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Friday Five:
What You Need to Know This Week About COVID-19
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Dear Clients and Friends:
Did anyone think we still would be sending Friday Five COVID-19-related Newsletters in December 2021? Well here we are, and here you will find 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. 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.
On a personal note, as we complete another challenging and also wonderful year, we thank you. Having you as clients makes us better lawyers and better people, and we are grateful to you.
(1) New Mask and Vaccine 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.
Also, for any 1000+ person event, attendees must provide proof of vaccination or proof of an antigen test (taken within 24 hours) or a PCR test (taken within 48 hours). This changes the current rule which allowed for any test taken within the previous 72 hours.
Separately, there is a recommendation (not a requirement) that travelers who enter/return to California from elsewhere test for COVID-19 three to five days after arrival.
(2) Cal/OSHA Has Adopted a Revised ETS.
The Cal/OSHA advisory board has adopted the previously proposed changes to the COVID-19 Emergency Temporary Standard. The new regulations will go into effect on January 14, 2022, and will be effective through April 22, 2022, after which time it is anticipated Cal/OSHA will adopt a permanent standard. Employers will need to update their COVID-19 Safety & Prevention Plans and training materials, and ensure that their protocols align with the new requirements. The changes to the regulations are summarized below:
- Exclusion of employees with close contacts: Fully vaccinated and “naturally immune” employees (i.e., those who tested positive for COVID-19 in the past 90 days) who have a close contact (fifteen minutes spent within 6 feet or less of someone who has tested positive for COVID-19) must be excluded from the workplace unless they wear a face mask and physically distance for 14 days (if they can’t maintain 6 feet of distance, they need to be excluded, triggering exclusion pay obligations). Previously, only unvaccinated employees were required to be excluded.
For any employees that had a close contact and are not required to be excluded, companies are required to provide the employees with information about any applicable precautions recommended by the California Department of Public Health (CDPH) for persons with close contact. The current CDPH guidance for persons with close contact can be found here.
- Return-to-work timelines and protocols: Previously, employees who were excluded from work because of a close contact could return to work after 10 days had passed since the last close contact without testing, and if they were asymptomatic, there was no option to return earlier with a negative test (which was long suspected to be an oversight). The regulations provide an option for asymptomatic close contacts that the employee return sooner (after 7 days) if the employee receives a negative test taken at least 5 days after the last close contact.
The new regulations further provide that such employees may return after 10 or 7 days, so long as they wear a mask and maintain at least 6 feet of distance from others for 14 days since the last close contact. That means, if the employee returns on day 11, they will be required to wear a mask and physically distance for 4 days. If they return on day 8, they will be required to wear a mask and physically distance for 7 days. This could result in longer exclusion periods (and as a result, more exclusion pay) in the event it is not feasible for employees to physically distance at work upon their return.
In addition, Cal/OSHA removed the option to allow an employee who was excluded due to close contact and had symptoms to return earlier with a negative test. Such employees must now meet the criteria for symptomatic COVID-19 cases (At least 10 days since symptoms began, at least 24 hours have passed since the employee had a fever without medication, and symptoms have improved).
- Testing for all employees exposed to COVID-19 at work: COVID-19 testing must be available at no cost, during paid time, to all employees having a close contact, regardless of vaccination status (previously only required to provide to unvaccinated employees). “Naturally immune” employees remain exempt from this requirement. Previously, companies were required to provide testing only to unvaccinated employees who had a close contact.
Similarly, during an outbreak, testing must now be provided to all employees in an exposed group, regardless of vaccination status.
- Restrictions on tests: A COVID-19 test cannot be both self-administered and self-read, unless observed by the employer or “an authorized telehealth proctor.” Examples of approved tests include tests processed by a laboratory, proctored over-the-counter tests, and tests where specimen collection and processing either is done or observed by an employer.
- Changes to types of face coverings permitted: Permissible face coverings include surgical masks, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers that does not let light pass through when held up to a light source (except for clear face coverings worn for accommodations purposes). This means that many of the cloth masks that have been used by employees will no longer be acceptable under the new regulations.
- Expanded definition of “fully vaccinated”: Fully vaccinated means either the employee is two weeks past completion of a primary vaccine (with at least the minimum recommended interval between doses for a two-dose series), or two weeks past a second dose of any combination of two doses of a vaccine, so long as the second dose was not received earlier than 17 days after the first dose. Vaccines must be approved or emergency use authorized by the FDA, listed for emergency use by WHO (regardless of whether the vaccine was administered outside of the U.S.), or administered as part of a clinical trial under certain circumstances.
- “Worksite” definition excludes remote or isolated workers: For purposes of determining workplace exposure, a “worksite” does not include locations where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence or alternative work location chosen by the worker when working remotely.
- Screening procedures: For companies that perform onsite symptom screenings, screeners must wear a face covering, regarding of vaccination status.
- Notice procedures now align with the Labor Code notice requirements: Language in the regulations was modified to align with the notice requirements in the event of workplace exposure under Labor Code § 6409.6, including that the notice must be communicated in the manner the employer normally communicates employment-related information, include the cleaning and disinfection plan, and it must be sent to all employees (and their authorized representatives, if applicable) and independent contractors who were on the premises at the same worksite as the COVID-19 case during the high-risk exposure period.
Additional new rules apply to employer-provided housing:
- Updated ventilation requirements: The current regulations require companies to provide portable or mounted HEPA filtration units (unless there is a Minimum Efficiency Reporting Value 13 or higher filter in use), to the extent feasible, in sleeping areas in which there are 2 ore more residents who are not fully vaccinated. The new regulations require that employers comply with this requirement regardless of the number of unvaccinated employees, except that if all residents are fully vaccinated, this requirement does not apply.
- Updated testing requirements: In the event of an outbreak (3 or more positive cases in a 14-day period), the new regulations require employers to test all residents, regardless of vaccination status. Previously, the testing requirement applied only to unvaccinated residents.
- Updated quarantine requirements: In the event of an outbreak, the new regulations require that all residents that had a close contact, regardless of vaccination status, be quarantined from other residents. Previously, fully vaccinated employees were exempt from the quarantine requirement.
- Employer-provided transportation: All employees, regardless of vaccination status, must wear face coverings in employer-provided transportation, unless an exception applies. Previously, this requirement pertained only to unvaccinated employees.
(3) Updated Status of the CMS and 100+ Employer OSHA Vaccine Mandates.
- The CMS Vaccine Mandate. As outlined in our prior newsletters, the Centers for Medicaid and Medicare Services (“CMS”) issued a requirement that various Medicare and Medicaid certified providers and suppliers adopt a vaccine mandate in order to participate in Medicare/Medicaid programs. The vaccine mandate required that employees, volunteers, students, contractors, and other staff who provide services within covered facilities be fully vaccinated against the COVID-19 virus by January 4, 2022. Individuals requesting an accommodation had to do so before December 6, 2021. CMS did not include an alternative of testing in lieu of vaccination. The implementation of that CMS mandate was paused in 10 states by a Missouri federal court. A Louisiana federal court similarly blocked enforcement on a temporary basis, as it applied to all states.
On December 15, 2021 the U.S. Court of Appeals for the Fifth Circuit upheld the Louisiana district court’s preliminary injunction as applied to the 14 states that brought the motion, but rejected the nation-wide application of that injunction. The 14 states are in addition to the 10 states covered by the Missouri preliminary injunction, which was upheld by the Eighth Circuit. After this decision, the Texas District Court granted an injunction, so the injunction would apply to 25 states, and the remaining 25 states are expected to comply with the CMS mandate (for now). In response, the federal government then asked the U.S. Supreme Court to stay the Missouri and Louisiana district court preliminary injunctions that have put the CMS vaccine mandate on hold. In response, the U.S. Supreme Court has ordered the challengers from the Missouri and Louisiana CMS vaccine-mandate cases to respond to the federal government’s stay application by December 30.
This means that the CMS mandate is in effect (for the time being) in 25 states. However, according to the CMS website, CMS “has suspended activities related to the implementation and enforcement of [the mandate] pending future developments in the litigation.” For the time being, then CMS is not enforcing its vaccine mandate in any states.
- The Federal OSHA (100+ Employees) Vaccine Mandate. As you also know, the Occupational Health and Safety Administration (“OSHA”) released an Emergency Temporary Standard (“ETS”) which mandated vaccines for employers with 100 or more employees. The enforcement of the OSHA ETS was stayed by a preliminary injunction granted by the Fifth Circuit, and that case and related pending cases were consolidated in the Sixth Circuit. The federal government moved to lift the stay. On Friday, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s nationwide stay of the OSHA vaccine mandate. Last we heard, three groups of OSHA mandate challengers had already filed emergent applications with the U.S. Supreme Court to stay the OSHA mandate, and we should expect a briefing schedule from the Supreme Court on that.
Unlike CMS’s response to the judicial challenge, OSHA has annouced that it is “exercising enforcement discretion with respect to the compliance dates of the” mandate. OSHA says it will not issue citations for noncompliance with any requirements of the mandate before January 10 and will not issue citations for noncompliance with the mandate’s testing requirements before February 9, “so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.”
What this all means for you? Both 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. Please reach out and we can help developing your next steps.
(4) The Federal Government Contractor Mandate Also is Stayed, Nationwide.
As of today, three jurisdictions have granted preliminary injunctions on the federal government’s mandate that certain covered federal contractors mandate the vaccination of their employees. Decisions still are pending on preliminary injunction motions in three other state challenges to the federal contractor vaccine mandate.
(5) EEOC Updated Guidance on Whether COVID-19 is a Disability.
Here are some key questions and answerson the subject: (spoiler alert – “sometimes” it is, “sometimes” it is not. How helpful.)
- How does the ADA definition of Disability apply to COVID-19? The ADA’s three-part definition of disability applies to COVID-19 in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA if (1) the person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function)(an “Actual Disability”); (2) the person has a history or “record of” an actual disability (such as cancer that is in remission); or (3) the person is subject to an adverse action because of an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.
- When is COVID-19 an actual disability under the ADA? An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This always will be a case-by-case determination. A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA. However, depending on the specific facts involved in a particular employee’s medical condition, an individual with COVID-19 might in that case have an actual disability. The limitations from COVID-19 do not necessarily have to last any particular length of time to be substantially limiting. They also need not be long-term.
- Is COVID-19 always an actual disability under the ADA? No. The EEOC provides numerous examples of what is and is not a disability under the ADA.
- Can a person who has or had COVID-19 be an individual with a “record of” a disability? Yes, depending on the facts.
- Can a person be “regarded as” an individual with a disability if the person has COVID-19 or the person’s employer mistakenly believes the person has COVID-19? Yes, depending on the facts. The EEOC provides some example of an employer regarding a person with COVID-19 as disabled.
- If an employer regards a person as having a disability, for example by taking an adverse action because the person has COVID-19 that is not both transitory and minor, does that automatically mean the employer has discriminated for purposes of the ADA? No. For example, an individual still needs to be qualified for the job held or desired.
- Can a condition caused or worsened by COVID-19 be a disability under the ADA? Yes. In some cases, regardless of whether an individual’s initial case of COVID-19 itself constitutes an actual disability, an individual’s COVID-19 may end up causing impairments that are themselves disabilities under the ADA.
- Does an individual have to establish coverage under a particular definition of disability to be eligible for a reasonable accommodation? Yes. And remember, individuals are not entitled to an accommodation unless their disability requires it, and an employer is not obligated to provide an accommodation that would pose an undue hardship.
- When an employee requests a reasonable accommodation related to COVID-19 under the ADA, may the employer request supporting medical documentation before granting the request? Yes. The employer may either ask the employee to obtain the requested information or request that the employee sign a limited release allowing the employer to contact the employee’s health care provider directly. If the employee does not cooperate in providing the requested reasonable supporting medical information, the employer can lawfully deny the accommodation request.
- May an employer voluntarily provide accommodations requested by an applicant or employee due to COVID-19, even if not required to do so under the ADA? Yes. But beware the precedent you are setting.
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!
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