Cal/OSHA readopted the COVID-19 Prevention Emergency Temporary Standards (ETS) on December 16, 2021.  While a large portion of the existing ETS remains in place, there were a few changes made in this newly adopted ETS.  The new ETS approved on December 16 will take effect on January 14, 2022.  This Friday’s Five provides a summary of some of key revisions employers must be aware of:

1. Testing requirements are modified.

The revised ETS provide that an acceptable COVID-19 test cannot be self-administered and self-read.  The employer or an authorized telehealth proctor must observe a self-administered test for it to qualify as a COVID-19 test under the ETS.

The revised ETS obligates employers to provide testing to employees if they have had a close COVID-19 contact, even if they are fully vaccinated.  This is a change from the prior version of the ETS that did not require employer to provide testing to employees who were fully vaccinated.

The revised ETS also requires employers to provide testing at no costs to all employees during an outbreak, even those who were fully vaccinated.  The prior version of the ETS did not require employers to provide testing to fully vaccinated employees who did not have symptoms during an outbreak.

2. Face covering definition has been updated (in addition to California’s updated mask mandate in place from December 15, 2021 through January 15, 2022).

The definition for face covering was updated to include a requirement that the face covering is made of “fabrics that do not let light pass through when held up to a light source.”  These include surgical mask, medical procedure masks, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least tow layers.  Gaiters are permitted if they have “two layers of fabric or be folded to make two layers.”

Separate from the ETS, California’s Department of Public Health implemented a new mandate on face coverings, requiring all individuals, vaccinated and unvaccinated, to wear a mask in all indoor public settings in California.  The guidance applies to workplaces regardless of whether they serve the public or are open to the public.  This requirement is in place from December 15, 2021 through January 15, 2022.  More information about the face covering requirements, visit the CDPH website here.

3. Worksite definition is clarified.

The ETS clarified in the definition of “worksite” that it does not include “location where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence or alternative work location chosen by the worker when working remotely.”  This revised definition potentially narrows the number of employees that notice must be provided when there is COVID-19 at the workplace.

4. Requires face coverings during screenings, even for vaccinated people.

Under the revised ETS, employers must ensure that workplace screeners and employees being screened for COVID-19 must wear face coverings.  The prior version of the ETS permitted the screeners and employees not to wear face coverings if they were fully vaccinated.

5. Exclusion from the workplace requirements modified.

In terms of employer’s obligations to exclude employees from the workplace, the revised ETS changed these requirements:

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.

Employers are reminded that the other portions of the prior ETS will still be in place.  For example, employers must still develop a written COVID-19 Prevention Program, provide training to employees, provide certain COVID-19 disclosures to employees, and pay exclusion pay to employees excluded from work due to a workplace exposure.

California employers must remember to comply with the nuances of the Cal/OSHA Emergency Temporary Standards (ETS), which became effective in November 2020, and are currently set to expire on January 14, 2022.  While California’s COVID-19 Supplemental Paid Sick Leave expired in September 2021, Cal/OSHA ETS requirement to pay employees for “exclusion pay” still applies to employers.  Here are five reminders about the requirements for California employers to pay exclusion pay under the ETS:

1. Employers must comply with the Cal/OSHA ETS until at least January 14, 2022.

Cal/OSHA is meeting on December 16, 2021 to discuss any potential changes to the ETS and whether to extend the ETS until April 14, 2022.  Regardless of any action taken by Cal/OSHA, employers must still comply with the current ETS, including the requirement to provide exclusion pay to employees until at least January 14, 2022.  Employers need to monitor the December 16th meeting to ensure compliance with any changes that are adopted (we will monitor and post updates, and will provide detailed information to subscribers to our blog).

2. Exclusion pay is required if the employee is excluded from work because of a workplace exposure to COVID-19.

An employee who is excluded from work because of a workplace COVID-19 exposure must receive exclusion pay if: 1) the employee was not assigned to telework during that time; and 2) the employee did not receive Disability Payments or Workers’ Compensation Temporary Disability Payments during the exclusion period.  Cal/OSHA explains that employers do not need to pay exclusion pay if it is a non-work exposure or due to another reason, such as a business closure, caring for a family member, disability, or vacation.  However, the employer has the burden of proof, and must show it is more likely thank not that the employee’s COVID-19 exposure was outside of the workplace.

3. Employers cannot require employees to use paid sick leave provided to employees under California Labor Code section 246.

Employers are prohibited from requiring employees to use their California paid sick leave required under the Healthy Workplace Healthy Family Act of 2014 as set forth in Labor Code section 246.  However, employers may require employees to use any other paid leave provided to employees that is separate and in addition to the California paid sick leave.

4. There is no cap on the total amount of exclusion pay that may be required.

The ETS does not cap the amount of exclusion pay for employees.  However, the ETS does provide that if an employee “is out of work for more than a standard exclusion period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, the employee may be entitled to other benefits, such as Temporary Disability, Disability….”

5. The employee is entitled to their regular rate of pay for the pay period in which the employee is excluded.

The amount of pay an employee is entitled to for exclusion pay is the regular rate of pay for the pay period the employee is excluded.  Cal/OSHA explains, “These employees are entitled to exclusion pay, depending on the length of the required exclusion period and how many days they were scheduled to work during that exclusion period.”  However, Cal/OSHA does not provide any explanation of how to calculate the amount owed to employees who work a variable schedule each pay period.  In addition, the employee must be paid no later than the regular payday for the pay period they had the work-related exclusion.

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

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

1. OSHA ETS vaccine mandate.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Resources for Employers:

OSHA publish FAQs on the new ETS here.

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

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

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

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

Who Must Be Excluded?

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

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

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

How Long Must They Be Excluded?

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

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

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

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

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

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

Must The Employee Be Paid While Excluded?

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

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

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

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

What Else?

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

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

1. Important Changes Under the Revised ETS

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

  • Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
  • No face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers must be trained on CDPH recommendations for outdoor use of face coverings.
  • Employers may allow fully vaccinated employees not to wear face coverings indoors, but must document their vaccination status (see below for more details about documenting employee status)
  • No physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:
    • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
    • Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees)

2. Documenting Vaccination Status

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

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

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

3. Testing Offered To Employees

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

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

4. When Employers Must Provide Respirators

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

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

5. Requirements Still in Place Under the November 2020 ETS

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

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

[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.

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

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

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

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

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

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

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

3. California’s vaccine mandates.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. Employers may allow fully vaccinated employees not to wear face coverings indoors (except in outbreaks) but must document their vaccination status.
  2. There are no face covering requirements outdoors (except during outbreaks), regardless of vaccination status, though workers should be trained on the California Department of Public Health’s (“CDPH”) recommendations for outdoor use of face coverings. CDPH’s recommendations can be found here.
  3. In outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status.
  4. Employers must provide unvaccinated employees with approved respirators for voluntary use when working indoors or in a vehicle with others, upon request. The respirator must be the right size, and the employee must receive basic instruction on how to get a good “seal” or fit.
  5. Physical distancing and barrier requirements are eliminated, regardless of employee vaccination status with the following exceptions:
      • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an outbreak (3 or more cases in an exposed group of employees)
      • Employers must implement physical distancing and barriers during a major outbreak (20 or more cases in an exposed group of employees)
  6. Fully vaccinated employees without symptoms do not need to be tested or quarantined after close contacts with COVID-19 cases unless they have symptoms.
  7. Employers may not retaliate against employees from wearing face coverings.
  8. Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and evaluate the use of additional air cleaning systems

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

CAL/OSHA seal

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

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

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

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

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

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

2. Cal/OSHA Emergency Temporary Standards (ETS)

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

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

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

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

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

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

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

5. Local County and City Regulations

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

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