Dear Clients and Friends:
Did you think we were done with COVID-19 newsletters? Not so fast. 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. And if you are curious about our prior Friday Five or other Newsletters, you will find them here.
(1) Just When You Thought it Was Safe To Go Back in the Water: New Mask Guidance from the CDC (and CDPH)
The Centers for Disease Control (“CDC”) has issued updated guidance for fully vaccinated people given what the CDC considers new evidence on the Delta variant (namely that it apparently is highly contagious and can be spread by both the fully vaccinated and the non-fully-vaccinated). In a nutshell, the CDC has:
- Added a recommendation that fully vaccinated people wear a mask in public indoor settings in areas of “substantial or high transmission.” Here is a link for determining whether your county is an area of high or substantial transmission. Spoiler alert: San Diego is.
- Suggested that fully vaccinated people might choose to wear a mask regardless of the level of transmission, particularly if they are immunocompromised or at increased risk for severe disease from COVID-19, or if they have someone in their household who is immunocompromised, at increased risk of severe disease or not fully vaccinated.
- Added a recommendation for fully vaccinated people who have a known exposure to someone with suspected or confirmed COVID-19 to be tested 3-5 days after exposure, and to wear a mask in public indoor settings for 14 days or until they receive a negative test result.
- Recommended universal indoor masking for all teachers, staff, students, and visitors to schools, regardless of vaccination status.
Separately, the California Department of Public Health (“CDPH”) has expanded its guidance to include a recommendation for universal masking indoors statewide.
Given the updated recommendations, conservatively California employers should consider resuming mask wearing inside for all employees.
(2) And in San Diego County?
The County of San Diego issued a statement following the CDC’s announcement of its mask recommendation. The County will follow the latest CDC guidance in recommending the universal wearing of masks by both vaccinated and unvaccinated individuals in indoor public settings.
(3) CDPH Has Issued New Requirements Vaccine Verification and Mandatory Testing for Non-Fully-Vaccinated Healthcare Workers and Has Expanded Mask Obligations.
The California Department of Public Health (“CDPH”) has ordered that all California public and private healthcare employers in “high risk” settings verify the vaccine status of all employees (including non-clinical staff). The order is effective August 9, and healthcare entitles have until August 23, 2021 to come into compliance.
Further under the order, any non-fully-vaccinated employees in those settings will need to be tested either once weekly (for workers in High-Risk Congregate Settings and Other Health Care Settings) or twice weekly (for workers in Acute Health Care and Long-Term Care Settings). Here is a link to the Order. Here are the “high risk” health care settings:
- Acute Health Care and Long-Term Care Settings:
General Acute Care Hospitals
Skilled Nursing Facilities (including Subacute Facilities
Intermediate Care Facilities
- High-Risk Congregate Settings:
Adult and Senior Care Facilities
State and Local Correctional Facilities and Detention Centers
Other Health Care Settings:
Acute Psychiatric Hospitals
Adult Day Health Care Centers
Adult Day Programs Licensed by the Department of Social Services
Program of All-Inclusive Care for the Elderly (PACE)/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/Mental Health Treatment Facilities
The following modes may be used as proof of vaccination:
- COVID-19 Vaccination Record Card (issued by the Department of Health and Human Services Centers for Disease Control & Prevention or WHO Yellow Card) which includes name of person vaccinated, type of vaccine provided and date last dose administered); or
- photo of a Vaccination Record Card as a separate document; or
- photo of the client's Vaccination Record Card stored on a phone or electronic device; or
- documentation of COVID-19 vaccination from a health care provider; or
- digital record that includes a QR code that when scanned by a SMART Health Card reader displays to the reader client name, date of birth, vaccine dates and vaccine type. The QR code must also confirm the vaccine record as an official record of the state of California; or
- documentation of vaccination from other contracted employers who follow these vaccination records guidelines and standards.
Facilities must have a plan in place for tracking verified worker vaccination status. Records of vaccination verification must be made available, upon request, to the local health jurisdiction for purposes of case investigation. Workers who are not fully vaccinated, or for whom vaccine status is unknown or documentation is not provided, must be considered unvaccinated.
San Francisco has ordered similar requirements for city workers and for private and public healthcare workers, and Los Angeles and Santa Clara have signaled they plan to consider similar orders.
In addition to the above, the CDPH has expanded the indoor settings in which masks are required for all individuals, regardless of vaccination status (and surgical masks are recommended) to include Adult and Senior Care Facilities.
(4) Los Angeles, Sacramento and Yolo Counties Have Issued New Mask Guidelines.
On July 22, 2021, the Los Angeles County Department of Health issued an updated Order of the Health Officer. In particular:
- All persons in indoor private office settings are required to wear a face mask.
- Face masks must be worn by all persons, regardless of vaccination status, while in all indoor public settings and businesses.
- Customers, guests, and patrons are not required to wear a face mask indoors while actively eating or drinking in a stationary place, receiving personal care services that require the removal of their mask, or when alone in a room or office (this suggests that employees alone in a room remain able to remove their masks? But are they customers, guests or patrons?)
The Los Angelese Department of Health strongly recommends (but does not require) that all persons at Outdoor Mega-Events wear a face mask at all times when not seated in their ticketed seat, and continues to urge everyone, especially those who are not or cannot be vaccinated against COVID-19, to continue to exercise caution and good judgment. Sacramento and Yolo counties have added similar mask mandates.
(5) The DOJ Has Issued an Opinion that the Emergency Use Authorization Status of the Vaccines Does Not Prevent Employers from Requiring that Employees Get Vaccinated.
Here is a link to the Opinion issued by the federal Department of Justice. While just that, an opinion, and not binding law, this Opinion suggests that it will be harder for an employee to allege a claim for wrongful termination in violation of public policy in the event the employee is terminated for refusing to get a vaccine. This theory remains largely untested in the courts (particularly in California), however. Our general advice remains that you need to tread very carefully in considering a vaccine mandate for your workplace, and that you consider a compromise before imposing such a mandate. And certainly, any such mandate needs to include considerations as outlined by the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing for employees who cannot for medical or religious reasons be vaccinated.
In Other Employment News: Have You Acted in Response to Ferra?
As we shared in our most recent newsletter, as a result of the California Supreme Court's decision in Ferra v. Loews Hollywood Hotel, LLC, employers are in even greater peril of exposure for meal and rest claims. The most important take away from Ferra is that many of you may have been doing the wrong math in calculating meal and rest period penalties, which potentially is an expensive mistake. And the Supreme Court's decision is retroactive, meaning that fixing your math going forward, while important, may not of itself eliminate the risk.
As part of our Meal and Rest Break Protection Program we held an interactive comprehensive seminar to help companies swiftly get into and/or strengthen compliance with the requirements articulated in the Ferra decision. Thanks to the many of you who particpated and helped us make the training so effective and practical. If you missed the presentation and still want to participate in the Program, let us know, because we have recorded the training, and the additional protection pieces of the Meal and Rest Break Protection Program remain available:
- Up to two hours of one-on-one guidance from one of our wage and hour expert attorneys, to take a deeper look at your unique practices and risks, and to outline a tailored strategy for making protective changes going forward; and
- Policies, employee notices, and attestations you can begin to use immediately to move into (or strengthen) your company's legal compliance, including the proper formulas to use for meal and rest break penalty payments, up-to-date handbook policy provisions, and communications you can have with your employees.
Let us know if you would like to participate in the program (the registration fee is $750 per company), and we will help you register.
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!