Dear Clients and Friends:
Welcome to our Friday Five Newsletter, where we share the Top Five Things You Need to Know This Week to Protect Your Work Community™ (in particular with respect to COVID-19) and help it thrive. Below are recent developments in the law, or questions that we find ourselves answering a lot. As always, please reach out with any questions, we are here for you. We can help you navigate the confusion of so many rules and recommendations, for your unique work community. And if you are curious about our prior Friday Five or other Newsletters, you will find them here.
(1) OSHA Has Issued Updated Guidance on COVID-19 Safety.
- Wearing a mask in public indoor settings in areas of substantial or high transmission;
- Choosing to wear a mask regardless of level of transmission, particularly if individuals are at risk or have someone in their household who is at increased risk of severe disease or not fully vaccinated; and
- Getting tested 3-5 days following a known exposure to someone with suspected or confirmed COVID-19 and wearing a mask in public indoor settings for 14 days after exposure or until a negative test result.
OSHA “strongly encourages” employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects and suggests that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.
Remember, this is separate from mandatory OSHA COVID-19 Emergency Temporary Standard requirements for healthcare workplaces.
(2) CDPH Is Mandating Vaccines for Some Healthcare Workers and Issued New Rules on Isolation and Quarantine.
The California Department of Public Health (“CDPH”) has ordered that all California public and private healthcare employers in certain “high risk” settings require their employees be vaccinated. The order is effective August 5, 2021 and facilities need to come into full compliance by September 30, 2021. Here is a link to the Order.
All workers who provide services or work in “Health Care Facilities” must have their first dose of a one-dose regimen or their second dose of a two-dose regimen by September 30, 2021. Health Care Facilities means:
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
Pediatric Day Health and Respite Care Facilities
Residential Substance Use and Mental Health Treatment Facilities
"Worker" includes all paid and unpaid individuals who work in indoor settings where (1) care is provided to patients, or (2) patients have access to the worker for any purpose. This includes workers serving in health care or other health care settings who have the potential for direct or indirect exposure to patients or SARS-CoV-2 airborne aerosols. Workers include, but are not limited to, nurses, nursing assistants, physicians, technicians, therapists, phlebotomists, pharmacists, students and trainees, contractual staff not employed by the health care facility, and persons not directly involved in patient care, but who could be exposed to infectious agents that can be transmitted in the health care setting (e.g., clerical, dietary, environmental services, laundry, security, engineering and facilities management, administrative, billing, and volunteer personnel).
Workers may be exempt from the vaccination requirements only upon providing the facility a declination form, signed by the individual stating either (1) the worker is declining vaccination based on Religious Beliefs, or (2) the worker is excused from receiving any COVID-19 vaccine due to Qualifying Medical Reasons. To be eligible for a Qualified Medical Reasons exemption, the worker must also provide a written statement signed by a physician, nurse practitioner, or other licensed medical professional practicing under the license of a physician stating that the individual qualifies for the exemption and indicating the probable duration of the worker’s inability to receive the vaccine (or indicate if the duration is unknown or permanent).
If a worker qualifies for the exemption, that worker must meet the following requirements when entering or working in the facility:
- Test twice weekly for COVID-19 if working in acute health care and long-term care settings, and once weekly for workers in other health care settings.
- Wear a surgical mask or higher-level respirator approved by the National Institute of Occupational Safety and Health (NIOSH) at all times while in the facility.
The facility must maintain records of workers’ vaccination (full name and date of birth; vaccine manufacturer; and date of vaccine administration) or exemption status. If the worker is exempt the facility also must maintain records of the workers’ testing results.
Return to work criteria for individuals with COVID-19 is consistent with Cal/OSHA (this is not a change).
Return to work criteria for individuals who had close contact is updated as follows:
- Unvaccinated individuals who do not have symptoms may return under either of the following:
- If no testing: after 10 days from the date of last known exposure; or
- If testing: after 7 days if the test is taken after day 5 from the date of last exposure and test is negative.
- Vaccinated or previously infected individuals in prior 90 days do not need to quarantine if asymptomatic.
- Vaccinated and asymptomatic individuals should get tested 3-5 days after exposure and isolate if test is positive.
Remember: Every county has its own rules, and most of the counties (for example, San Diego) have more rigorous requirements than these. Please let us know if you need help navigating the various rules.
(3) Another County(ies) Heard From.
The counties of Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Sonoma, and the City of Berkeley, issued mask orders on August 2, 2021, effective August 3, 2021. Pursuant to these orders, every person, regardless of vaccination status, is required to wear face coverings in indoor settings (generally indoor restaurants, theaters, family entertainment centers, meeting rooms, and state and local government facilities and, most important, indoor workplaces). You may recall that Los Angeles, Sacramento, and Yolo counties have similar orders. Businesses covered by the orders are required to post these face covering requirements, and are encouraged to provide face coverings at no cost.
The orders include the following exceptions:
- In your own household, or while working in a closed room or office alone or with members of their household;
- While actively performing an activity that cannot be done while wearing a face covering (such as actively eating or drinking, swimming or showering in a fitness facility, or obtaining a medical or cosmetic service requiring removal of a face covering); or
- Children under two, persons with a medical condition or disability that prevents wearing a mask, those who are hearing impaired and the ability to see the mouth is essential for communication, or for whom wearing a mask would create a risk related to their work.
San Diego County has indicated it will begin requiring its public sector employees to verify COVID-19 vaccination or undergo regular testing. On August 16, 2021, members of the San Diego City Council and County health officials recommended that all employers in the county require their workers to show proof of vaccination for COVID-19 or submit to regular testing, but no mandate has been issued.
Remember to check each state’s rules! For example, Oregon law exempts certain types of workers, including fire fighters and law enforcement officers, from mandatory COVID-19 vaccinations as a condition of employment and in Montana employers may not discriminate based on a person’s vaccination status.
(4) Reminders from the DIR on Compensating Employees for Testing Related to COVID-19.
In July 2021, the California Department of Industrial Relations ("DIR") updated its FAQs. Given recent developments in COVID-19 testing, here are some we think are particularly worth noting:
Q: Are you required to pay employees if you require that they perform medical checks, like a temperature check, at home? (Remember: Cal/OSHA does not require that employers conduct temperature checks, but California employers are required to develop and implement a process for screening employees for and responding to employees with COVID-19 symptoms, which may include asking employees to evaluate their own symptoms before reporting to work.
A: Yes, in some cases. “Hours worked” can include tasks that an employer requires a worker to perform remotely, including tasks that determine whether a worker can or must go to a physical worksite. Time spent doing medical checks would likely not be compensable hours worked if an employer simply requested that workers take their temperatures and do a brief wellness check before coming to work so that they could be sure to refrain from coming into work if sick or a risk to co-workers, because the level of control would be slight. If, for example, an employer mandated that workers spend a few minutes before every shift following a set of detailed procedures using a particular cell phone application to take and record their temperature and then fill out a health questionnaire of non-trivial length, and the responsive information is then transmitted to the employer for review, that more likely would constitute compensable time, per the DIR.
Q: Are you required to compensate employees for the time spent obtaining a COVID-19 test or vaccination?
A: If you require an employee obtain a COVID-19 test or vaccination (and see our prior Newsletters or give us a call before you require either), you must pay for the time it takes for the testing or vaccination, including travel time and time spent waiting for the test or vaccination to be performed. However, unless otherwise required, the time spent waiting for COVID-19 test results is not compensable as hours worked (but the employee may be able to utilize paid leave while waiting for the results).
Q: Are you required to pay the cost of a COVID-19 test or for the cost, if any, of getting a COVID-19 vaccination?
A: Yes, if you require an employee obtain a COVID-19 test or a vaccination, or if the employee obtains the test or vaccination as a direct consequence of the employee’s discharge of the employee’s duties (i.e., the test or vaccination is effectively required for a job). If the testing or vaccination is performed at a location other than the employee’s ordinary worksite, the employee may also be entitled to reimbursement for necessary expenses incurred to travel to and from the testing or vaccination location.
(5) President Biden Has Announced New Requirements for Federal Workers and Healthcare Employees.
On July 29, 2021, the White House released “Remarks by President Biden Laying Out the Next Steps in Our Effort to Get More Americans Vaccinated and Combat the Spread of the Delta Variant.” According to the Remarks, every federal government employee, and federal contractors, will be asked to attest to their vaccination status, and any employee who does not attest or is not vaccinated will be required to (1) wear a mask, no matter where they work; (2) test one or two times a week to see if they have acquired COVID; (3) socially distance; and (4) generally not be allowed to travel for work. If captured in a new order or other legislation, this requirement would have significant implications for companies that are defined as “government contractors,” so stay tuned.
On August 18, 2021, President Biden announced that the Department of Health and Human Services will be developing new regulations requiring nursing homes to require that all of their workers be fully vaccinated against COVID-19 as a condition of participating in the Medicare and Medicaid programs.
We Are Here For You
We hope this information is helpful as you navigate the recent developments and constantly changing laws. Please stay tuned, we will continue keeping you updated. And please, reach out if you have questions or just want to talk!