California’s 2022 COVID-19 Supplemental Paid Sick Leave becomes effective tomorrow, February 19, 2022 (for background and basics about the new law, see our prior post here).  This week, the Labor Commissioner published additional resources just before the law becomes effective.  Below is a summary of the notice requirements (and with a link to the required poster) and a review of the critical issues addressed in the Labor Commissioner’s FAQs published this week to aid employers in meeting their obligations under the new law starting on February 19:

1. The required poster for employers is available on the Labor Commissioner’s website.

The only required notice employers must provide to employees about the new SPSL is through posting a poster developed by the Labor Commissioner.  The poster was published this week and can be found here.  (The Spanish version is here).

Employers who have employee that do not “frequent a workplace,” can satisfy the posting requirement by sending the notice to employees electronically.

2. The Labor Commissioner’s FAQs provide how employees can make requests for retroactive SPSL payments for leave between January 1, 2022 and February 19, 2022.

Employees who have taken leave from January 1, 2022 through February 19, 2022, for one of the reasons covered under the SPSL, the employee may ask for payment for this leave on or after February 19, 2022.  The Labor Commissioner’s FAQ #13 explains:

For example, if a covered employee had to take two hours off for a vaccine appointment on January 15, 2022, the employee can make an oral or written request to the employer to be paid for that time off in January, because it is a qualifying reason for taking 2021 COVID-19 Supplemental Paid Sick Leave.  The oral or written request must be made on or after February 19, 2022. A request made before February 19 does not count.  If an employee is unable to make the request themselves or has difficulty locating an employer to provide proper notice, they may contact the Labor Commissioner’s Office, which may be able to provide assistance.

After the employee makes the request, the employer will have until the payday for the next full pay period to pay the “retroactive” 2022 COVID-19 Supplemental Paid Sick Leave. On that payday, the employer must also provide accurate notice on the itemized wage statement of how many 2022 COVID-19 Supplemental Paid Sick leave hours have been used by the covered employee.

3. The FAQs explain what type of documentation employers may require from employees.

There are a limited number of occasions for when employers can condition the payment of SPSL only if employees provide certain documentation.  FAQ # 19 makes it clear that generally employees do not need to provide documentation to the employer in order to take SPSL.  However, that FAQ explains if the employer learns that the “employee is not requesting 2022 COVID-19 Supplemental Paid Sick Leave for a valid purpose” the employer could reasonably request documentation (but this is a very limited exception that employers must approach with caution).

The FAQs set forth the following the additional circumstances of when an employer may condition payment of SPSL upon documentation from the employees:

  • Employers may ask employees for documentation before paying retroactive payment for SPSL related an employee’s positive COVID test or the employee’s family member’s positive COVID test.

FAQ #14 explains:

… if the employee is requesting retroactive pay for leave that is available only if the employee or qualifying family member was positive for COVID-19, an employer may request documentation. This documentation could include, among other things, a medical record of the test result, an e-mail or text from the testing company with the results, a picture of the test result, or a contemporaneous text or e-mail from the employee to the employer stating that the employee or a qualifying family member tested positive for COVID-19.

  • Employers may ask for documentation before paying SPSL that is only available after a positive test. See FAQ # 20.
  • Employers may ask for documentation when an employee uses more than three days or 24 hours for a single vaccine appointment and recovery from any related side effects. Here, an acceptable request by the employer would be a note from a health care provider that the employee or family member continued to have vaccine side effects. See FAQ #20.

Other than these limited exceptions, employers may not condition the payment of SPSL upon employee providing documentation supporting their request for SPSL.

4. What COVID-19 tests are acceptable under the SPSL?

FAQ #21 provides that “an employee may take an over-the-counter rapid test (Antigen) or a test that is scheduled at a testing facility.  The law does not specify type of test and does not place conditions on how the test is administered in order to qualify for leave.”

5. Employers may count paid sick leave provided under local paid sick leave ordinances towards the 2022 SPSL requirement.

The FAQs permit employers to count leave provided under local ordinances towards the SPSL requirement under certain circumstances.  FAQ # 27 explains:

For example, if an employer provides a full-time covered employee 40 hours of COVID‑19-related supplemental paid sick leave pursuant to a local ordinance, those 40 hours would count toward the employer’s obligations under the 2022 COVID-19 Supplemental Paid Sick Leave law, so long as the leave provided is for a reason listed under the 2022 COVID-19 Supplemental Paid Sick Leave law and is at least at the same rate of pay as this law requires.

As the new law takes effect on February 19, 2022, it is likely that the Labor Commissioner will update the FAQs with further clarifications as employers begin to implement the requirements and additional questions arise.  Employers should review the full FAQs available here, and regularly check for any updates to the FAQs.

On February 9, 2022, Governor Newsom signed a new law requiring employers to provide supplemental COVID-19 paid sick leave in 2022.  The law, SB 114, was passed quickly by the legislature and signed by the Governor.  Unlike the supplemental paid sick leave law passed in 2021, there are no offsetting tax credits for employers to assist with the added costs this new paid sick leave will place on businesses across the state.  Here are five key issues California employers should know about the new law and its related deadlines:

1. The new COVID-19 supplemental paid sick leave law takes effect on February 19, 2022.

The Governor signed the law on February 9, 2022, and therefore the paid sick leave requirement takes effect 10 days after the enactment of the law – February 19, 2022.  The law applies retroactive obligation for employers to pay for qualifying paid sick leave starting January 1, 2022.  The paid sick leave requirement expires on September 30, 2022 (but employees currently using the sick leave can continue its use past the September 30th deadline).

2. Which employers would be covered by the law?

The law applies to employers with more than 25 employees.

3. Which employees are entitled to paid sick leave?

Employers are required to provide employees COVID-19 supplemental paid sick leave if the employee is unable to work or telework due to the following reasons:

  1. The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace.
  2. The employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
  3. The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19, subject to certain limitations.
  4. The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework.
  5. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. The employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.
  7. The employee is caring for a child whose school or place of case is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
  8. If the employee, or a family member for whom the employee is providing care, tests positive for COVID-19. (Note: employer may condition payment of supplemental paid sick leave for this reason upon the employee providing a positive test for themselves or the family member they are caring for.)

4. How much paid leave is required?

The employee is eligible for potentially up to 80 hours of leave available under two different banks:

  • Bank #1: Employees are entitled up to 40 hours of COVID-19 supplemental paid sick leave for full time employees based on reasons 1 through 7 above.
  • Bank #2: Employees are entitled up to 40 hours of paid leave for reason number 8 listed above (if they or a family member test positive).

Employers will therefore have to implement internal tracking measures to track the reason for the leave and how much of the leave the employee has taken under each of the two banks of leave available.  It is expected that there will be many questions regarding how employers are to account for the various reasons for leave under the two different banks of leave.  Employers will need to consult legal counsel on this and closely monitor any updates from the Labor Commissioner.

Calculating Amount of Leave Available

The law sets forth how employers are to calculate the amount of leave for part-time, variable scheduled employees, and full-time employees.  Employers will need to review the requirements in order to make the appropriate calculations for these different classes of employees.

Calculating Rate of Pay

The law sets forth how employers are to calculate the rate of pay for nonexempt employees, and exempt employees.  Employers will need to carefully review these calculations to ensure the proper rate of pay is being used when an employee takes qualifying paid leave.

Caps on Payments

However, the total paid sick leave is capped at 80 hours for the period between January 1, 2022 to September 30, 2022.  In addition, employers are not required to pay more than $511 per day and $5,110 in the aggregate to an employee (unless federal legislation changes these amounts set forth in the FFCRA).

Interaction with California’s Healthy Workplaces, Healthy Families Act and Cal/OSHA ETS Exclusion Pay, and Local Ordinances

The supplemental paid sick leave is in addition to the paid sick leave employees are entitled to under California’s Healthy Workplaces, Healthy Families Act set forth in Labor Code 246.  Moreover, employers cannot require employees to first exhaust the supplemental paid sick leave before paying exclusion leave required under the Cal/OSHA Emergency Temporary Standards (ETS).  The new California supplemental paid sick leave leaves in place any employer obligation to comply with local paid sick leave requirements, such as those in Los Angeles City and County, Long Beach, and Oakland.

5. Notice and pay stub requirements.

The law requires employers to provide a notice to employees the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period that it was due to be paid.  This can be provided on the employee’s pay stub or on another writing provided to the employee on the designated pay day.  The employer shall list “zero hours used” if a worker has not used any COVID-19 supplemental paid sick leave.  This requirement takes effect the next full pay period following February 19, 2022.

Employers are also required to post or distribute a notice to employees that will be developed by the Labor Commissioner.  The Labor Commissioner is in the process of updating its website, and will make the posters and FAQs available here.

Other provisions of the law also address firefighters and providers of in-home supportive services employees.

[Update: On February 9, 2022, the Governor signed SB 114 into law – see our updated article here on the new California supplemental paid sick leave requirements enacted by this law].

This week, Assembly Bill 84 (AB 84) was published setting forth the parameters of a proposed law for another COVID-19 supplemental paid sick leave requirement for California employers in 2022.  The Governor and legislature announced last month that they were discussing the framework of the law.  AB 84 gives employers some guidance on the likely COVID-19 supplemental paid sick leave law that will be implemented in the near future.  Here are five key issues California employers should know about the proposed legislation:

1. When will the new COVID-19 supplemental paid sick leave law take effect?

Currently the law has not been enacted, so there are no obligations for employers yet.  However, once the final law is passed and signed by the Governor, it will take effect upon the Governor’s signature.  The law provides that the paid sick leave requirement takes effect 10 days after the enactment of the law and would create a retro-active obligation for employers to pay for qualifying paid sick leave starting January 1, 2022.  The paid sick leave requirement would expire on September 30, 2022.  Given how quickly this new law will likely make its way through the legislature, employers are encouraged to start planning for compliance as soon as possible.

2. Which employers would be covered by the law?

The law would apply to employers with more than 25 employees.

3. Which employees are entitled to paid sick leave?

Employers are required to provide employees COVID-19 supplemental paid sick leave if the employee is unable to work or telework due to the following reasons:

  1. The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local public health officer who has jurisdiction over the workplace.
  2. The employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
  3. The employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19, subject to certain limitations.
  4. The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework.
  5. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. The employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.
  7. The employee is caring for a child whose school or place of case is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
  8. If the employee, or a family member for whom the employee is providing care, tests positive for COVID-19. (Note: employer may condition payment of supplemental paid sick leave for this reason upon the employee providing a positive test for themselves or the family member they are caring for.)

4. How much paid leave is required?

Employees are entitled to 40 hours of COVID-19 supplemental paid sick leave for full time employees based on reasons 1 through 7 above.  Part-time employees are entitled to a proportional amount based on how many hours they normally work.  Full-time employees are entitled to an additional 40 hours of paid leave for reason number 8 above (a positive test) and part-time employees are entitled to a proportional amount based on their normal hours.  However, the total paid sick leave is capped at 80 hours for the period between January 1, 2022 to September 30, 2022.  In addition, employers are not required to pay more than $511 per day and $5,110 in the aggregate to an employee (unless federal legislation changes these amounts set forth in the FFCRA).  Moreover, employers cannot require employees to first exhaust the supplemental paid sick leave before paying exclusion leave required under the Cal/OSHA Emergency Temporary Standards (ETS).

5. What are employers notice and pay stub requirements?

The law would require employers to provide a notice to employees the amount of COVID-19 supplemental paid sick leave that the employee has used through the pay period that it was due to be paid.  This can be provided on the employee’s pay stub or on another writing provided to the employee on the designated pay day.  The employer shall list “zero hours used” if a worker has not used any COVID-19 supplemental paid sick leave.  This requirement would take effect in the next full pay period following the date the law becomes effective.

Employers will also be required to post or distribute a notice to employees that would be developed by the Labor Commissioner.

Cal/OSHA Emergency Temporary Standards (“ETS”) apply to most workplaces in California, with very few exceptions.  Enacted in November of 2020, the ETS sets requirements for California employers related to COVID-19 protocols for exposures at the workplace and measures to take if employees are exposed to or catch COVID-19 at the workplace.  We have written about the ETS extensively before, but wanted to focus on five common questions we are seeing from employers about the ETS and the recent revisions to the ETS that took effect on January 14, 2022:

1. Which employers are covered by the ETS?

The ETS applies to all employers, employees, and places of employment with the following exceptions:

  • Work locations where there is only one employee who does not have contact with other people.
  • Employees who are working from home.
  • Employees who are covered by the Aerosol Transmissible Diseases regulation (Cal. Code Regs., tit. 8, § 5199) (section 5199).
  • Employees working from a location chosen by the employee that is not under the control of the employer (for instance, an employee teleworking from a café or a friend’s home).

2. Does an employer need to pay exclusion pay if the workplace is closed because of COVID-19 or any other reason?

Cal/OSHA’s updated FAQs (available here: https://www.dir.ca.gov/dosh/coronavirus/ETS-FAQ2_01.24.2022-AF.pdf) provides that if the business closes, exclusion pay is not required.  The FAQs state: “No, the employer need not maintain the exposed employee’s earnings and benefits if the excluded employee is unable to work because of reasons other than exposure to COVID-19 at work (e.g., a non-work exposure, business closure, caring for a family member, disability, or vacation). Such employees may be eligible for other leave, including sick leave, or other benefits such as Disability Insurance, Paid Family Leave, or Unemployment Insurance Benefits.”

3. Are at-home tests acceptable for employee testing requirements?

Cal/OSHA accepts home-based testing and explains:

To comply with the testing requirements of the ETS, over-the-counter (OTC) tests may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. This independent confirmation can be accomplished in multiple ways. For example, the employer can validate the test through the use of a proctored test that is supervised by a licensed, authorized telehealth provider via video proctoring, or by a point-of-care test provider. Alternatively, the employer could proctor the OTC test itself, including by video. Another option to meet the requirement that a test is not “self-read” is to use an OTC test that features digital reporting of date and time stamped results. These tests do not require observation by an employer or telehealth proctor.

See Question #2 on page 11 – https://www.dir.ca.gov/dosh/coronavirus/ETS-FAQ2_01.24.2022-AF.pdf

4. Can employers require employees to use paid sick leave in lieu of exclusion pay?

Employers may not require employees to use their California paid sick leave provided under Labor Code section 246, but may require the employees to use any other paid sick leave that is in addition to the California paid sick leave requirements.  The FAQs state the following: “Employers that provide a paid leave policy that is separate and in addition to the paid sick leave policy required by California’s Paid Sick Leave law (section 246 of the Labor Code) may require their employees to use that separate sick leave as permitted by law. However, an employer cannot require the employee to use the standard paid sick leave mandated under California’s Paid Sick Leave law, even when there has been a workplace exposure and the employer is required to exclude employees under the ETS.”

5. How to learn more about the ETS?

Cal/OSHA’s website provides various FAQs and materials for employers.  Cal/OSHA’s “Frequently Asked Questions Related to COVID-19” can be found here.

“Posters, Educational Materials, Model Programs and Other Resources Related to COVID-19” can be found here.

Cal/OSHA’s COVID-19 Model Prevention Program (updated January 14, 2022) which most employers are required to implement, can be found here.

This Friday’s Five focuses on five California employment related news items that got my attention this week:

1. California considering reinstating COVID paid sick leave in 2022.

As California’s supplemental paid sick leave expired in September 2021, and Governor Newsom decided not to extend it by executive order.  Now there are discussions of bringing COVID paid sick leave back, but there are still many questions about what this would look like, and who would be paying for it.  LA Democratic Assembly-member Wendy Carrillo is reported as intending to introduce a bill to provide for paid sick leave and will propose that the state use budget surplus money to pay for it.  Employers will have to watch to see how this issue develops.

Just as a reminder, California employers are currently required to pay for “exclusion pay” under the Cal/OSHA ETS which is, for the time being, in place until at least mid-April of 2022.

2. Employers still facing labor shortages and raising wages in 2022.

KTLA reports that “employees got about a 2.8% salary bump last year. At the beginning of 2022, companies were considering about a 3% raise, but are now looking at about 3.4%.”

3. California appellate court permits family member’s lawsuit to proceed against employer for injuries from employee allegedly bringing COVID-19 home from the workplace.

As set forth by the court, “Plaintiffs allege that Mrs. Ek, defendants’ employee, contracted COVID-19 at work because of defendants’ failure to implement adequate safety measures. They claim that Mr. Ek subsequently caught the disease from Mrs. Ek while she convalesced at home. He died from the disease a month later.” The court rejected defendant’s argument that the case was barred under the Workers’ Compensation Act derivative injury doctrine and will permit the lawsuit to proceed.  See’s Candies, Inc., et al. v. Superior Court of Los Angeles (Matilde Ek et al.)

4. 5 things to know about ordering free COVID tests (LA Times).

The LA Times provides some insights into the free COVID tests: the process is simple, plan ahead, and don’t just take the test for kicks.

5. CalSavers program is rolling out to smaller employers in 2022, and California has begun to issue citations for large employers who have not already complied.

California employers are required to register for the CalSavers retirement savings program.  Employers with over 100 employees were required to register by September 30, 2020, employers with more than 50 employees were required to register by June 30, 2021, and employers 5 or more employees must register by June 30, 2022.  The state has begun to issue citations, which start at $250 per employee, and can increase to $500 per employee.

On January 14, 2022, Cal/OSHA published fact sheets and updated its FAQs on COVID-19 Prevention Emergency Temporary Standards (ETS).  The fact sheets clarify the isolation and quarantine requirements for employers and employees (the image above is a portion of the fact sheet published by Cal/OSHA).  A major clarification from Cal/OSHA set forth that employees who are booster-eligible, but who have not yet received the booster, if exposed to someone with COVID-19 they do not need to quarantine as long as they are asymptomatic and must receive a negative test 3-5 days after the close contact.

Cal/OSHA’s updated FAQs can be found here.

The fact sheets can be found here:

Los Angeles County updated its requirements for employers who have employees working within the County.  This Friday’s Five highlights five issues employers in Los Angeles County should review (and the need to monitor for further updates that the County is currently working on):

1. Mask requirements

Los Angeles County sets forth that employers must now provide and require employees in close contact with others to wear a well-fitting medical grade mask, surgical mask, or higher-level respirator such as an N95 filtering facepiece respirator or KN95, at all times while indoors at the worksite or facility. Masks need not be worn indoors if the employee is alone in a room or actively eating or drinking. For a review of mask options, please visit this page.

2. Isolation and quarantine requirements

Los Angeles County recently updated its isolation and quarantine requirements on 1/13/22.  A chart of the various requirements depending on the employee’s test results and vaccination status can be found here.

3. Responding to COVID-19 in the workplace

LA County is updating their guidance on responding to COVID-19 in the workplace (the old page can be found here.  However, employers should monitor this page for updates, which the County notes is being completed.

4. Outbreak response

Employers have reporting obligations under Cal/OSHA ETS and under LA County requirements for outbreaks in the workplace.  Generally, an outbreak is defined as three or more laboratory-confirmed cases of COVID-19 are known or reported at the worksite within a 14-day period.  LA County’s requirements are listed here. However, it is recommended that employers routinely check this page for any potential updates regarding reporting obligations.

5. Remember to also comply with Cal/OSHA ETS

California employers with employees in Los Angeles must also remember to comply with the Cal/OSHA Emergency Temporary Standards (ETS).  The Cal/OSHA ETS were updated in December 2021 to include revisions related to returning to work after close contact. The revisions are effective starting on January 14, 2022. The latest order from the California Department of Public Health on January 5, 2022 requires the use of face coverings by all employees when indoors. More information on the COVID-19 Prevention Emergency Temporary Standards and the isolation and quarantine requirements is available here.

The Supreme Court blocked the Biden administration from enforcing its sweeping vaccine-or-test requirements for large private companies, but allowed a vaccine mandate to stand for medical facilities that take Medicare or Medicaid payments.  In this YouTube short, I briefly discuss how this will effect California employers.

Additional information about the Cal/OSHA ETS can be found on our YouTube Channel and on our blog.

[Updated to reflect guidance issued on January 14, 2022 – What Employers and Workers Need to Know About COVID-19 Isolation and Quarantine]

On January 6, 2022, Cal/OSHA issued updated FAQs to incorporate new isolation and quarantine recommendations from the California Department of Public Health (CDPH), which were also issued on January 6.

Until January 14, 2022, California employers subject to the ETS must follow the isolation and quarantine requirements set by the June 17, 2021 ETS.

As set forth in Cal/OSHA’s FAQs, on January 14, 2022, the CDPH’s recommendations set forth on January 6, 2022 will replace exclusion period and return to work requirements for all workers, and the following isolation and quarantine rules will apply to employers:

Exclusion requirements for employees who test positive for COVID-19 (isolation)

Any employees who test positive for COVID-19 (regardless of vaccination status, lack of symptoms or prior infections) must:

  • Be excluded from the workplace for at least 5 days
  • Isolation can end and employees may return to the workplace after day 5 if symptoms are not present or are resolving, and a diagnostic specimen (antigen test preferred) collected on day 5 or later tests negative.
  • If an employee is unable or chooses not to test and their symptoms are not present or are resolving, isolation can end and the employee may return to the workplace after day 10.
  • If an employee has a fever, isolation must continue and the employee may not return to work until the fever resolves.
  • If an employee’s symptoms other than fever are not resolving, they may not return to work until their symptoms are resolving or until after day 10 from the positive test.
  • Employees must wear face coverings around others for a total of 10 days after the positive test, especially in indoor settings.

Quarantine requirements for employees who are exposed to COVID-19 (quarantine)

Any employees who are unvaccinated (including those previously infected within the last 90 days) or who have been vaccinated and are booster-eligible but have not yet received their booster dose must:

  • Be excluded from the workplace for at least 5 days after their last close contact with a person who has COVID-19.
  • Exposed employees must test on day 5.
  • Quarantine can end and exposed employees may return to the workplace after day 5 if symptoms are not present and a diagnostic specimen collected on day 5 or later tests negative.
  • If an employee is unable or chooses not to test and does not have symptoms, quarantine can end, and the employee may return to the workplace after day 10.
  • Employees must wear face coverings around others for a total of 10 days after exposure, especially in indoor settings.
  • If an exposed employee tests positive for COVID-19, they must follow the isolation requirements above.
  • If an exposed employee develops symptoms, they must be excluded pending the results of a test.

However, exposed employees who are vaccinated and booster-eligible but have not received their booster yet and who are asymptomatic do not need to be excluded from work if:

  1. The employee receives a negative diagnostic test obtained within 3 to 5 days after last exposure to a case;
  2. The employee wears a face covering around others for a total of 10 days after exposure; and
  3. Employee continues to have no symptoms.

Employees who are exposed to COVID-19 are not required to quarantine if:

  1. The employees are boosted, or vaccinated, but not yet booster-eligible
  2. Must test on day 5 after exposure with a negative result. If employee cannot be tested, as of January 14, 2022, the employee does not have to quarantine but must wear a face covering and maintain six feet of distance from others for 14 days following the close contact.
  3. Wear face coverings around other for 10 days after exposure, especially in indoor settings.
  4. However, if the employee tests positive, they must follow the isolation recommendations above, and if the employee develops symptoms, they must be excluded pending the results of a test.

[Update: On January 6, 2022, Cal/OSHA issued updated FAQs on new isolation and quarantine requirements for California employers.  The update can be read here.]

On December 30, 2021, California Public Health Department (CPDH) issued revised guidance on COVID-19 isolation and quarantine procedures.  The revised guidance adopts some of the revised CDC recommendations issued on December 27, 2021, but still requires additional mitigation measures.

However, the CPDH notes in the updated guidance that employers are still required to follow Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (ETS) (or in some workplaces, the Cal/OSHA Aerosol Transmissible Diseases (ATD) Standard).  As of today, January 3, 2022, Cal/OSHA has not updated or changed its isolation and quarantine standards set forth in the ETS.

As a reminder, Cal/OSHA adopted revised ETS for California employers that will take effect on January 14, 2022.  This new ETS sets forth the following quarantine and isolation requirements for California employers:

Fully Vaccinated

The revised ETS requires fully vaccinated employees who have a close contact to be excluded unless they (1) do not develop symptoms, (2) wear a face covering and maintain six feet of distance from others for 14 days following the close contact.  The requirement that they must wear a face covering is a new requirement that was not included in the prior ETS.

Likewise, employees who have recovered from a COVID-19 infection in the prior 90 days and do not have symptoms, can return to work after a close contact as long as they wear a face covering and maintain six feet of distance from others for 14 days following the close contact.

Not Fully Vaccinated

Employees who have not been vaccinated, may return to work after a close contact if they do not develop symptoms, and 14 days have passed since the last known close contact.  However, if ten days have passed since the last known contact and the person wears a face covering and maintains six feet of distance from other for 14 days following the last close contact they may return to work.  They may also return to work if seven days have passed since the last known close contact and they test negative for COVID-19 with a specimen taken at least five days after the last known close contact, and the person wears a face covering and maintains six feet of distance from others at the workplace for 14 days following the last known close contact.

What are employers to do if the ETS provide more relaxed rules than the updated CDPH isolation and quarantine requirements?

There is no clear answer on how employers are to approach differences that permit employees to return to work under less stringent requirements under the ETS than under the revised CDPH requirements.  For example, the revised CDPH provides that individuals exposed to COVID-19 who have received their vaccination and booster shot (or are vaccinated but not yet eligible for the booster) do not need to quarantine if they do not have symptoms, must receive a test on day 5, and must wear a mask around others for 10 days.  However, as set forth above, the Cal/OSHA ETS effective on January 14 requires that employees who are exposed to COVID-19 and who have been fully vaccinated are not required to be excluded from work, and there is no requirement for the employee to receive a booster shot.  Are employers now required to track and document employee’s boosted status?  Are employers follow the more lenient requirements under the Cal/OSHA ETS if there is a conflict between the two?  Given these differences in the CDPH and Cal/OSHA guidance, Cal/OSHA will need to issue guidance to employers on the standard that is expected in the workplace.