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 What You Need to Know about COVID-19 in 2021 

In 2020 and the first half of 2021, employers focused primarily on COVID-19 supplemental paid sick leave and emergency family and medical leave issues.  For 2022, that focus shifts to vaccine mandates, medical and religious exemptions, and, as a result, updated emergency temporary standards. 
What you will find here are the California and federal requirements currently actively in place.  You will also find here a summary of the current status of the federal vaccine mandates, but because all three are (or likely will be) impacted by upcoming challenges made to the U.S. Supreme Court, we are not reiterating the specific requirements.  You can read our prior Newsletters (mostly from October on) for a nice summary of the federal mandates as presently drafted.  And we promise, we will send a Newsletter as soon as the guidance is clear.  
Employer COVID-19 Requirements in California:
  • New Requirements from the California Department of Public Health.  For the period of December 15, 2021 to January 15, 2022, Californians are expected to resume mask wearing in all “public indoor settings.”   Whether an office not open to the general public falls under the “indoor public settings” definition is unclear.  The new order does not provide any definition or clarification as to what types of businesses are covered.  In the current order (which expired earlier this week), in describing “indoor public settings and businesses,” the CDPH provided a list of examples including retail, restaurants, theatres, family entertainment centers, meetings, and state and local government offices serving the public.  However, unlike many of the local mask mandates (such as, for example, the Los Angeles County Mask Order), which expressly state that the mask mandate applies to public and private businesses (including indoor office settings), the CDPH Guidance makes no such specification.  In short, whether this applies to workplaces not open to the public is up for debate, and your response will depend on the unique features of your work environment and your risk tolerance.  Call us if you want to noodle it. And for more detail on this CDPH guidance, check out our December 17, 2021 Friday Five

  • Pending New Booster Requirements for Healthcare Providers.  On December 21, 2021 Governor Newsom announced that California would be moving forward to require all health care workers to boosted (a third shot or a second in the case of Johnson & Johnson).  

  • California COVID-19 Safety & Prevention Program (Cal/OSHA Emergency Temporary Standard (“ETS”)).  At present, the California ETS requires the following:

    -     A COVID Prevention Plan
    -     Hazard asssessment
    -     Training
    -     Vaccination verification (or if you do not require verification, and assumption that workers are not vaccinated and the application of the same safety rules (masks and/or social distancing, as defined) for all workers).  
    -     Exclusion and exclusion pay
    -     Notice of workplace exposure
    -     Protocols for outbreaks and major outbreaks

  • Additional California Department of Public Health Orders:

    -     Vaccine mandate (no testing option) – for employers in certain healthcare, adult and senior care, and home care settings

    -     Vaccine verification and testing requirement (no mandate) – for schools and certain healthcare and congregate settings

  • Remember, Local Counties and Cities may have additional vaccination, testing and mask requirements.  For example, Los Angeles has an aggressive vaccine mandate.  And the following counties have indoor mask mandates: Alameda, Contra Costa, Humboldt, Imperial, Los Angeles, Marin, Mendocino, Mono, Napa, Nevada, Orange, Sacramento, San Francisco, San Mateo, Santa Barbara, Santa Clara, Santa Cruz, Sierra, Sonoma, Trinity, Ventura and Yolo

  • On the Horizon.  If the federal OSHA ETS is further updated, we expect California to bring itself closer to mirroring federal law.  

Employer COVID-19 Requirements under Federal Law:
  • Federal OSHA Healthcare ETS for Healthcare Employers.  Here are the requirements, and California (Cal/OSHA) requirements are quite similar:

    -     A COVID Prevention Plan
    Hazard assessment

    NOTE: this ETS expired on December 21, 2022.  The impact of that expiration and next steps are unclear.  OSHA has not yet indicated one way or another whether they plan to extend the requirements.  Currently, and in the coming days, if they do not extend this Healthcare ETS, then the OSHA ETS applicable to employers with 100 or more employees will apply to employers covered by the Healthcare ETS.   More detail on the OSHA ETS is below.  

  • On the Horizon:  As you are aware from our many recent Newsletters,  three federal mandates are pending:

    Federal Contractors:  In 2021 the Safer Federal Workforce Task Force (“the Task Force”) issued guidance ("the Guidance") for federal contractors and subcontractors on the topic of vaccines and safety mandating vaccine protocols for those contractors.  That Guidance is st
    ayed, pending court review. 

    Large Employers - OSHA ETS: The Task Force similarly issued Guidance requiring that employers with 100 or more employees mandate vaccines or implement testing.  That requirement has been challenged in court, here is the latest on the status.  

    The Centers for Medicaid and Medicare Services (“CMS”) also mandated a requirement that various Medicare and Medicaid certified providers and suppliers adopt a vaccine mandate (no testing alternative is permitted) in order to participate in Medicare/Medicaid programs.   That requirement has been challenged in court, here is the latest on the status.    
What this means for your workplace?
  • You will want to review your COVID Prevention Plan to bring it into compliance with the updated requirements;

  • Train your managers on the new requirements;

  • The federal mandates likely will be considered by the U.S. Supreme Court.  We cannot predict the outcome.  Given OSHA’s aggressive stance on moving forward with compliance, it behooves you to at least prepare for that mandate to move forward.  In the short term, if you would be covered by either mandate, you may want to assess what you would need to do to be in compliance.  There is a lot to know! 
Please reach out and we can help develop your next steps.

We wish you a happy holiday season, and
a Happy New Year

©2021 Schor Vogelzang & Chung LLP
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619 906 2400 (p) • 619 906 2401 (f) • www.svclegal.com
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