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Friday Five:
What You Need to Know This Week About COVID-19
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Dear Clients and Friends:
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. We can help you navigate the confusion of so many rules and recommendations for your unique work community. And if you are curious about our prior Friday Five or other Newsletters, you will find them here.
(1) Employer Notice Obligations Related to COVID-19 Exposure Have Been Clarified.
Under existing California law, when an employer receives notice of a potential COVID-19 exposure, the employer must within one business day provide certain employees with written notice of (1) the potential exposure, (2) COVID-19-related benefits, and (3) the Company’s disinfection and safety plans. Recent legislation modifies the timing by which employers must notify local public health agencies. Specifically, instead of providing notice of outbreaks within 48 hours, employers must provide notice “within 48 hours or one business day, whichever is later.” (Think intervening weekend.) The new law is effective immediately.
The new law also expands the list of employers that are exempt from the reporting requirements to various licensed entities, including health facilities, community clinics, federally qualified health centers, chronic dialysis clinics, home health agencies, pediatric day health and respite care facilities, hospices, adult day health centers, community care facilities, residential care facilities for the elderly and those with chronic life-threatening illnesses, child day care facilities, intermittent clinics, tribal clinics and outpatient settings, rural health clinics, and companies that provide health care services and have employees licensed pursuant to Division 2 of the Business and Professions Code (“Healing Arts”). Previously, it exempted only “health facilities.”
Let us know if you need any help updating your COVID-19 Prevention Plan.
(2) Los Angeles County Has Issued Expansive Face Mask and Vaccine Requirements.
On September 28, 2021, Los Angeles County issued a new Public Health Order. We are capturing the highlights below, with particular emphasis on the obligations of employers and employees.
Face Mask Requirements (some of these may not be new). Individuals, businesses, venue operators or hosts of public indoor settings, venues, gatherings, and businesses, and Outdoor Mega Events must:
- Require all patrons, customers, and guests to wear masks when inside at all indoor settings and at Outdoor Mega Events, regardless of their vaccination status; and
- Post clearly visible and easy to read signage, with or without having an employee present, at all entry points for indoor and outdoor settings to communicate the masking requirements for patrons, customers, and guests.
Exceptions include when the individual is:
- Actively eating or drinking, which is the limited time during which the mask can be removed briefly to eat or drink, after which it must be immediately put back on. Patrons, customers, or guests must be seated at a table or positioned at a stationary counter, ticketed seat, or place while actively eating or drinking;
- Showering or engaging in personal hygiene or a personal care service that requires the removal of the face mask; or
- Alone in a separate room, office or interior space.
Special considerations are made for people with communication difficulties or certain disabilities.
Testing requirements: In workplaces, certain employees may be exempt from wearing a mask when performing specific tasks which cannot feasibly be performed while wearing a mask. This exception is limited to the period of time in which such tasks are actually being performed. Workers who cannot feasibly wear a mask while performing their work must be tested for COVID-19 at least twice per week, unless the employer is provided proof of the employee's full vaccination against COVID-19 or proof of recovery from laboratory-confirmed COVID-19 within the past 90 days against COVID-19.
Reporting requirements: If there are 3 or more cases of COVID-19 among employees within a span of 14 days, the employer must report this outbreak to the Department of Public Health at (888) 397-3993 or (213) 240-7821, or online at www.redcap.link/covidreport.
There also are new requirements for proof of vaccination status and test results of patrons and employees:
Mega Events (Indoor 1,000 or more people, Outdoor 10,000 or more people):
- Must verify full vaccination status or pre-entry negative test taken within 72 hours of all attendees 12 years and older. Self-attestation of vaccination status or testing results is no longer an acceptable form of proof. For Outdoor Mega Events, must cross-check proof of vaccination or negative test against a photo ID for attendees 18 years and older.
- Attendees must wear a face mask at all times except when actively eating or drinking. For Outdoor Mega Events face masks must be made available to attendees.
- Indoor Mega Events must prominently place information on all communications, including reservation and ticketing systems, to ensure guests are aware of the proof of pre-entry negative testing or full vaccination status, including masking requirements, and acceptable modes of verification. Outdoor Mega Events Must prominently place information on all communications, including reservation and ticketing systems, to ensure guests are aware of both the County Health Officer's Order that all persons must wear a face mask while in attendance and the County Health Officer requirement that all attendees, ages 12 and older, either be fully vaccinated against COVID-19 or obtain a negative COVID-19 viral test prior to attending the event.
Bars, Breweries, Wineries, Distilleries, Nightclubs and Lounges:
- Patrons Indoors: Patrons 12 years or older must provide proof of their COVID-19 vaccination status for entry. Between October 7 and November 3, 2021, all patrons must provide proof they have received at least one dose of COVID-19 vaccination. Beginning November 4, 2021, all bars, breweries, wineries, and distilleries must require patrons, who are 12 years of age or older, to provide proof of full vaccination against COVID-19.
Exceptions: Individuals who do not provide proof of vaccination and who are wearing a face mask may go indoors under the following circumstances: (1) When making a delivery or pick-up as part of their employment, providing a service or repair to the facility, or for emergency or regulatory purposes; (2) To get to the outdoor portion of the facility or to use the restroom; or (3) To order, pick-up, or pay for food or drink to-go.
- Patrons Outdoors: Patrons who do not provide proof of vaccination against COVID-19 may be served in and use the outdoor portions of the facility, and may enter the indoor portion if an exception applies.
- Employees: Employees working onsite must provide proof of full vaccination by November 4, 2021, unless exempt based on Qualifying Medical Reasons or sincerely held religious beliefs. Those who are exempt must: (1) test at least once per week with a PCR or antigen test that is FDA approved or Emergency Use Authorized; and (2) wear a surgical mask or higher-level respirator approved by the National Institute of Occupational Safety and Health (NIOSH), such as an N95 filtering facepiece respirator, at all times while in the bar, brewery, winery, distillery, nightclub or lounge.
- These facilities must comply with the Guidance for Verifying Proof of COVID-19 Vaccination and Guidance for Verifying Proof of a Negative COVID-19 Test.
- Additional posting encouragement: The owner, manager, or operator of any facility that is likely to be impacted by this Order is strongly encouraged to post a copy of this Order onsite and download, review and implement all applicable Best Practice Guidance.
Restaurants: The order “strongly recommends” (but does not mandate) that restaurants reserve and prioritize indoors eating and service for patrons who are fully vaccinated against COVID-19, and “should” (not “must” like the other categories) verify the full vaccination status of all patrons 12 years and older who will be seated indoors. Patrons who cannot provide proof of full vaccination should (not must) be served in outdoor portions of the restaurant.
Posters and notices created by the county for use by covered businesses can be found here and the County’s FAQ page can be found here.
(3) To Confuse Matters: The City of Los Angeles Has Adopted LACounty’s Vaccine Requirements, and Separately Has Issued Its Own Vaccine and Testing Requirements.
Effective November 6, 2021, the City of Los Angeles will require that patrons (any "Individual Eligible to Receive a COVID-19 Vaccine" who enters, patronizes, attends an event, or purchases goods or services at a covered business or Outdoor Large Event) entering indoor portions of businesses in four categories of establishments (including food and beverage, gyms and fitness, entertainment and recreation, and personal care, as well as government buildings) be fully vaccinated against COVID-19. “Indoor portion” means any part of a covered business with a roof or overhang that is enclosed by at least three walls, except a structure on the sidewalk or roadway if it is entirely open on the side facing the sidewalk or an outdoor dining structure for individual parties, such as a plastic dome, if it has adequate ventilation to allow for air circulation.
Covered businesses must verify full vaccination status: Patrons of covered businesses will be required to provide proof of COVID-19 vaccination upon the first in-person interaction with staff. The company is required to cross-check the proof of vaccination against a photo ID of any patron that appears to be 18 years or older.
Requirements for Certain Outdoor Events: The ordinance requires patrons to show proof of vaccination or a negative COVID-19 test before entering outdoor events with 5,000 to 9,999 attendees (which is a lower threshold than the County’s vaccine requirement discussed above).
Additional requirements for patrons with exemptions based on medical reasons or sincerely held religious beliefs: Patrons who provide a self-attestation that they have a medical condition or sincerely held religious belief that qualifies the patron for an exemption must use the outdoor portion of the covered business if such use is available. If outdoor use is not available, the patron may use the indoor portion of the business if they provide proof of negative COVID-19 test and photo identification.
Exceptions: The vaccine verification and testing requirements do not apply to patrons entering the indoor portion for brief visits to use the restroom, order, pick-up, pay for food or drink to-go, or to perform necessary repairs, so long as they wear a well-fitting mask at all times while indoors.
Covered businesses may continue to offer outdoor services to patrons regardless of whether they provide proof of vaccination, such as curbside pickup, drive thru, delivery, and outdoor seating and dining.
Posting and recordkeeping requirements: Covered businesses must post a notice advising patrons that proof of vaccination will be required to enter indoor areas. Covered businesses also must develop and keep a written record describing their protocol for implementing and enforcing the ordinance’s requirements.
Deadlines for compliance with the requirements in the order will be clarified in guidance that will be released by the health department. NOTE: Businesses that are covered under both the County and City’s orders should comply with the strictest requirements.
(4) If/When Federal OSHA Issues a Vaccine Mandate for Companies with 100 or more Employees, Expect California to Follow Suit. According to recently updated Cal/OSHA FAQs:
Q: If federal OSHA adopts a standard obligating employers with 100 or more employees to require COVID-19 vaccines or weekly testing, what will happen in California?
A: As a “state plan state,” California is required to adopt occupational safety and health standards “at least as effective” as federal OSHA’s. If federal OSHA adopts a standard obligating employers with 100 or more employees to require either vaccines or weekly testing for employees, the State will have 30 days after the date of promulgation of the federal standard to adopt a comparable standard.
(5) Employees May Retroactively Request CA-SPSL for a Covered Reason for Time Taken From January 1, 2021 – September 30, 2021, Notwithstanding the September 30 Expiration of CA-SPSL.
The California Labor Commissioner recently advised that “[a]fter September 30, workers who were not paid the [supplemental paid sick leave ("SPSL")] they were entitled to when they were unable to work in 2021 due to COVID-19 can still request pay from their employer or file a claim with the Labor Commissioner.” The Cal/OSHA FAQs were updated to address this statement:
Q: How does Labor Code section 248.2, the 2021 COVID-19 Supplemental Paid Sick Leave law interact with the ETS?
A: From January 1, 2021 to September 30, 2021, the COVID-19 Supplemental Paid Sick Leave law required employers with 26 or more employees to provide workers up to 80 hours of supplemental paid sick leave (SPSL) for certain COVID-19 related reasons. If workers took unpaid time off due to COVID-19 in 2021, they might still be able to request pay after September 30 for time off taken prior to that date.
The FAQs remind employers that the Emergency Temporary Standards still require employers to provide paid exclusion leave to employees who are excluded from work due to a workplace exposure.
Errata
Apologies for an error in our last newsletter (and thank you to an eagle-eyed reader!): Effective November 14, 2021 (not December 8, 2021) “Covered Contracts and Contract-like Instruments” must include a clause related to vaccine and mask mandates for federal contractors that the federal contractor and any subcontractors must incorporate into lower-tier subcontracts. Here is a link to our last newsletter and a more detailed explanation.
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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