In November of 2020, Cal/OSHA came out with the COVID-19 Emergency Temporary Standards (ETS), which we covered here. The ETS provided guidance to employers in regard to developing workplace safety policies in response to the COVID-19 pandemic and required employers to draft written COVID-19 Prevention Programs. Since then, the ETS has been updated to reflect the changing COVID-19 landscape. For information regarding prior updates to the ETS, see our prior post.

As COVID-19 related deaths hit their lowest points since the start of the pandemic and with approximately 59% of Californians at least partially vaccinated, Cal/OSHA once again proposed a new set of changes to the ETS on May 7, 2021. The proposed revisions can be found here.  At first glance, it seems as though many of the proposed changes were prompted by the need for guidance in light of a an increasingly vaccinated population. Naturally, employers should make sure to monitor any updates to the ETS to ensure compliance as the vaccinated workforce continues to grow and businesses begin to fully reopen.

The Standards Board was scheduled to vote on the proposed changes on May 20, 2021. However, on the eve of the vote, Cal/OSHA’s Deputy Chief Eric Berg asked the Board to postpone its vote on the draft proposal. Berg suggested that any changes to the existing ETS would come into effect on June 15, 2021. To meet this deadline, which coincides with the date that California plans on adopting the CDC’s guidance allowing vaccinated individuals to not wear masks, the Standards Board has scheduled a June 3 meeting to vote on the new changes. The revised proposal must be drafted and posted by May 28, 2021.

On Friday, we replayed our March 23 webinar covering various topics including the American Rescue Plan’s renewal of FFCRA benefits and California’s brand new COVID-19 Supplemental Paid Sick Leave (SB 95). In both the original run and the replay, we got tons of great questions from employers about these two new laws. Below are answers to a few of the most common questions we get.

If an employee took paid leave in 2020 under the FFCRA, do I have to provide them new paid leave in 2021?

Yes and no. Whereas FFCRA paid sick and family leave was mandatory for covered employers last year, the renewed FFCRA for 2021 is optional. Eligible employers can elect to make FFCRA leave available to employees, but are not required to do so. Because California employers have corresponding mandatory leave obligations under California law (including COVID-19 Supplemental Paid Sick leave and Cal/OSHA exclusion pay), California employers may prefer to provide FFCRA leave in order to take advantage of the payroll tax credits available exclusively under the federal law.

If an employer does elect to make FFCRA leave available to employees, then the amount of leave available resets from 2020. So, employees who used any or all of their 2020 FFCRA leave would be entitled to new leave for 2021. Employees who did not use all of their 2020 FFCRA leave cannot carry it over into 2021 (except to the extent they were on a qualifying leave that started in 2020 and carried over into 2021).

If an employee was out of work in January or February 2021 for reasons that would qualify under the Supplemental Paid Sick Leave, do I have to go back and pay them for that time?

Yes…but only if they ask for it. SB 95, the law enacting COVID-19 Supplemental Paid Sick Leave, went into effect on March 29, 2021, but the paid leave is available for qualifying leaves retroactive to January 1, 2021.

That does not mean the employer has to unilaterally make retroactive payments. Rather, an employer’s obligation to make retroactive payments arises only if the employee makes an oral or written request. Once the employee makes the request, the employer has to make the retroactive payment on or before the payday for the next full pay period after the request.

Is the employee required to provide documentation to support COVID-19 Supplemental Paid Sick Leave eligibility?

No, says the Labor Commissioner. An employee is entitled to leave upon oral or written request, and an employer cannot condition leave or payment on medical certification or other documentation. On the other hand, if the employer has information indicating an employee was not truthful about the qualifying reason for the leave—e.g., “Bill says he needed to quarantine last week, but his social media account has pictures of him at the beach every day.”—then an employer could request documentation. (It’s always best to get legal counsel to advise on such issues.)

I paid an employee exclusion pay under Cal/OSHA back in February. Can I get any COVID-19 Supplemental Paid Sick Leave credit for that? If the employee requests CV-19 SPSL for that time, do I have to pay them twice?

You do not have to pay them twice. You can potentially claim a credit for that pay, but you have to act fast. For any qualifying leave taken in 2021 for which the employee was provided paid leave—for example, as Cal/OSHA exclusion pay or as a voluntary benefit, excluding vacation—the employer can credit that leave against the employee’s available COVID-19 Supplemental Paid Sick Leave, provided the leave was for a qualifying reason and either the employee was paid the applicable rate of pay or the employer makes a retroactive catch-up payment.

However, keep in mind that the employer is also obligated to advise each employee of the amount of available supplemental paid sick leave, either on a wage statement or a separate written notice provided on payday. So, to claim retroactive credit for any paid leave provided earlier this year, the employer probably needs to calculate that credit now so that the available leave reported to the employee reflects this deduction. In other words, you should not wait for the employee to take leave in the future before calculating any credit you intend to claim.

Legislation at the federal and state level this month changed many paid sick leave regulations for California employers.  California employers could be subject to at least five different paid sick leave laws spanning federal law, state law, state-regulations, and local government regulations.  As employers reopen in California, it is important to review the various paid sick leave requirements to understand which ones apply to your business to ensure compliance.

1. Families First Coronavirus Response Act (FFCRA)

The FFCRA enacted under the Trump administration on March 19, 2020 expired on December 31, 2020.  The Consolidated Appropriations Act of 2021 permitted employers to take a tax credit who continued to voluntarily provide paid FFCRA leave to employees through March 31, 2021.  The American Rescue Plan of 2021 passed on March 11, 2021, extended the payroll tax credits for qualifying leave that is voluntarily paid by employers through September 30, 2021.  The FFCRA and these extensions for the tax credits for the voluntary paid leave applies to employers with fewer than 500 employees.  The FFCRA does not require employers to provide paid sick leave in 2021, but employers who are voluntarily providing the paid sick leave for qualifying reasons are eligible for a tax credit for this paid leave.

2. 2021 California Supplemental Paid Sick Leave

Governor Newsom signed new legislation on March 19, 2021 requiring California employers to provide COVID-19 supplemental paid sick leave.  The new law applies to employers with more than 25 employees, expands the list of covered reasons for the paid leave from the old 2020 requirements, applies for all leave taken by employees in 2021 (upon verbal or written request by an employee, employers must pay for leave retroactively to January 1, 2021), must update and provide notice to employees on their pay stubs of the new amounts of supplemental paid sick leave the employee is entitled to at the end of the first full paid period following March 29, 2021, and there is a new posting requirement.

3. Cal/OSHA Emergency Temporary Standards (Cal/OSHA ETS)

On November 30, 2020, California’s Office of Administrative Law approved Cal/OSHA’s emergency standards setting forth new requirements for California employers. Under the new requirements, employers must develop a written COVID-19 prevention program, train employees, provide personal protective equipment to employees, provide certain information to employees, and abide by record keeping and new reporting requirements.  In addition, the Cal/OSHA ETS requires employers to provide “exclusion pay” to employees under certain circumstances.

4. Local County and City COVID-19 Paid Sick Leave Ordinances

Many local county and city governments have enacted their own COVID-19 paid sick leave requirements as well, including:

  • Los Angeles County:
    • Extended until 2 weeks after the expiration of the COVID-19 local emergency declared in March 2020
    • Applies retroactively to business starting on January 1, 2021.
    • [Update] LA County passed COVID-19 vaccine paid leave on May 18, 2021.  Read more about the ordinance here.
  • Los Angeles City: Extended until 2 weeks after the expiration of the COVID-19 local emergency declared in March 2020
  • Long Beach City: Reviewed every 90 days and still in force.
  • Oakland City: Extended until the end date of Oakland’s COVID-19 emergency declaration
  • City of Sacramento: Expires on March 31, 2021
  • San Francisco County and City: Both extended until April 12, 2021
  • City of San Jose: Expires on June 30, 2021
  • San Mateo County: Expires on May 1, 2021
  • City of Santa Rosa: Expires on March 31, 2021
  • Sonoma County: Expires June 30, 2021

5. California’s Healthy Workplaces, Healthy Families Act of 2014 and Local Paid Sick Leave Ordinances

California’s paid sick leave law, the Healthy Workplaces, Healthy Families Act of 2014, became effective on January 1, 2015.  The law requires employers of all sizes to provide 1 hour of paid sick leave for every 30 hours worked or another approved method.  Employer may cap the accrual of paid sick leave at 48 hours and cap the use of paid sick leave at 3 days or 24 hours, whichever is greater, within a 12-month period.

Some local governments also have their own paid sick leave requirements employers must comply with.  These requirements were in place pre-COVID-19.  Some examples of cities in Southern California with their own requirements include:

Update: Governor Newsom signed SB-95 on March 19, 2021.  Therefore, employers have until March 29, 2021 to ensure compliance with the new requirements. 

California’s supplemental paid sick leave for employees and food sector employees expired on December 31, 2020.  Just as California businesses are starting to reopen, California’s legislature passed and presented to Governor Newsom today (March 19, 2021) a new supplemental paid sick leave bill (SB-95) extending paid sick leave for California employees until September 30, 2021. Unlike the prior California COVID-19 paid sick leave law that applied to employers with more than 500 employees, the new law expands coverage to employers with more than 25 employees.  Here are five issues California employers need to know about the new paid sick leave law if Governor Newsom signs the bill (which is expected):

1. Covered employers

The new law would apply to employers with more than 25 employees. If signed by the Governor, the law requires the Labor Commissioner to made available within 7 days a poster required for employers to post in their workplaces.

The law also sets forth requirements for in-home supportive services, which is not addressed in this article.

2. Effective time period

The law retroactively applies to employers going back to January 1, 2021.  The law expires on September 30, 2021.

3. Qualifying reasons for paid sick leave

The law requires employers to pay COVID-19 supplemental paid sick leave to employees who are unable to work or telework due to any of the following reasons:

  1. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one of the foregoing, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period.
  2. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  3. The covered employee is attending an appointment to receive a vaccine for protection against contracting COVID-19.
  4. The covered employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
  5. The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. The covered employee is caring for a family member, as defined in subdivision (c) of Section 245.5, who is subject to an order or guidelines described in subparagraph (A) or who has been advised to self-quarantine, as described in subparagraph (B).
  7. The covered employee is caring for a child, as defined in subdivision (c) of Section 245.5, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

4. Amount of paid sick leave required

Employees are entitled to 80 hours of COVID-19 supplemental paid sick leave if they are considered full time, or if the employee worked or was schedule to work, on average, at least 40 hours per week for the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave.  Otherwise, employees are entitled to their total number of hours they normally are scheduled to work for the employer over two weeks, and if the employee works a variable schedule, then they receive 14 times the average number of hours worked in the six months preceding the date the employee took COVID-19 supplemental paid sick leave.  The law also sets forth how employers are to calculate each hour of COVID-19 supplemental paid sick leave for exempt and non-exempt employees.

Limited Use of Other Leaves

The supplemental paid sick leave must be in addition to any paid sick leave available to the employee pursuant to the Healthy Workplaces, Healthy Families Act of 2014 as set forth in Labor Code section 246.  Employers may not require employees to use any other paid or unpaid leave, paid time off, or vacation time before the employee uses COVID-19 supplemental paid sick leave.  However, employers may require employees to first exhaust their supplemental paid sick leave prior to paying employees under the Cal-OSHA COVID-19 Emergency Temporary Standards.

Cap

Employers are not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for COVID-19 supplemental paid sick leave.  However, if federal legislation amended these limits as set forth in the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (FFCRA), then the increased limits would apply to the California law.

Amount Must Be Set Forth In Writing To Employee

Employers must set forth the amount of COVID-19 supplemental paid sick leave available to an employee on the employee itemized wage statement or other writing provided on the designated pay date with the employee’s payment of wages.  For employees who work variable schedules, employers must perform an initial calculation of paid sick leave available and then indicate “(variable)” next to the calculation.  Then the employer must update the calculation when the employee requests covered paid leave or request records under Labor Code section 247.5.

5. Retroactive pay required to employees

If signed by the Governor, the law requirement to provide COVID-19 supplemental paid sick leave takes effect 10 days later, but the law shall apply retroactively to January 1, 2021.  Therefore, if an employee has taken leave since January 1, 2021 which was not paid by the employer, and is covered by one of the qualifying reasons for paid leave, upon the employee’s oral or written request by the employee, the employer is required provide the employee with a retroactive payment.  This payment must be made on or before the payday for the next full pay period after the request is made.  The employer must reflect this payment on the itemized wage statement or another writing provided to the employee on the designated pay date.

For additional updates on this new proposed law, as well as other California employment laws facing employers as they reopen their businesses, will be provided during my firm’s webinar on March 24, 2021 at 10 a.m. PT.  Registration for the webinar is here.

Late last year, Cal/OSHA implemented Emergency Temporary Standards that imposed dramatic new testing, training, and recordkeeping requirements related to COVID-19 exposure in the workplace. Most controversial of these new requirements was a mandate that employers “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” for employees excluded from the workplace under the ETS regulations, unless the employee was unable to work for other reasons (including hospitalization) or the employer could demonstrate that the COVID-19 exposure was not work related. Combined with requirements that even asymptomatic close contacts be excluded for at least 10 days (regardless of a negative test), this new ETS imposed significant pay obligations on employers just as various state and federal COVID-19 paid leave requirements were expiring at the end of 2020.

As noted previously, various business groups challenged portions of the ETS in state court in San Francisco, one of several such lawsuits. But after extensive briefing from the parties (and several interested non-parties), the judge last week issued an order denying a motion to preliminarily enjoin portions of the ETS:

Plaintiff have not shown a likelihood of prevailing on the merits of their claims.  Even if they could do so, the balance of interim harms and the public interest in curbing the spread of COVID-19 and protecting worker and community health way heavily in favor of the continued implementation and enforcement of the ETS Regulations.  With the single exception of restrictions on attendance at religious services, which present unique constitutional considerations, no federal or state court in the country has blocked emergency public health orders intended to curb the spread of COVID-19, and the illness, hospitalization, and deaths that follow in its wake. [Citations] This Court will not be the first.  Lives are at stake.

There is no indication as to whether the plaintiffs will appeal. The case does not end with this denial, but the ruling means the court will allow the ETS regulations to stand while the litigation proceeds. Therefore, employers should continue to follow the ETS regulations and track new updates from Cal/OSHA.

As February ends, there are many developments on the employment legal front.  Here are five prevalent employment issues for California and across the U.S.:

1. California Supreme Court holds employers may not round time entries for meal periods.

On February 25, 2021, the California Supreme Court held that employers may not engage in time rounding time punches for meal breaks under California law.  The case, Donohue v. AMN Services, Inc., the Court held that “meal period provisions are designed to prevent even minor infringements on meal period requirements, and rounding is incompatible with that objective.”  The Court distinguished time rounding policies in the context of meal breaks from time rounding policies for tracking an employee’s work time.  A California Court of Appeal held in See’s Candy Shops, Inc. v. Superior Court (2012) that employers may use rounding policies “to calculate regular and overtime wages if the rounding policy is neutral on its face and as applied.”  In Donohue, the Court explained that meal breaks are different: “In the meal period context, however, there is an asymmetry between the treatment of rounded-up minutes (i.e., time not work that is compensated with regular pay) and the treatment of rounded-down minutes (i.e., time worked that may trigger premium pay).”

The Court also raised concerns about time rounding policies given the ease of tracking employees’ time with technology, and the Court noted, “[a]s technology continues to evolve, the practical advantages of rounding policies may diminish further.”

The Court also held that time records showing late, short, or missed meal breaks “raise a rebuttable presumption of meal period violations, including at the summary judgment stage.”

2. Lawsuit challenging Cal/OSHA Emergency Temporary Standards (ETS) regulations is denied.

On February 25, 2021, the San Francisco Superior Court denied a group of employer’s application for preliminary injunction attempting to prevent Cal/OSHA’s Emergency Temporary Standards that were issued on November 30, 2020.  In denying the preliminary injunction, the court stated that “the balance of interim harms and the public interest in curbing the spread of COVID-19 and protecting worker and community health weigh heavily in favor of the continued implementation and enforcement of the ETS Regulations.”

California employers must still comply with the Cal/OSHA ETS regulations.  For more information about the ETS regulation, see our prior post here. 

3. Federal $15 minimum wage is not going to be part of President Biden’s COVID-19 relief bill.

On February 25, 2021, the Senate parliamentarian Elizabeth MacDonough ruled that minimum-wage legislation could not be passed through the budget-reconciliation process, and therefore would not be included in the $1.9 trillion relief package.  The Federal minimum wage, which is currently at $7.25 per hour, could still be increased through other paths.  Given the 50-50 Democrat-Republican split in the Senate, it appears that an increase in the Federal minimum wage will likely need to be a compromise.  Some proposed compromises include raising the minimum wage to $11 or $12 per hour, setting increases in minimum wage on a regional basis across the country, or limited the higher minimum wage to larger employers only.  Employers across the country will need to pay attention to see how this legislation develops. Our prior post on President Biden’s COVID-19 Rescue Plan can be read here.

4. California pay data reporting is due March 31, 2021.

As California employers are preparing to file their pay reporting data with the Department of Fair Employment and Housing (DFEH) by March 31, 2021 pursuant to SB 973 (click here for more information about the pay data reporting requirements), there are many questions arising about how to collect certain information.  For example, employers need to report the pay data based on seven race/ethnicity categories:

  • Hispanic/Latino
  • Non-Hispanic/Latino White
  • Non-Hispanic/Latino Black or African American
  • Non-Hispanic/Latino Native Hawaiian or Other Pacific Islander
  • Non-Hispanic/Latino Asian
  • Non-Hispanic/Latino American Indian or Alaskan Native
  • Non-Hispanic/Latino Two or More Races

However, how are employers to gather this information?  The DFEH published FAQs that explains: “Employee self-identification is the preferred method of identifying race/ethnicity information. If an employee declines to state their race/ethnicity, employers must still report the employee according to one of the seven race/ethnicity categories, using — in this order — current employment records, other reliable records or information, or observer perception.”  Employers should document the collection of this data in order to prove compliance with this guidance from the DFEH.

5. Labor Commissioner cites Los Angeles business for COVID-19 retaliation.

On February 17, 2021, the California Labor Commissioner cited a Los Angeles employer for $125,913 for “workplace retaliation and labor law violations, after the Labor Commissioner found that the employer illegally fired four workers for reporting unsafe working conditions during the COVID-19 pandemic.”  The citations include $45,193 in lost wages, $720 in interest due, $40,000 in Section 98.6 retaliation penalties, and $40,000 in Section 1102.5 retaliation penalties.  As business begin to reopen in California, employers must be aware of potential COVID-19 claims and ensure all employment decisions are well documented.

On January 8, 2021, Cal/OSHA updated the Frequently Asked Questions pertaining to its COVID-19 Emergency Temporary Standards (ETS).  For some background on the ETS, see our prior posts here.  California employers need to continue to adjust their practices to ensure compliance with this updated guidance from Cal/OSHA.  The complete FAQs can be found here.  Below is a selection of some of the updated FAQs as they pertain to five issues that raise many questions for employers:

1. Enforcement and Employer’s Good Faith Efforts To Comply with the ETS

Question 10: How will Cal/OSHA enforce the ETS as employers implement the rule? 
A:All employers are expected to comply with all provisions of the ETS, and Cal/OSHA will enforce the ETS, taking into consideration an employer’s good faith efforts to comply.

In addition to consideration of an employer’s good faith effort to comply before issuing a citation, for the first two months the rules are in effect (i.e., through  February 1, 2021), Cal/OSHA will cite but not assess monetary penalties for violations of the ETS that would not have been considered a violation of the employer’s Injury and Illness Prevention Program, respiratory protection program or other applicable Cal/OSHA standard in place prior to November 30, 2020. This brief period of relief from monetary penalties will allow Cal/OSHA and employers to focus on obtaining compliance, while ensuring workers still benefit from the protections in the ETS. This policy will not apply where an employer fails or refuses to abate a violation of the ETS Cal/OSHA has identified, or in the case of imminent hazards.

2. Impact of Vaccinations Received by Employees

Question 24: Once an employee is vaccinated, must the ETS still be followed for vaccinated persons?
A: For now, all prevention measures must continue to be implemented. The impact of vaccines will likely be addressed in a future revision to the ETS.

3. Testing Requirements and Determination of Outbreaks or Major Outbreaks

Question 30: Can employers send their employees to a free testing site for testing (e.g., run by their county) and is this considered to be “at no cost to employees?”
A: Yes, as long as employees incur no cost for the testing. Ensuring that an employee does not incur costs would include paying employees’ wages for their time to get tested, as well as travel time to and from the testing site. It would also include reimbursing employees for travel costs to the testing site (e.g., mileage or public transportation costs).

Question 45: How can an employer measure the 14- or 30-day period in which to look for positive cases to determine if there has been an outbreak or major outbreak?
A:
The employer should look to the testing date of the cases. Any cases for which the tests occurred within a 14-day period would be reviewed to see if the other criteria for an outbreak have been met.

4. When Employees May Return to Work

Question 49: What are the criteria for an employee exposed to a COVID-19 case in the workplace to return to work?
A: Applying Executive Order N-84-20 and current CDPH quarantine guidance, while a 14-day quarantine is recommended, an exposed employee who does not develop symptoms of COVID-19 may return to work after 10 days have passed since the date of last known exposure. Additionally, CDPH has provided guidance permitting health care, emergency response and social services workers to return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage.”

5. Employer’s Obligation to Pay “Exclusion Pay”

Question 52: Does an employer have to “maintain an employee’s earnings, 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” if the employee is unable to work because of his or her COVID-19 symptoms?
A: No, if an employee is unable to work because of his or her COVID-19 symptoms, then he or she would not be eligible for exclusion pay and benefits under section 3205(c)(10)(C). The employee, however, may be eligible for Workers’ Compensation or State Disability Insurance benefits.

Question 53: How long does an employee with COVID-19 exposure, or who tests positive for COVID-19 from the workplace, receive pay while excluded from the workplace?
A: An employee would typically receive pay for the period the employee is quarantined, which could be up to 14 days (see above for potential impact of EO N-84-20). If an employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness. The employee, however, may be eligible for temporary disability or other benefits.

There is still some confusion regarding the new Cal/OSHA Emergency Temporary Standards (ETS) that became effective on November 30, 2020 (we have written about the ETS previously here).  Here are five critical questions employers must consider about the ETS and their impact on the workplace:

1. What new reporting obligations do employers have under the ETS?

  • Employers must notify their local health department immediately but no longer than 48 hours after the employer knows or should have known of three or more COVID-19 cases.
  • Cal/OSHA must be notified when a COVID-19-related serious illness (such as a COVID-19 illness requiring inpatient hospitalization) or death occurs.

2. What investigation obligations do employers have regarding COVID-19 cases in the workplace?

The ETS requires employers to:

  • Develop an effective procedure to investigate COVID-19 cases in the workplace. This includes procedures for verifying COVID-19 case status, receiving information regarding COVID-19 test results and onset of COVID-19 symptoms, and identifying and recording COVID-19 cases.
  • For positive cases at the place of employment, employers need to:
    • Determine the day and time the COVID-19 case was last present, and to the extent possible, the date of the positive tests and/or diagnosis, and the date the COVID-19 case first had one or more COVID-19 symptoms, if any were experienced.
    • Determine who may have had a COVID-19 exposure and evaluate whether any employees need to be excluded from the workplace.
    • Give notice of the potential exposure to employees/independent contractors/other employers present at the workplace within one business day (employers must also comply with the written notice requirements of AB 685 as of January 1, 2021).
    • Offer testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace.
    • Investigate if any workplace conditions contributed to the risk of COVID-19 exposure and what could have done to reduce this exposure.

3. What written plan must employers have to comply with the ETS?

To comply with the ETS, an employer must develop a written COVID-19 Prevention Program or ensure these elements are included in an existing Injury and Illness Prevention Program (IIPP).

The employer must implement the following:

  • Communication to employees about the employer’s COVID-19 prevention procedures
  • Identify, evaluate and correct COVID-19 hazards
  • Physical distancing of at least six feet unless it is not possible
  • Use of face coverings
  • Use engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk
  • Procedures to investigate and respond to COVID-19 cases in the workplace
  • Provide COVID-19 training to employees

4. How do employers calculate the rate of pay for employees who are entitled to continued earnings?

Over a month after the ETS when into effect, Cal/OSHA has not issued any guidance on how employers are to make this calculation.  As a reminder, the ETS require that employees who tests positive or have been exposed to COVID-19, are excluded from the workplace, and who are “otherwise able and available to work” must continue to have their “earnings, 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.”  Employers are permitted to apply their sick leave benefits towards this purpose and may consider benefit payments from public sources in making this calculation.  However, the calculation of an employee’s earnings can be difficult based on a number of factors.  For example, the calculation is particularly difficult for employees who work a variable schedule.  Hopefully, Cal/OSHA will be able to provide guidance on this requirement soon.

5. When must an employer provide COVID-19 testing to employees?

Employers must provide testing for employees when (1) the employee had a potential exposure in the workplace and (2) all employees at the “exposed workplace” during an outbreak (defined as 3 or more cases within a 14-day period).  During an “outbreak,” employees must be tested immediately, again one week later, and then administer continuous testing of employees who remain at the workplace at least once a week.

On December 1, new Cal/OSHA Emergency Temporary Standards (ETS) went into effect, creating a host of new COVID-19 obligations for employers. Included in the ETS regulations are specific testing procedures, training and prevention protocols, and recordkeeping and reporting requirements. The ETS regulations include several controversial provisions, including stringent 14-day exclusion requirements for asymptomatic close contacts and a mandate that, with limited exceptions, employers “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” for employees excluded from the workplace under the ETS regulations. (On December 14, the Governor issued an Executive Order easing the 14-day exclusion mandate, such that most asymptomatic close contacts may return after 10 days.)

Predictably, the Cal/OSHA ETS regulations have now been challenged in court. On December 16, the National Retail Federation, National Federation of Independent Businesses, and three California employers filed suit in state court in San Francisco. The plaintiffs assert that “California employers have established rigorous and science-driven safety measures, often at great expense,” to make workplaces safe,” and that the Cal/OSHA ETS regulations violate California law and are unconstitutional.

The plaintiffs make several arguments, including:

  • The ETS regulations were adopted without adequate public notice or hearing in violation of the California Administrative Procedure Act;
  • By requiring employers to maintain earnings of excluded employees, the ETS regulations seek to regulate wages and paid leave in excess of Cal/OSHA’s jurisdiction;
  • Because the enhanced “outbreak” testing protocols are triggered by three cases in a 14-day period, regardless of whether the employer has 5 employees or 500 employees, the ETS regulations are arbitrary and capricious;
  • The exclusion and pay requirements pose a threat to the viability of smaller employers;
  • The ETS regulations were adopted contrary to internal staff findings that the regulations were unnecessary and unsupported by science; and
  • the ETS regulations deprive employers of property without just compensation or due process.

The complaint seeks a declaratory judgment invalidating sections 3205(c)(10) [requiring exclusion of employees while maintaining earnings], 3205(c)(3)(b)(4.) [requiring employers to offer testing during “working hours” for close contact employees after workplace exposure], 3205.1(b) [requiring weekly workplace testing after a workplace “outbreak”], 3205.2(b) [requiring enhanced testing after a “Major COVID-19 outbreak”], and 3205.3(g) [requiring testing related to employer-provided housing].

As of this post, a case management conference is set for May 19, 2021.  However, as the complaint also requests a temporary restraining order and preliminary injunction, expect the plaintiffs to fie a motion in the near future seeking to enjoin enforcement of the challenged provisions while the case proceeds. Employers should continue to comply with the ETS regulations for the time being.