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Friday Five:
What You Need to Know This Week About Covid-19

Dear Clients and Friends:
Welcome to 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)     California Has Reopened Effective June 15
Effective June 15, 2021, California eliminated its color-coded reopening system, allowing all counties to reopen at that time.  Limitations, if any (and there are) are for those individuals subject to Cal-OSHA's Emergency Temporary Standards ("ETS") (detailed in Section (2) below) and California Department of Public Health (“CDHP”) guidelines and standards (detailed in Section (3) below).

(2)     New Cal/OSHA requirements.
On June 17, 2021 the California Occupational Safety & Health Standards Board (the “Cal/OSHA Board”) approved updates to the ETS that align more closely to the Centers for Disease Control and Prevention (“CDC”) and CDPH recommendations and requirements.  The same day, Governor Newsom signed an executive order enabling the revisions to take effect without the normal 10-day review period by the Office of Administrative Law.  In response to the updated ETS, Cal/OSHA published updated FAQs on the impact of the changes.  Here is what you need to know:  

Fully vaccinated employees (where the employer has documentation (see the Documentation section below) that the individual has received a vaccine that meets FDA approval or has emergency use authorization and, if they are vaccinated outside the United States, a vaccine approved for emergency use by the World Health Organization):
  • No longer are required to wear face coverings, even in the company of unvaccinated individuals, except when conducting COVID-19 screenings.  Having said this, employees in certain indoor settings must wear a face covering regardless of vaccination status if required by CDPH order (public transit, K-12 educational facilities, health care and long-term care settings, correctional and detention facilities, and shelters (homeless or emergency shelters and cooling centers)).

  • Need not quarantine following “close contact” as long as they remain asymptomatic.

  • Are not entitled to employer-provided COVID-19 testing if they are asymptomatic, even if they are part of an exposed group in an outbreak setting.  Employer-provided testing still is required in the event of a “major outbreak” regardless of vaccination or immunity status.  Major outbreak is having 20 or more employee COVID-19 cases in an exposed group during a 30-day period.
Unvaccinated employees (and employees who have not provided documentation of their fully vaccinated status):
  • Must wear a face covering when indoors or in vehicles with others.  Permissible face coverings include only a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a fabric material mask of at least two layers of material.  Employers must ensure that the face coverings are worn over the nose and mouth.  Exceptions include:

        When an employee is alone in a room or vehicle;

    -     While eating or drinking at the workplace, provided employees are at least six feet apart and outside air supply to the area has been maximized to the extent feasible;

    -     While wearing respiratory protection (e.g., respirators);

    -     Employees who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person.

    -     During specific tasks which cannot feasibly be performed with a face covering (during the time period in which such tasks actually are being performed).

  • Are “recommended” but not required to wear a face covering outdoors if physical distancing cannot be maintained.  

  • Are permitted to return to work within 10 days of “close contact” if they are asymptomatic, and certain essential critical infrastructure employees would be permitted to return after seven days during critical staffing shortages.

  • Are entitled to an employer-provided respirator at no cost, upon the employee’s request.  (Note: employers must encourage respiratory protection use by unvaccinated employees, and train any employees who request respiratory protection on how to properly wear the respiratory protection provided, how to perform a seal check, and on how facial hair may interfere with a seal.)  

    An employer either may stock respirators and offer them to employees or poll workers to determine which employees want a respirator before obtaining them.  Employers then should have enough on hand of the correct size and type to fulfill reasonably foreseeable requests on demand.  Employees may select and purchase their own respirator, as long as the employer reimburses the employee in a timely manner.  Cal/OSHA will not cite employers who make a good faith estimate and effort to provide respirators as soon as possible to employees who request them.

  • Are entitled to employer-provided COVID-19 testing during paid working time in the event of close contacts in the workplace.
Regardless of vaccine status:
  • No one is required to physically distance, except in the event of a major outbreak.

  • Everyone may return to work following close contact if (1) they have a negative COVID-19 test taken after becoming symptomatic, (2) at least 10 days have passed since the last known close contact, and (3) they have been symptom-free for at least 24-hours without the use of medication.

  • Everyone is entitled to an employer-provided respirator at no cost in the event of a “major outbreak” upon the employee’s request. 

  • Employers no longer are required to provide cleanable solid partitions where physical distancing cannot be maintained, although this remains a suggested potential safety measure in outbreak settings, and a required safety measure in major outbreak settings.

  • Everyone is allowed to wear a face covering if they choose to, unless it would create a safety hazard, such as interfering with the safe operation of equipment. 
Documentation of Vaccination Status.  Employers are required to “document” the vaccination status of employees. The ETS does not specify a particular method, but Cal/OSHA’s FAQ’s provide that the employer must record the vaccination status for any employee not wearing a face covering indoors, and this record must be kept confidential.  Per the FAQ, acceptable options for documenting include:
  • 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.
Please note: Santa Clara County continues to require that employers collect at least self-certification of vaccination status on forms from employees (but this self-attestation apparently will not suffice under the ETS).  
According to the FAQ: under the ETS, an employer is not obligated to require employees to submit proof of being fully vaccinated.  Absent such a requirement, an employee has the right to decline to state if they are vaccinated or not.  In that case, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee.

No Coverage for Remote Workers.  The ETS do not apply to employees who are teleworking from a location of the employee’s choice (for example, home or a Peet’s Coffee) which is not under the control of the employer.  

Exclusion Pay Requirements.  Employers continue to be required to provide employees who are excluded from work under the ETS with continued earnings and benefits unless they are receiving disability payments, workers’ compensation payments, or temporary disability payments, or if the employer can prove the close contact is not work related.  In the new ETS, employees no longer need to be “able and available to work” to be entitled to exclusion pay.  And, if the employer decides an exception to earnings continuation applies, the employer must inform the employee of the denial and the applicable exception.

Shared Employer Transportation and Housing.  No physical distancing requirements whatsoever in the employer-provided housing and transportation regulations.  Where all employees are vaccinated in employer-provided housing and transportation, employers are exempt from those regulations.  
Notice of Exposure.  All employees exposed to a COVID-19 case in the workplace must be notified in writing of potential exposure in a readily understandable format.  
Employee Training Must Include:
  • legally mandated sick and vaccination leave, if applicable;

  • the employer’s policies for providing respirators and how to properly use them;

  • the fact that COVID-19 is an airborne disease and N95s and more protective respirators protect the users from airborne disease while face coverings primarily protect people around the user;

  • how to access COVID-19 testing and vaccination, and the fact that vaccination is effective at preventing COVID-19 transmission, serious illness, and death;

  • the conditions under which face coverings must be worn at the workplace, and that they are recommended outdoors for people who are not fully vaccinated if physical distancing cannot be maintained; and

  • employees’ rights to request free face coverings and wear face coverings at work without retaliation.
COVID Prevention Programs Remain a Requirement for All EmployersLet us know if you need help preparing or updating your CPP. 

(3)     CDPH Mask Guidelines. 
Note that the CDPH expressly includes that “In workplaces, employers are subject to the Cal/OSHA ETS or in some workplaces the CalOSHA Aerosol Transmissible Diseases Standard, and should consult those regulations for additional applicable requirements.” The new CDPH mask guidelines and “Guidance for Businesses, Venue Operators or Hosts”  provide as follows: 

Masks are not required for fully vaccinated individuals, except in the following settings where masks are required for everyone, regardless of vaccination status:
  • On public transit (examples: airplanes, ships, ferries, trains, subways, buses, taxis, and ride-shares) and in transportation hubs (examples: airport, bus terminal, marina, train station, seaport or other port, subway station, or any other area that provides transportation);
  • Indoors in K-12 schools, childcare and other youth settings (pending updates for K-12 operational guidance from the CDC);
  • Healthcare settings (including long term care facilities);
  • State and local correctional facilities and detention centers;
  • Homeless shelters, emergency shelters and cooling centers.
Masks are required for unvaccinated individuals in indoor public settings and businesses (examples: retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public).  In settings where masks are required only for unvaccinated individuals, businesses, venue operators or hosts may choose to:
  • Provide information to all patrons, guests and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest that they are in compliance prior to entry; or

  • Implement vaccine verification to determine whether individuals are required to wear a mask; or 

  • Require all patrons to wear masks.
No person can be prevented from wearing a mask as a condition of participation in an activity or entry into a business.
The following individuals are exempt from wearing masks at all times:
  • Children under two years old; 

  • Anyone with a medical condition, mental health condition, or disability that prevents wearing a mask. This includes persons with a medical condition for whom wearing a mask could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a mask without assistance;

  • Those who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication;

  • Those for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.
(4)     San Diego County (among others) Has Aligned with California’s June 15 Changes, Mostly.  
Effective June 15, 2021, the San Diego Order of the Health Officer and Emergency Regulations (dated May 6, 2021) and any other Health Officer orders related to COVID-19 expire in San Diego County, with the exception of the following:
Individuals who have been diagnosed with COVID-19, or who are likely to have COVID-19, are subject to the Order of the Health Officer titled “Isolation of All Persons with  or  Likely  to  have  COVID-19,”  which provides in relevant part:
  • Anyone diagnosed with/likely to have COVID-19 immediately must:

    -     Isolate in their home or another residence and only leave their place of isolation to receive necessary medical care;

    -     Carefully review and closely follow all requirements of the health officer and their medical provider;

    -     Notify all persons in close contact that they should quarantine themselves for 10 days after the last contact.  Close contact exists where: within 48 hours before that person’s symptoms began (or, for asymptomatic patients, 2 days prior to test specimen collection) and until that person no longer is required to be isolated, they were within 6 feet of a person who has or is likely to have COVID-19 for a cumulative total of 15 minutes or more over a 24-hour period or had unprotected contact with the body fluids and/or secretions (meaning you were coughed or sneezed on, shared utensils or drank out of the same container, among other fluid related evens) of a person who has or is likely to have COVID-19; and

    -     Not come within 6 feet of any person, excluding a treating medical professional or a caretaker, among others.

  • Isolation immediately is required if one of more of the following exists:

    -     A confirmed positive diagnostic laboratory test for COVID-19;

    -     Signs and symptoms consistent with COVID-19; or

    -     A physician has informed the individual they are likely to have COVID-19.

  • Isolation needs to continue until one of the following:

    -     For a symptomatic person with mild to moderate illness who is not severely immunocompromised: at least 10 days have passed since symptoms first appeared AND at least 24 hours have passed since last fever (without the use of fever reducing medications) AND other symptoms have improved;

    -     For a symptomatic person with sever to critical illness or who is immunocompromised: at least 10 days and up to 20 days have passed since symptoms first appeared AND at least 24 hours have passed since last fever AND symptoms have improved;

    -     For an asymptomatic person who is not severely immunocompromised: if no symptoms throughout their infection may discontinue isolation when at least 10 days have passed since the date of their first positive diagnostic test; and

    -     For an asymptomatic person who is severely immunocompromised: may discontinue isolation when at least 10 days and up to 20 days have passed since the date of their first positive diagnostic test.  
Individuals who have had close contact with a person who either has COVID-19, or is likely to have COVID-19, will be subject to the Order of the Health Officer titled: “Quarantine of Persons Exposed to COVID-19.”  Per the order: anyone not fully vaccinated (an individual is fully vaccinated per the Order two weeks after they have received the second dose in a 2-dose series or more than 2 weeks after they have received a single dose vaccine) who is in close contact must quarantine themselves in their home or another residence for at least 10 days and up to 14 days after the last contact with a COVID-19 patient.  Asymptomatic close contacts may discontinue quarantine after Day 10 from the date of last exposure with or without testing as long as they self-monitor for symptoms through Day 14 (and self-isolate if symptoms arise).  Quarantine is not required for those who tested positive for COVID-19 within the past three months and are recovered or who are fully vaccinated.  

Los Angeles and San Francisco also have adopted the CDHP provisions.   

(5)     Can I Fire Someone Who Refuses to be Vaccinated?  I hear that’s OK in Texas . . .  
The answer in California is still “no, not without risk.”  You may have heard that a federal judge in Texas dismissed a case filed by employees who were claiming that it was unlawful (for a variety of reasons) for their hospital employer to condition their continued employment on their getting a vaccine.

As we discussed months ago, federal law provides that, at least until the vaccine is licensed, individuals must have the option to accept or decline to be vaccinated.  That’s because the FDA granted an emergency use authorization (“EUA”) for the vaccine (it could take years for the FDA to license the vaccines).  

Apparently, Texas law (don’t ask us more, we aren’t licensed to practice there) "only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker," and requiring a COVID-19 vaccine, it was determined, "is not an illegal act." 

In California, an employee can make a claim for wrongful termination in violation of public policy where, in relevant part, the employee exercised a constitutional or statutory right or privilege.  Also in California, an employer cannot retaliate against an employee who, in relevant part, refuses “to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.”  For second theory to apply, the employer doesn’t need to actually break the law. All that matters is that the employee reasonably believed that the employer did something illegal.  It remains to be seen whether a California court would find that requiring an individual to receive an EUA vaccine violates any legal right. 

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!    

©2021 Schor Vogelzang & Chung LLP
2170 Fourth Avenue • San Diego CA 92101
619 906 2400 (p) • 619 906 2401 (f) • www.svclegal.com
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