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. (This week it felt like we could create a Friday Fifty!) Below are recent developments in the law, or questions that we find ourselves answering a lot. Some of these updates are from last month, but because we continue to get lots of questions and they weren’t in our prior newsletters, we are including them now. 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) The Number One Question We Are Asked: How Do the Recent CDC Guidelines Impact California Employers; aka Can We Now Allow Vaccinated Employees to Burn Their Masks and Come to Work?
The answer is that the Centers for Disease Control (“CDC”) guidelines currently have no meaningful impact on California employers, because California’s Department of Industrial Relations’ Division of Occupational Safety and Health (“Cal/OSHA”) has imposed more stringent restrictions on California employers.
By way of background on the CDC guidance, on May 13, 2021, the CDC updated its “Interim Public Health Recommendations for Fully Vaccinated People.” Per the Interim Recommendations, “fully vaccinated” individuals (2 weeks after their second dose in a 2-dose series, such as the Pfizer or Moderna vaccines, or 2 weeks after a single-dose vaccine, such as Johnson & Johnson’s vaccine) no longer need to wear a mask or physically distance in most settings, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. Also, fully vaccinated people can refrain from quarantine and testing following a known COVID-19 exposure unless they are residents or employees of a correctional or detention facility or a homeless shelter, or unless they start showing COVID-19 symptoms after exposure. That highlighted language is the rub for Californians, because California law is not so generous, as detailed in Section (2) below.
And remember, the CDC guidelines continue to include that vaccinated individuals should cover their faces and physically distance when going to doctors, hospitals, or long-term care facilities like nursing homes; when traveling by bus, plane, train or other modes of public transportation, or while in transportation hubs like airports and bus stations; and when in prisons, jails or homeless shelters.
(2) What is California’s Position on the Mask Mandate and Vaccines; aka, Can I Allow Vaccinated Employees to Return to Work Unmasked?
Before the CDC issued its Interim Recommendations (detailed above), the California Occupational Safety & Health Standards Board (the “Cal/OSHA Board”) published proposed revisions to Cal/OSHA’s Emergency Temporary Standards, in significant part relaxing some of the more burdensome requirements. The proposed revisions were to be considered/subject to a vote on May 20, 2021. Instead, on May 20, 2021, Cal/OSHA requested that the proposed revision decision be deferred so that new revisions could be proposed, in part in light of the CDC’s May 13, 2021 guidance.
On May 28, 2021, new proposed revisions were published. On June 3, the Cal/OSHA Board recommended relaxing workplace safety rules for people vaccinated against COVID-19, as detailed below, meaning that on June 15 employees likely will be allowed to remove their masks indoors if everyone is vaccinated. Interestingly, in many ways the revised Emergency Temporary Standards actually are more stringent than those previously proposed and certainly are more stringent than the CDC Guidelines. The new Cal/OSHA rules remain subject to review by California’s Office of Administrative Law, and if approved go into effect on June 15. Cal/OSHA also is expected to publish updated FAQ, but none have been posted at this point.
Note, there was a lively debate at the Board level, and the proposed regulations nearly weren’t passed (because a majority of the Board thinks the rules should be less stringent), so stay tuned for additional relaxing of rules. The Cal/OSHA Board voted to create a committee to work with Cal/OSHA to address the concerns and work on a revision.
Here are the key provisions to date:
Mask Requirements. Indoors, if 100% of the employees in a room are fully vaccinated and no employee is experiencing symptoms, no face coverings are required. If less than 100% of employees in the room are fully vaccinated, every person must wear face coverings, including vaccinated employees. Outdoors, no face masks are required for vaccinated or unvaccinated individuals (if they have no symptoms), but unvaccinated individuals still must wear face masks if they are within 6 feet of another person.
Note that the definition for “fully vaccinated” is the employer has documentation showing that the person received, at least 14 days prior, either the second dose of a two-dose regimen, or a single dose of an FDA approved or emergency authorized vaccine. Be aware: this is a departure from the CDC definition of “fully vaccinated” set forth in Section 1 above. This means employees who have received the AstraZeneca or Sinopharm vaccines do not meet the qualifications under the Emergency Temporary Standards because these vaccines have not received FDA approval, and would have to be treated as if they were unvaccinated. Employees most likely to have received non-FDA approved vaccines are international hires and employees who may have participated in a clinical trial in the U.S. for the non-FDA approved vaccines.
This new rule inevitably raises questions about inquiring about vaccination status. Yes, you are legally entitled to ask whether an employee is vaccinated under certain circumstances. And if you are in Santa Clara County (see Section 5 below), you are required to ask. Exercise caution in making these inquiries, and also in what you do with the information gathered.
Quality of the Mask. A qualified face covering includes only a medical, surgical, or two-fabric layer mask, or respirator (meaning many currently used masks will not meet the safety standard).
Physical Distancing and Respirators. Beginning July 31, companies must provide unvaccinated employees with respirators (such as an N95 mask) for voluntary use and must comply with training (and other applicable respirator) regulations. Before July 31, companies can choose (1) to comply with this requirement now rather than wait until July 31 and forego the physical distancing requirements or (2) require physical distancing for employees indoors and at outdoor mega events. In other words, if the company provides respirators to unvaccinated employees for voluntary use and complies with the other requirements of the California Respiratory Protection regulations then:
- no physical distancing requirements need to be in place. In other words, employers can provide employees who are not fully vaccinated with respirators for “voluntary use” to avoid having to enforce six-feet physical distancing for those individuals;
- except that unvaccinated employees who are unable to wear face coverings due to a medical or mental condition or disability, or unvaccinated employees performing specific tasks that cannot be performed with a face covering, must be at least 6 feet away from others unless the unmasked person is tested at least weekly.
Free COVID Testing for the Unvaccinated. Employers are required immediately to offer free COVID-19 testing to unvaccinated symptomatic employees during paid working time, even if there is no indication that the exposure was work-related.
Continued Quarantine for Positive Tests. Fully vaccinated employees who test positive for COVID-19 must be excluded from the worksite for 10 days after the positive test, even if they are asymptomatic. Existing quarantine rules remain intact for unvaccinated employees.
Removal of Partitions. Requirements for cleanable solid partitions in fully vaccinated worksites remain intact.
Updated Training Requirements. In addition to the previous training requirements, employers will also be required to include additional topics in its employee training, with the following notable additions:
- The benefits of the COVID-19 vaccine;
- How to access COVID-19 testing and vaccination; and
- How to properly wear and fit-check respirators (will be required as of July 31, 2021 or sooner if the employer chooses to implement this requirement prior to that time).
Updated Cleaning Requirements. Employers are required to clean (but not disinfect) frequently touched surfaces. When there is a COVID-19 case in the workplace, the employer still must clean the area, materials and equipment of that person, but disinfection only is required if another employee will use the same indoor area, material, or equipment within 24 hours of the person who tested positive for COVID-19. The prohibition on sharing of personal protective equipment (PPE) and the required disinfection of shared equipment between uses has been removed.
Exclusion Pay Requirements. Exclusion pay must be paid at the regular rate of pay no later than the pay day for the pay period during which the employee is excluded. Unpaid exclusion pay is enforceable under existing unpaid wage laws, meaning employees may seek recovery of unpaid exclusion pay, including in class action lawsuits, and penalties under PAGA.
Loosening of Return-to-Work Requirements. Employees who have been in close contact with an individual who tested positive for COVID-19 and symptomatic employees can return to work with negative test after at least 10 days have passed since last exposure (rather than the date of the test under the prior rules), and if they are symptom-free for 24 hours.
No Exclusion or Testing Required for the Vaccinated After Close Contact. Fully vaccinated or naturally immune employees do not need to be excluded from the worksite after “close contact” so long as they remain symptom-free, and employers no longer need to offer COVID-19 testing to fully vaccinated employees (or those with natural immunity) who were in close contact with someone who tested positive for COVID-19.
Recordkeeping. Employers no longer are required to make tracked COVID-19 cases available to employees, and no longer are required to report serious illness or death to Cal/OSHA.
Prevention Program. Employers still are required to maintain a written COVID-19 Prevention Program and there are some changes to the requirements:
- Employers must review the California Department of Public Health’s Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments;
- COVID-19 prevention training must now include information on how effective the vaccine is at preventing COVID-19 and protecting against both transmission and serious illness or death, how employees may participate in the identification and evaluation of COVID-19 hazards in the workplace, how to wear and fit-test a respirator and the effectiveness of a respirator versus a face covering (as of July 31 or earlier, if voluntarily implemented), and how to access COVID-19 testing and vaccination.
Notification Language Requirements. Notifications related to close contacts or outbreaks must be given in a language the employee understands, and verbal notice is permissible under certain limited circumstances such as the employer has reason to believe the employee did not receive or could not understand the written notice.
Special Protections for Housing and Transportation. The Special COVID-19 prevention measures that apply to employer-provided housing and transportation no longer apply if all occupants are fully vaccinated.
(3) What Does Fed/OSHA Have to Say About All Of This? Crickets.
On January 29, 2021, the federal Occupational Safety & Health Association (“OSHA”) published its “Protecting Employees: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” Other than updates to its FAQs, since that time OSHA has provided no modification to its guidance. OSHA’s directions to employers have been to treat vaccinated and unvaccinated employees equally for purposes of evaluating and responding to potential COVID-19 hazards.
On May 18, OSHA announced that “OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated employees.” But OSHA has offered no guidance on how employers should apply the CDC guidance.
This all is against the backdrop that President Biden issued an Executive Order when he was sworn into office, directing OSHA to review its guidance for consistency with scientific information known about COVID-19 and to consider creating an Emergency Temporary Standard. That hasn’t happened, and the Emergency Temporary Standard creation seems to be on hold.
An interesting current OSHA directive is that vaccine-related adverse effects do not need to be recorded, even if employees are required by an employer to be vaccinated. This is true notwithstanding that this would be considered a work-related injury for purposes of workers compensation coverage.
(4) The EEOC has Updated its Guidance on Vaccines. The key developments are below:
Mandating vaccines as a condition for entering the workplace. The Equal Employment Opportunity Commission (“EEOC”) has taken that position that, for purposes of determining whether there is a violation of federal laws against job discrimination and harassment, employers can require that employees be vaccinated in order to physically enter the workplace, subject to reasonable accommodations required for individuals with disabilities or religious objections, as previously discussed. Please be aware: this is just one law that needs to be considered in making the determination as to mandate vaccines for entry into the workplace or for mandating vaccines more generally. Please reach out to discuss the question of whether to mandate vaccines for presence in your workplace, because there are risks under other laws to doing so. Reach out, of course, if you would like to discuss. Remember that employees may be resisting the vaccine for health or religious reasons, and (for now, per the rules applicable to emergency FDA approval) are exercising their legal right if they refuse the vaccine.
The EEOC Guidance includes examples of reasonable accommodations that an employer can consider that would allow an unvaccinated employee to come into the workplace, including wearing a face mask, maintaining social distance from others, working a modified shift, periodic COVID-19 testing, being allowed to telework or, as a last resort, reassignment to another position.
The EEOC recommends as a “best practice” that an employer mandating vaccination prior to entry to the workplace notify all employees that the employer will consider requests for reasonable accommodation based on disability or religious objection and that such requests will be considered on an individualized basis. The EEOC states that employees who cannot get vaccinated because of disability or religious objection are responsible for notifying their employer of the need for an accommodation in the form of an exemption from the mandatory vaccine requirement.
Be careful, mandating vaccines could expose an employer to a claim of disparate impact discrimination. The EEOC advises employers to consider whether a vaccine requirement may have an adverse impact on or disproportionately exclude employees based on their race, color, religion, sex, national origin, or age. For example, some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, and a vaccine mandate could therefore have a disparate impact on employees in these protected categories.
Collecting vaccine information is not automatically a discriminatory practice, even if an employer does not rely on the information. Employers who do not require that employees get the vaccine still legally may require that the employees disclose their vaccine status, so long as questions are limited to whether or not an employee is vaccinated (which can include the type of vaccine and dates administered) and do not include questions as to why an employee has not received the vaccine.
Proof of vaccination is a medical record, and subject to strict ADA confidentiality protections. In December 2020, the EEOC advised that employers could ask for proof of vaccination status from employees and further instructed employers to caution employees not to include “medical information“ with their proof of vaccination, but did not go so far as to affirm that proof of vaccination itself is confidential medical information. The EEOC has done so now. This means employers must (1) store this documentation separately from the employee’s personnel file and (2) share the information only on a limited basis. Specifically,
- Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
- First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
- Government officials investigating compliance with this part shall be provided relevant information on request.
Fully vaccinated employees may be entitled to reasonable accommodation based on an underlying medical condition, and may request an accommodation, because of a continuing concern that they face a heightened risk of severe illness from a COVID-19 infection. For example, some employees may be immunocompromised and remain concerned notwithstanding the vaccine (given the concern for its efficacy in such a case). Employers must engage in the interactive process with such employees and provide an accommodation, absent undue hardship.
Pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work. The suggestion is that pregnant employees may resist getting the vaccine for the reason of their pregnancy, and so the employer must treat pregnant employees who make this choice just as it does other disabled employees who do not get vaccinated.
(5) There are Some New Rules for Various California Counties.
Santa Clara County Requires that Employers Collect Vaccination Status. The Santa Clara County Public Health Department now requires that employers inquire about an employees’ vaccinated status. The County has created a handy form for doing so. Employers should be mindful of the EEOC’s requirements related to collection and use of this information, and consider whether this form sufficiently captures other requirements under California law.
Los Angeles County Public Health Department’s Health Officer Orders require employers to implement strict safety protocols, which include enhanced cleaning and disinfection measures, requirements for ventilation, and ongoing COVID-19 exposure assessments and management.
Los Angeles County Requires Employers to Provide Paid COVID-19 “Vaccine Leave” to Employees. Effective May 18, 2021, retroactive to January 1, 2021 and through August 31, 2021, employers of any size in Los Angeles County are required to provide supplemental paid leave to employees related to the COVID-19 vaccine. Specifically, if an employee has exhausted all available California COVID-19 Supplemental Paid Sick Leave (“SPSL”) the following time off is available:
- Full-time employees may receive up to four (4) hours of leave per injection.
- Part-time employees may receive a prorated amount of 4 hours per injection based on their normally scheduled work hours over the 2-week period prior to the injection date.
The leave is available for time spent traveling to and from the vaccine appointment, receiving the vaccine injection and/or recovering from any symptoms related to receiving the vaccine that prevent the employee from being able to work or telework. Companies may require employees to provide written verification of receipt of the COVID-19 vaccine in order to receive leave. Further, companies are required to post a written notice in a conspicuous place. The Los Angeles County Department of Consumer and Business Affairs (DCBA) is required to publish (but has not) a notice that may be used to satisfy this requirement. Companies must keep for at least 4 years payroll records necessary to demonstrate compliance with the Ordinance. Finally, companies may not retaliate against an employee for exercising their rights under the Ordinance.
(5+) Prior Developments, In Case You Missed Them . . .
California COVID-19 Supplemental Paid Sick Leave (“SPSL”) must be paid to former employees. As you know, California Supplemental Paid Sick Leave must be paid to employees retroactively to January 1, 2021, and this requirement is triggered upon the verbal or written request of an “employee.” As we discussed in our SPSL briefing in April 2021, it was unclear whether the retroactive payment obligation applied to former employees who were off work after January 1, 2021 for a covered reason, but whose employment ended prior to the enactment of SPSL. In response to a question specifically requesting clarification of this obligation, the Labor Commissioner responded: “Former employees can request retroactive Supplemental Paid Sick leave for 2021 because it was accrued while they were employed. The day(s) they took off was a day(s) on which they should have been paid if it was for a qualifying reason and they timely requested payment.”
New California COVID Rehiring Obligations in the Hospitality Industry. On April 16, 2021, Governor Newsom signed SB 93 (creating new Labor Code section 2810.8), which requires certain hospitality businesses to rehire workers who have been laid off due to the COVID-19 pandemic prior to hiring new employees to fill previously laid-off employees' positions.
The federal DOL issued additional FAQs related to COBRA and COVID under the American Rescue Plan Act of 2021. Here is the link.
The IRS released guidance regarding tax credits under ARPA. Here is a nice summary.
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!