Today, June 29, 2021, Cal/OSHA published a revised COVID-19 Model Prevention Program that reflect the changes made to the Emergency Temporary Standards (ETS) on June 17, 2021.

The revised COVID-19 Model Prevention Program can be downloaded from Cal/OSHA’s website here.

Most employers in California are required to establish and implement an effective written COVID-19 Prevention Program (CPP) pursuant to the Emergency Temporary Standards in place for COVID-19 (California Code of Regulations (CCR), Title 8, section 3205(c)). Cal/OSHA publishes this model program to assist employers with creating their own unique CPP tailored to their workplace.  While using the model CPP does not ensure the employer is meeting all requirements of the ETS, it is a useful starting document for employers.

California employers need to review their practices and policies to ensure compliance with the various local minimum wage increases taking effect across California on July 1, 2021.  Here are five items employers should consider prior to the July 1 deadline:

1. Ensure the company understands which city and county they are located within.

Many of the cities and counties provide resources to help companies determine if they are located within the city’s or county’s jurisdiction.  For example, the City of Los Angeles provides this resource.

2. Ensure employees who travel and work in other cities and counties are being paid the appropriate minimum wage.

Many of the local ordinances that require a higher minimum wage than the state minimum wage set forth when the city or county law will cover an employee who works within its jurisdiction.  For examples, Santa Monica and the City of Los Angeles assert jurisdiction over employees who work within their jurisdiction for two hours a week:

  • Santa Monica:  Law applies to any employee working a minimum of two hours within Santa Monica in a given week (even if employer is located outside of Santa Monica).
  • City of Los Angeles: Ordinance applies to “[a]n employee … who performs at least two hours of work in a particular week within the City of Los Angeles….”

Employers should review the various jurisdictions that their employees may travel into to ensure compliance with those requirements.

3.Ensure pay stubs reflect the increased minimum wage (as well as all other requirements).

The DIR provides an example of a pay stub for an hourly employee the meets all of the required items under Labor Code section 226:

Ensure that all employees earning minimum wage who are covered by a local minimum wage increase on July 1, 2021 are updated to reflect the increased minimum wage amounts.

4. Update posters to ensure the compliant posters are being used in the workplace.

Many local cities and counties have issued updated posters to reflect the increased minimum wage as of July 1, 2021.  Employers should review to ensure they are using the most current versions of the posters as of July 1, 2021.  Here are a few links to cities and county posters in Southern California:

County of Los Angeles required notices:

City of Los Angeles required notices:

Pasadena’s required notices:

Santa Monica’s required notices:

  • July 1, 2021 Legal notice (English) (Spanish) (note that employers in Santa Monica are required to post both English and Spanish notices, even if they do not employ any Spanish speaking employees)
  • Posters in other languages can be downloaded here

Malibu’s required notice:

City of San Diego’s required notices:

5. Update notices to employee who are hired on or after July 1, 2019.

Notices to Employee required under Labor Code section 2810.5 must be issued to all nonexempt employees when they start work.  The wage information section must reflect the higher minimum wage for minimum wage workers as of July 1, 2021.  Accordingly, the overtime rates of pay section of the Notice must also be updated to reflect the higher rates as a result of the higher minimum wage requirements.

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.

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.

 

California employers have many obligations under the Labor Code to create and maintain time records.  However, the Labor Code does not address many specific issues about time keeping systems and employers moving to electronic records.  While employers have not yet started to use the blockchain to record employee’s time and report pay information to employees, there are questions about how employers should be maintaining electronic records.  This Friday’s Five covers five key obligations employers should consider for electronic time keeping systems and employee pay stubs under California law:

1.  Are employers required to use a particular type of timekeeping system?

California law does not require the use of any electronic type of timekeeping system or time clocks.  Employers may elect to use paper and pen in recording an employee’s time.  As explained below, the records should be “indelible,” meaning that the time entries cannot be erased, removed, or changed.  However, even with just a handful of employees, many employers find it more efficient to use an electronic timekeeping system.  Moving towards an electronic time keeping system can reduce mistakes in the recording and calculation of time worked, make it easier to track changes, and could make a review of the time entries easier should there ever be a challenge by the employee about their pay.  Most timekeeping software today will also help monitor meal break compliance and will automatically flag any violations for a manager’s review.

2.  Can time records be kept electronically?

 California Wage Orders require that employers maintain the employees time records “in the English language and in ink or other indelible form.”

The Division of Labor Standards Enforcement (“DLSE”) issued an Opinion Letter on July 20, 1995 stating that “storage of records by electronic means meets the requirements of California law if the records are (1) retrievable in the State of California, and (2) may be printed in an indelible format upon request of either the employee or the Division.”

However, the DLSE issued another Opinion Letter on November 10, 1998 advising employers that the electronic time record data could be maintained outside of the State of California “as long as a hard copy of the records was maintained at a central location within California.”  As these two Opinion Letters contradict each other, employers could also look to the Wage Orders.  The Wage Orders require that time records “shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California.”  Therefore, employers should consider maintaining a copy of employee time records, either electronically or on paper, within the State of California.

3.  Electronic Pay Stubs

Similar language is also found in Labor Code section 226 pertaining to the information required to be provided to employees on pay stubs:

The deductions made from payments of wages shall be recorded in ink or other indelible form, properly dated, showing the month, day, and year, and a copy of the statement or a record of the deductions shall be kept on file by the employer for at least three years at the place of employment or at a central location within the State of California.

On July 6, 2006, the DLSE issued an Opinion Letter permitting employers to issue electronic pay stubs to employees if certain requirements were met.  The DLSE stated:

The Division in recent years has sought to harmonize the “detachable part of the check” provision and the “accurate itemized statement in writing” provision of Labor Code section 226(a) by allowing for electronic wage statements so long as each employee retains the right to elect to receive a written paper stub or record and that those who are provided with electronic wage statements retain the ability to easily access the information and convert the electronic statements into hard copies at no expense to the employee.

The DLSE approves electronic wage statements if the employer incorporates the following features:

  1. An employee may elect to receive paper wage statements at any time;
  2. The wage statements will contain all information required under Labor Code section 226(a) and will be available on a secure website no later than pay day;
  3. Access to the website will be controlled by unique employee identification numbers and confidential personal identification numbers (PINs).  The website will be protected by a firewall and is expected to be available at all times, with the exception of downtime caused by system errors or maintenance requirements;
  4. Employees will be able to access their records through their own personal computers or by company-provided computers.  Computer terminals will be available to all employees for accessing these records at work.
  5. Employees will be able to print copies of their electronic wage statements at work on printers that are in close proximity to the computer or computer terminal.  There will be no charge to the employee for accessing their records or printing them out.  Employees may also access their records over the Internet and save it electronically and/or print it on their own printer.
  6. Wage statements will be maintained electronically for at least three years and will continue to be available to active employees for that entire time.  Former employees will be provided paper copies at no charge upon request.

This same analysis would likely apply to the time records employers are required to maintain under California law.  However, employers need to approach this issue with advice from counsel, as there are no clear court decisions that have approved of the DLSE’s position.

4.  Items time records must report (be careful, it is more than just start and stop times)

The Wage Orders require that California employers keep “[t]ime records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded.”  IWC Wage Order 5-2001(7)(a)(3).

Additionally, Labor Code section 1174 requires employers to keep time records showing the hours worked daily and the wages paid, number of piece-rate units earned by, and the applicable piece rate paid.

5. Records must be maintained “in California”

These records must be maintained in the state or at the “plants or establishments at which employees are employed.”  The records must be kept for at least three years.  Labor Code section 1174(d).

The Wage Orders likewise require that employers keep records “at the place of employment or at a central location within the State of California.” As mentioned above, if employers have electronic records, a copy of the electronic data should be maintained within the state just as a precaution.

Employers should also note that the statute of limitations for many wage and hour class actions in California can extend back to four years under Business and Professions Code section 17200; and, therefore should consider keeping wage statements and other documentation required to defend against claims going back the previous four years.  Finally, employers need to ensure that the data being saved is the actual time records of the employees, and can be reproduced in format that is accurate and easy to read, should the records ever be requested or needed to defend litigation.

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