implementing a mandatory vaccination policy, including the following:

1. Determine if the mandatory vaccination policy applies to all employees.

Employers must decide if all employees will be required to obtain the vaccination, or if it will apply to only certain employees.  For example, Microsoft announced this week that employees who wish to return to the office must have the vaccination.  Walmart is requiring its corporate staff members and regional managers to be fully vaccinated by October 4, and is offering all other employees a $150 incentive to obtain the vaccine according to The Washington Post.  Employers must be careful in designating who and who will not be required to be vaccinated to avoid any potential discrimination or disparate treatment claims.

2. Determine when employees are entitled to be paid for time taken to receive the vaccine or to recover from side effects from receiving the vaccine and expenses.

Employers must review federal, state, and local laws regarding any requirements to pay employees for the time (and expenses, such as mileage) involved to get vaccinated.  There is a patchwork of laws that employers must navigate in California that apply to employee compensation in this regard:

California employers must also review local requirements to pay for employees’ time to receive the vaccine and to recovery from any side effects.  For example, Los Angeles area employers must comply with:

3. Review and set up process to provide reasonable accommodations to employees.

California’s Fair Employment and Housing Act (FEHA) applies to employers with 5 or more employees.  It requires employers to reasonably accommodate employees with a disability unless the accommodation presents an undue hardship after engaging in the interactive process with the employee.  While the interactive process does not have to be recorded in a writing, it is a best practice for employers to develop a set of forms that ask the employee about the accommodation that is being sought, the employer’s response to the accommodation request, and the process that the company will take to evaluate all accommodation requests.

4. Determine what type of proof of vaccination the company will require.

According to the EEOC, employers may ask for proof of vaccination because such proof is not considered a disability-related inquiry.  According to the DFEH, employers may ask the employee for “proof” of the vaccination:

Because the reasons that any given employee or applicant is not vaccinated may or may not be related to disability or religious creed, simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination. However, because such documentation could potentially include disability-related medical information, employers may wish to instruct their employees or applicants to omit any medical information from such documentation. Any record of employee or applicant vaccination must be maintained as a confidential medical record.

Cal/OSHA’s revised ETS permits employers to document employee’s vaccination status, but does not set forth how employers are supposed to document vaccination status and what steps must be taken to document status.  Cal/OSHA’s FAQs provide the following are acceptable options to document employees’ vaccination status:

  • Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
  • Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
  • Employees self-attest to vaccination status and employer maintains a record of who self-attests.

5.  Develop protocols on how proof of vaccination will be kept and who within the company will have access to the confidential information.

Since people who have received the vaccine are given a card, it would be reasonable to ask for proof via this card. However, employers should not ask intrusive follow-up questions such as the reasons why the employee is not getting vaccinated since these questions may be considered disability-related and accordingly trigger ADA protections. Employers should also request that employees provide them no more information than necessary as proof of vaccination in order to avoid violations of other disability laws.

6.  Set forth policies and training for employees explaining that vaccinated employees need to still abide by social distancing protocols.

Employers must still abide by federal, state and local guidelines for the workplace.  Employers need to maintain compliance with these regulations, and can impose additional requirements on its workforce to prevent the spread of COVID-19 in the workplace.  Employees who have been vaccinated are not exempt from these requirements.

Also, the CDC has also cautioned against individuals who have received the vaccine from attending social gatherings if they have symptoms.

7.  Set forth COVID-19 testing requirements and explain that vaccinated employees may be subject to testing requirements in the future.

Nothing prevents employers from requiring COVID-19 tests for its employees, even if they have been vaccinated.  Employers should develop a plan under which circumstances they would require employees to be tested.  Employers should also review their testing requirements during outbreaks under Cal/OSHA’s revised ETS.

California employers have been on a four-week rollercoaster ride over Cal/OSHA’s revisions to its Emergency Temporary Standard (“ETS”). The ETS was originally effective November 2020. In May 2021, the Board for Cal/OSHA approved revisions to the ETS, and then withdrew the revisions five days before California’s state-wide reopening on June 15. Days later the Board proposed new revisions to the ETS.  On June 17, 2021, the Board finally approved revisions to the ETS.  The same day, the Governor signed an Executive Order making the revised ETS effective immediately. Below is a recap of some key new rules under the ETS affecting California employers.

  1. Employers may allow fully vaccinated employees not to wear face coverings indoors (except in outbreaks) but must document their vaccination status.
  2. There are no face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers should be trained on the California Department of Public Health’s (“CDPH”) recommendations for outdoor use of face coverings. CDPH’s recommendations can be found here.
  3. In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
  4. Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request. The respirator must be the right size, and the employee must receive basic instruction on how to get a good “seal” or fit.
  5. Physical distancing and barrier requirements are eliminated, 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 group of employees)
  6. Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
  7. Employers may not retaliate against employees from wearing face coverings.
  8. Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and evaluate the use of additional air cleaning systems

While employers now have clarification on rules governing masking, physical distancing and barriers in the workplace, they still need to sort out documenting proof of vaccination, providing approved respirators upon request for voluntary use, and testing for fully vaccinated employees.  Cal/OSHA FAQs can be found here.

CAL/OSHA seal

There remains in place many requirements from the original November 2020 ETS, including:

  • Mandatory, written COVID-19 Prevention Programs.
  • Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
  • Providing notification to public health departments of outbreaks.
  • Providing notification to employees of exposure and close contacts.
  • Requirements to offer testing after potential exposures.
  • Requirements for responding to COVID-19 cases and outbreaks.
  • Quarantine and exclusion pay requirements.

Stay tuned for updates and more guidance to meet the new ETS requirements.

As California reopens on June 15, 2021, employers must be careful to comply with numerous federal, state, and local (county and city) regulations.  Businesses not only have to comply with the state’s reopening guidelines if they serve the public (such as retail, restaurants, and theaters), but they must also comply with Cal/OSHA’s regulations that govern employees.  Here are five resources California employers can use to help in navigating the multitude of regulations they face during the reopening of the state:

1. California’s regulations regarding masks effective June 15, 2021

The state’s guidance of face coverings: https://covid19.ca.gov/masks-and-ppe/#Face-coverings-Guidance

2. Cal/OSHA Emergency Temporary Standards (ETS)

Cal/OSHA’s ETS applies to most employers in California and sets various requirements on employers regarding COVID-19.  Late on June 9, 2021, Cal/OSHA’s Standards Board withdrew proposed revisions to the ETS that were approved on June 3, 2021 and were expected to take effect by June 15, 2021, in connection with California’s reopening and lifting of the restrictions under the “Blueprint for a Safer Economy.”

Cal/OSHA’s website and explanation of the status of the revised ETS is here.

To learn more about Cal/OSHA’s revisions to the ETS and what the withdrawal of the revised ETS on June 9, 2021 means for California employers, see our prior post here.  For additional information about the original ETS implemented in November 2020 that are still applicable to California employers (as of June 11, 2021) is here.

3. California Department of Public Health memo dated May 21, 2021, “Beyond the Blueprint for Industry and Business Sectors – Effective June 15”

The Department of Public Health’s May 21, 2021 memo sets forth the revised restrictions for California as it reopens on June 15, 2021.  The memo addresses vaccine verification/negative testing requirements, capacity limitations, physical distancing, masks, and travel advisories.  The memo can be viewed here.

4. California Department of Public Health memo dated June 9, 2021, “Guidance for the Use of Face Coverings”

 The Department of Public Health’s June 9, 2021 memo sets forth guidance for the use of face covering s for the general public and businesses as the state reopens on June 15, 2021.  The memo can be found here.

5. Local County and City Regulations

Employers need to ensure compliance with local county and city requirements as well.  For example, on June 10, Los Angeles County had a virtual town hall discussing the county’s plan for reopening.  A recording of the town hall can be viewed here:

Los Angeles County will be issuing written guidelines within the next few days.

Late on June 9, 2021, Cal/OSHA’s Standards Board withdrew the revisions to its COVID-19 prevention emergency temporary standards (“ETS”) that were approved on June 3, 2021 and were expected to take effect by June 15, 2021, in connection with California’s reopening and lifting of the restrictions under the “Blueprint for a Safer Economy.”  We wrote about the revisions to the ETS approved on June 3 here.

The Board said this vote to withdraw the revised ETS was made during a “meeting to consider the latest guidance regarding masking from the Centers for Disease Control (CDC) and California Department of Public Health (CDPH).”  In an email sent by the Department of Industrial Relations, they explained:

Those revised emergency standards were expected to go into effect no later than June 15 pending approval by the [Office of Administrative Law] OAL within 10 calendar days after the Standards Board rulemaking package submission. At today’s meeting, the Standards Board voted unanimously to withdraw the revisions approved on June 3 that are currently at OAL for review but have not yet become effective. Cal/OSHA will review the new mask guidance and bring any recommended revisions to the board. The Board could consider new revisions at a future meeting, perhaps as early as the regular meeting on June 17. In the meantime, the protections adopted in November of 2020 will remain in effect.

California employers are looking to Cal/OSHA for guidance on how the state’s reopening on June 15 will impact employers’ obligations.  While California lifts the “Blueprint for a Safer Economy” on June 15, employers are still subject to Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards.  The revisions to the ETS were an attempt to bring the workplace requirements for social distancing and face masks closer to the reopening standards for California residents on June 15.  However, with this June 9th announcement that Cal/OSHA is withdrawing the revised ETS, California employers must still continue to comply with the original ETS issued in November of 2020.  Therefore, even though California is “reopening” on June 15, 2021, California employers will have no relief from their current obligations under the original ETS, and still must continue to comply with those requirements.  For more information about what the original ETS require of California employers, see our prior post here.

Still confused and have questions about what this means for California employers?  Join us for a webinar tomorrow (6/10) at 10 a.m. for a discussion of what this all means for California employers. Click here to register for the webinar.

 

On June 3, 2021, the Cal/OSHA Standards Board met again to vote on new proposed revisions to the Cal/OSHA Emergency Temporary Standards (ETS). As we discussed here, the Standards Board did not vote on the revisions on May 20, as originally planned. A draft of the new proposed revisions was posted on May 28 and can be found here.  The revised ETS are effective June 15, 2021.

The June 3rd vote, however, was not as straightforward as anticipated. The meeting took almost all day and included hours of public comment. Initially, the Standards Board voted 4-3 to reject the May 28 revisions. This initial rejection was followed by a second vote just minutes later, which adopted the changes discussed below.

What changes were made to the ETS?

The new ETS starts by defining the term “fully-vaccinated.” Being fully-vaccinated means that employees are able to provide documentation showing that they have “received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single dose COVID-19 vaccine.”

Face Coverings

Fully vaccinated employees, either when alone in a room or in a room in which all other are also vaccinated and not experiencing symptoms, are no longer required to wear face coverings.  A “face covering” means “a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers.”

Physical Distancing

Also, the physical distancing requirement no longer applies at locations where all employees are fully vaccinated. Further, when outdoors, these individuals will no longer be required to keep six feet of distance from other unmasked employees. Fully vaccinated individuals are allowed to be outdoors without masks provided they are not experiencing COVID-19 symptoms. However, it is important to keep in mind that physical distancing will still be required until July 31, 2021 and fully vaccinated employees must still wear face coverings while indoors in the presence of individuals who have not been fully vaccinated.

Should a fully vaccinated person come in close contact with a COVID-19 case, employers are no longer required to exclude the vaccinated individual from the workplace, as long as he/she is not experiencing COVID-19 symptoms and was fully vaccinated prior to coming into contact with the infected individual. However, a fully vaccinated employee who tests positive for COVID-19 will still be required to stay out of the workplace for 10 days after the test whether experiencing symptoms or not.

Employer COVID-19 Testing Requirement

Employers are also now required to provide free COVID-19 testing during working hours to all unvaccinated symptomatic employees. This testing obligation does not apply to fully vaccinated employees

Other than guidelines regarding vaccinated employees, the new ETS addresses notice and testing requirements and the proper use of respirators.

Written Prevention Programs

In line with prior versions of the ETS, employers must still maintain written COVID-19 Prevention Programs. This written notice must include the employer’s plan for disinfecting the workplace and, information regarding the employer’s COVID-19 policies, and relay “the fact that the vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death.” Although employers are still required to inform employees of close contact with a positive individual within one business day, this obligation is now triggered when the employer “knew or should have known of a COVID-19 case.”

Employer’s Obligation to Provide Unvaccinated Employees with Respirators

Beginning July 31, 2021, employers will be required to provide respirators to non-vaccinated employees. Cal/OSHA defines a respirator as a device “approved by the National institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.” Use of these respirators, however, will be voluntary. Providing these to employees relieves employers of their duty to enforce physical distancing.

Exclusion Pay

Employees excluded from the workplace for COVID-19 cases and those who had close contact with COVID-19 cases are entitled to “earnings, wages, seniority, and all other employee rights and benefits” while away from the workplace. Like the prior ETS, employers can still use the employee’s sick leave for to satisfy this requirement as long as it does not run afoul to any applicable laws.

Under the new ETS, however, employers are still required to pay exclusion pay whether or not the excluded employee is able to work. This is a departure from the original version of the ETS, which did not require employers to pay exclusion pay to employees who, for any reason, could not work while away from the workplace.

It is worth noting that exceptions still apply to the employer’s obligation to provide exclusion pay. First, the employee is not entitled to exclusion pay if he/she is receiving disability payments or is covered by worker’s compensation. Additionally, if an employer can show that close contact was not work-related, the employer is not required to provide exclusion pay.

How does the new ETS compare to Governor Newsom’s reopening plan?

Since the proposed revisions were posted on May 28, many have criticized Cal/OSHA’s changes as not going far enough compared to Governor Newsom’s plans that would essentially end mask mandates and social distancing requirements as of June 15, 2021. In fact, the board members who initially voted against the revisions shared the same sentiment.

However, the Standards Board, specifically the board members who initially rejected the vote, acknowledged that the new ETS is at least a step in ultimately easing all pandemic related restrictions. Simply put, something is better than nothing. Cal/OSHA’s rejection of the proposed revisions would be taking significant steps backward as Governor Newsom marches forward with his plans to return Californian’s to pre-pandemic life.

More revisions likely to come.

In response to the criticism, the Board has created a three-person subcommittee to explore further revisions to the ETS.  Subscribe to our blog for future updates on this and other important topics facing California employers as they reopen.

[Updated to reflect the new EEOC EEO-1 deadline of August 23, 2021]

California employers must continue to be ever vigilant about their obligations as we enter into the summer.  Here are five key dates California employers must be aware of during June and July 2021:

1. Cal/OSHA revised COVID-19 Prevention Emergency Temporary Standards likely to take effect on June 15, 2021

Cal/OSHA is proposing revisions to the Emergency Temporary Standards (ETS) to reflect the increase in vaccinations (see our prior post here).  The revisions were scheduled to be voted on May 20, 2021, but given the CDC’s recent guidance permitting vaccinated individuals to not wear masks, the vote was delayed until June 3 in order to permit Cal/OSHA to further revise the regulations.  It is expected the revised ETS, if approved on June 3, will likely become effective on June 15, 2021.  Employers will need to review the revised ETS and ensure compliance by the likely June 15, 2021 deadline.  As discussed below, as California reopens on June 15, 2021, the ETS will still govern California employers, therefore it is important for employers understand the revisions made to the ETS.

2. California reopening on June 15, 2021

Beginning June 15, 2021, California will lift most of its restrictions for indoor and outdoor settings, with vaccine verification and negative testing will only be required for indoor mega events and recommended for outdoor mega events.  California employers will still need to comply with Cal/OSHA’s ETS discussed above.

3. CalSavers June 30, 2021 deadline for employers with more than 50 employees

California employers who do not offer an employer-sponsored retirement plan and have five or more employees must register for CalSavers, which is a California state administered retirement plan.  California employers must register for CalSavers by the following dates:

  • Employers with more than 100 employees: September 30, 2020
  • Employers with more than 50 employees: June 30, 2021
  • Employers with more 5 ore more employees: June 30, 2022

More information about CalSavers is here.

4. July 1, 2021 local minimum wage increases across California

Many local county and city minimum wage rates increase across California on July 1, 2021:

July 1, 2021 Local Minimum Wage Increases in California
Local Jurisdiction: Minimum Wage Rate: Source:
Berkeley $16.32/hour https://www.cityofberkeley.info/mwo/
Emeryville $17.13/hour https://www.ci.emeryville.ca.us/1024/Minimum-Wage-Ordinance
Fremont $15.25/hour for employers with 26 or more employees; $15.00/hour for employers with 1 to 25 employees https://www.fremont.gov/3328/Minimum-Wage#:~:text=On%20January%201%2C%202020%2C%20Small,wage%20increases%20for%20Small%20Employers
Los Angeles County (Unincorporated areas) $15.00/hour (for all sizes of employers) https://dcba.lacounty.gov/minimum-wage/
Los Angeles City $15.00/hour (for all sizes of employers) https://wagesla.lacity.org/
Malibu $15.00/hour (for all sizes of employers) https://www.malibucity.org/793/Minimum-Wage
Milpitas $15.65/hour https://www.ci.milpitas.ca.gov/milpitas/departments/minimum-wage/
Pasadena $15.00/hour (for all sizes of employers) https://www.cityofpasadena.net/planning/code-compliance/minimum-wage-ordinance/
San Francisco $16.32/hour https://sfgov.org/olse/minimum-wage-ordinance-mwo
Santa Monica $15.00/hour (for all sizes of employers) https://www.santamonica.gov/minimum-wage

5. New EEO-1 submission deadline is August 23, 2021 (previously set for July 19, 2021)

The EEOC announced that the 2021 and 2020 EEO-1 Component 1 data must be submitted by Monday, August 23, 2021 (it was previously set for July 19, 2021).  EEO-1 data must be submitted by employers with 100 or more employees, and certain employers who are federal contractors with 50 or more employees.  Employers must provide “demographic workforce data, including data by race/ethnicity, sex and job categories.”  Employers may begin uploading their data files as of May 26, 2021.

More information can be viewed at the EEOC’s website here: https://www.eeoc.gov/employers/eeo-1-data-collection