Covid-19 Updates - Morris & Garritano Insurance

California COVID-19 Resources

For the better part of the last three years, California employers have been overwhelmed with trying to properly navigate the COVID-19 pandemic. From how to respond to positive COVID-19 cases in the workplace, complying with changes to isolation and quarantine guidance, administering additional pay and benefits for missed time from work, and complying state reporting and recordkeeping requirements.

However, over the past few months, Cal OSHA regulators and public health officials have been busy revising their stances on employer responses to the COVID-19 pandemic, finally giving employers a sigh of relief. In February 2023, Cal OSHA COVID-19 permanent regulation was approved and became effective on February 3, 2023, and will be in effect for the next two years (February 3, 2025). The statewide State of Emergency was terminated effective February 28, 2023, which was following by the California Department of Public Health (CDPH) announcing updates to several state public health orders that have guided Californians on how to best protect themselves and their families throughout the pandemic.

To keep pace with these changes, our COVID-19 toolkit and resources webpage has been updated to address the most current COVID-19 workplace safety regulations and public health guidance applicable to California employers. Should you need additional assistance, please contact our office at 805-543-6887 or email HRConsulting@morrisgarritano.com.

To access the full standard, fact sheets, FAQs, and a COVID-19 Model Prevention Procedures please visit: COVID-19 Non Emergency Regulations Resources

Additional Resources

Workplace Safety & Compliance Principles

In California, every employer has a legal obligation to provide and maintain a safe and healthful workplace for employees. Since the infectious disease is not a hazard a majority of workplaces were accustomed to controlling and the speed at which the COVID-19 pandemic continues to evolve, it has been extremely difficult for employers to reconcile new, and sometimes, conflicting guidance from federal, state, and local agencies.

When conflicts or ambiguity exists, employers should do their best to merge the most up-to-date public health measures for their specific location with workplace safety standards that will feasibly offer the highest level of protection for their staff and customers.

At the federal level, the Centers for Disease Control & Prevention (CDC) has continuously updated guidance on COVID-19 safety measures for individuals, businesses, and communities. The CDC has very narrow enforcement authority especially when it comes to workplaces. The public health authority is mainly delegated to the States with state public health departments typically following suit with the CDC. However, some states may implement additional measures like California Department of Public Health (CDPH), who has historically issued statewide (mandatory) or guidance (advisory) orders, so be sure to sign up to receive CDPH Policy Alerts. County public health departments then have the same authority to either issue orders or guidance based on what is happening locally. Additional measures may also be required at the city level, so California employers should follow updates closely at the federal, state, and local levels to ensure full compliance.

covid toolkit graph of command hierarchy

Cal OSHA Permanent Standard Resources

COVID-19 Non-Emergency Regulations

On December 15, 2022, the California Occupational Safety and Health Standards Board voted to adopt non-emergency, permanent COVID-19 prevention regulations. These regulations took effect on February 3, 2023 and will remain in effect for two years after the effective date (February 3, 2025), except for the recordkeeping subsections that will remain in effect for three years.

These permanent regulations include some of the same requirements found in the COVID-19 Prevention Emergency Temporary Standards (ETS), as well as new provisions aimed at making it easier for employers to provide consistent protections to workers and allow for flexibility if changes are made to guidance in the future from the California Department of Public Health.

Note: These regulations apply to most workers in California who are not covered by the Aerosol Transmissible Diseases standard.

To access the full standard, fact sheets, FAQs, and a COVID-19 Model Prevention Procedures please visit:

COVID-19 Prevention Non-Emergency Regulations | Resources

Notable Changes in Permanent (Non-Emergency) Standard Include:

Key Provision	Change Description
Duration	The permanent regulation will be in effect for two years from the effective date, but employers must maintain specific records for three years after the effective date.
Definitions	The permanent regulation makes changes to definitions related to COVID-19, such as “Close Contacts,” “Infectious Period,” and “Returned Case.” These changes are consistent with recent updates made by the California Department of Public Health (CDPH) – and the regulation will continue to defer to future agency definition changes in key areas in the future. Employers should regularly review the most up-to-date guidance from the California Department of Public Health for the current definitions.
Written Programs	The permanent regulation provides that COVID-19 is a workplace hazard and shall be addressed as part of an employer’s required Injury and Illness Prevention Program (IIPP). Employers can choose whether to incorporate their COVID-19 procedures in the written IIPP or maintain a separate document.
Employee Training	Employees shall receive training regarding COVID-19 in accordance with the regular standards for training under the general IIPP regulation. Employers should train employees on the requirements of the new regulation.
Daily Screening	The permanent regulation does not require employers to develop and implement a process for screening employees for COVID-19 symptoms. Instead, employees shall be encouraged to report COVID-19 symptoms and to stay home when ill.
Exclusion Pay	The permanent regulation does not require employers to maintain an employee’s earnings and benefits when they have been excluded for covered COVID-19-related reasons (exclusion pay). Employers should still be aware of other federal, state, or local laws that may provide paid time off for employees under these circumstances, as well as any employer policies or collective bargaining agreement provisions that may provide for paid leave.
Notice Requirements	Employers are required to notify employees and independent contractors who had a close contact, as well as any employer with an employee who had a close contact. Notice shall be provided “as soon as possible” and in no case longer than the time required to ensure that any exclusion requirements are met.
Workplace Notice of COVID-19 Cases	When it comes to the required notice to all employees at a worksite where a COVID-19 case was present, there is some much needed flexibility. The previous ETS required employers to provide written notice to all employees present at a worksite during the infectious period of a COVID-19 case. However, legislation effective January 1, 2023 (AB 2693) authorizes employers to display a workplace notice in lieu of individual notification. This notice must be posted within one business day and must be posted for at least 15 days. If the employer posts other workplace notices on an existing employee portal, the notice shall be posted on the employee portal. The notice must be in English, and the language understood by the majority of employees. As an alternative to this workplace notice, an employer may provide individualized written notice. Employers must also continue to provide notice of COVID-19 cases and close contacts to exclusive representatives (labor unions). The permanent regulation defers to these statutory notice requirements for the content and form of these notices, meaning employers will have the option of providing a workplace posting or providing individual notice in writing.
Recordkeeping and Reporting Requirements	The permanent regulation deletes previous requirements that employers had to report information about COVID-19 cases and outbreaks to local public health departments. While this reporting is not part of the Cal/OSHA permanent regulation, local public health orders may require such reporting. In addition, major outbreaks must be reported to Cal/OSHA (a new requirement). Employers are required to keep a record of and track all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of the positive test or diagnosis. Such records must be kept during the duration of the regulation (two years). The permanent regulation no longer requires employers to keep records of close contacts. In addition, employers must retain records of notices of COVID-19 cases required by the permanent regulation or the Labor Code and must maintain such records for three years after the effective date or the regulation. Personal identifying information on COVID-19 cases or employees with symptoms (and any employee medical records) must be kept confidential. Unredacted information shall be provided to local public health departments, CDPH, Cal/OSHA and NIOSH immediately upon request.
Outbreak Protocols	The permanent regulation provisions applicable to outbreaks and major outbreaks are now collapsed into one section. These requirements include making immediate testing available to employees in the exposed group (and weekly thereafter) during an outbreak and mandating required twice weekly testing during a major outbreak. The permanent regulation also makes the following notable changes: The outbreak and major outbreak requirements apply until there are “one or fewer” new COVID-19 cases detected in the exposed group for a 14-day period. This is an improvement over the ETS, which applied the outbreak requirements until there were “no” new cases. The permanent regulation contains a new reporting requirement that was not contained in the ETS. Specifically, an employer is required to report a major outbreak to Cal/OSHA, but the permanent regulation does not specify a time period for doing so. The ETS required employers in an outbreak scenario to merely “evaluate” whether to use HEPA air filters. However, the permanent regulation now specifically requires the employer to use HEPA filters in indoor areas occupied by employees for extended periods, where ventilation is inadequate to reduce the risk of transmission.
Employer-Provided Housing	Employers shall assign employee housing to cohorts that travel and work together, separate from other workers. To the extent feasible, residents who usually maintain a household together shall be housed in a single housing unit without other persons.
Employer-Provided Transportation Requirements	The permanent regulation largely eliminates most of the specific employer-provided transportation requirements and instead merely directs employers to comply with the general regulation requirements within a vehicle. To the extent feasible, employers shall assign transportation such that cohorts travel and work together, separate from other households.

Isolation & Quarantine Guidance

The COVID-19 Prevention regulations’ required exclusion periods for employees with COVID-19 are the same as CDPH’s recommended isolation periods for positive COVID-19 cases. For exclusion requirements, please review CDPH Isolation and Quarantine for guidance to ensure your compliance.

Employer Response

Investigating and responding to a COVID-19 case in the workplace includes the following:

Determining when the COVID-19 case was last in the workplace, and if possible, the date of testing and onset of symptoms.
Determining which employees may have been exposed to COVID-19 through a close contact.
Providing written notification to all employees (and, if applicable, their union representatives) and independent contractors who were at the worksite at the same time as the COVID-19 case during the infectious period of any potential exposures within one business day (and notifying any other employer who has potentially exposed employees in the workplace).
Making COVID-19 testing available to potentially exposed employees with a close contact at no cost and during working hours, with the exception of asymptomatic employees who recently recovered from COVID-19 (returned cases).
Excluding COVID-19 cases from the workplace until they are no longer an infection risk and implementing effective policies to prevent transmission after close contact. Please refer to the section in this FAQ on CDPH’s Isolation and Quarantine Guidance.
Investigating the exposure, whether workplace conditions could have contributed to the risk of exposure, and what corrections would reduce exposure.

Testing & Masking

Testing

COVID-19 Testing Requirements | Scenario Chart & Definitions

COVID-19 Prevention Non-Emergency Regulations | Testing FAQs

In whatever way testing is arranged, employers must ensure it is done on paid time and employees do not incur any costs for COVID-19 testing required by the COVID-19 Prevention regulations.

Employers may require employees to undergo COVID-19 testing under certain circumstances. Please refer to the Civil Rights Department’s FAQ on the topic for further information.

Masking

Guidance for Face Coverings | CDPH

COVID-19 Prevention Non-Emergency Regulations | Face Coverings & PPE FAQs

Please note that nothing within the Cal/OSHA Prevention Non-Emergency Regulations is intended to limit more protective or stringent state of local health department mandates or guidance. Hence, employers in local jurisdictions with an indoor mask requirement will still need to comply with those local mandates, depending on the terms of those ordinances. Please visit your local COVID-19 CA County Website for more information.

Respirators

The Cal/OSHA Prevention Non-Emergency Regulations states:

Upon request, employers shall provide respirators for voluntary use in compliance with subsection 5144(c)(2) to all employees who are working indoors or in vehicles with more than one person.

Where there is a major outbreak, employers shall provide respirators to all employees in the exposed group for voluntary use.

“Respirator” means a respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.

KN95 & KF94 masks are not NIOSH-approved.

There are additional compliance considerations even when offering respirators on a voluntary basis. When adhering to the voluntary N95 respirator use provisions follow these 4 Easy Steps to be Safe & Compliant. Additional training resources can be found here: Voluntary Use of Filtering Facepiece Respirators Training Video

For those industries and workplaces with harmful exposure requiring the use of respirators, please refer to the Cal/OSHA Respiratory Protection in the Workplace – A Guide for Employers.

Multiple COVID-19 Infections & Outbreaks

Outbreak Requirements

Workplace Outbreak

When 3 or more employee COVID cases in an “exposed group” visited the workplace during their “infectious period” at any time during a 14-day period, or as otherwise defined by CDPH definition.

Major* Workplace Outbreak

If 20 or more employee COVID cases in an “exposed group” visited the workplace during their “infectious period” within a 30-day period.

*Major outbreaks are now required to be reported to Cal/OSHA.

Please refer to the COVID-19 Prevention Non-Emergency Regulations | Outbreak FAQs

Reporting & Record Keeping

Reporting

Exposure Notices

Employers must comply with several regulations including California Code of Regulations, Title 8, Section 3205 and CA Labor Code 6409.6. as amended by AB 2693, with respects to providing written notice of COVID-19 exposure in the workplace.

Should a workplace exposure occur, an employer must provide:

GENERAL NOTICE
1. Provide written notice within one business day to all employees, independent contractors, and other employers who were on the premises at the same worksite as the COVID-19 case during the infectious period.
2. The notice shall be written in a way that does not reveal any personal identifying information of the COVID-19 case, and in the manner, the employer normally uses to communicate employment-related information.
3. Prominently displayed in all places where notices to employees concerning workplace rules or regulations are customarily posted (including on employee portals).
  1. Should you employ an employee population that has limited access to on-site facilitates, the regulation allows employers to provide the notice in a manner the employer normally uses to communicate employment-related information which may include, but is not limited to, personal service, email, or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees.
4. Remain posted for no less than 15 calendar days,
5. Be provided in English and the language understood by the majority of employees. 6(a)(4). If the employer should reasonably know that an employee has not received the notice or has limited literacy in the language used in the notice, the employer shall provide verbal notice, as soon as practicable, in a language understandable by the employee.
6. An employer shall keep a log of all the dates the notice required by this section was posted at each worksite of the employer and shall allow the Labor Commissioner to access these records.
7. The written notice that contains the following required information:
  1. The dates on which an employee, or employee of a subcontracted employer, with a confirmed case of COVID-19 was on the worksite premises within the infectious period.
  2. The location of the exposures, including the department, floor, building, or other area, but the location need not be so specific as to allow individual workers to be identified.
  3. Contact information for employees to receive information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, and options for exposed employees, including COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as an employee’s anti-retaliation and anti-discrimination protections.
  4. Include contact information for employees to receive the cleaning and disinfection plan that the employer is implementing per CDC guidelines and under the Cal/OSHA COVID-19 Emergency Temporary Standards COVID-19 prevention program.
  5. The notice shall include the cleaning and disinfection plan required by Labor Code section 6(a)(4).
CLOSE CONTACT NOTICE
1. In additional to the general notice requirements above, employers must also provide written notice to all close contacts within one business day as required by Labor Code section 6(a)(2) and (c) that must include additional information on testing and the benefits available to them.

Notification & Claim Filing to Workers’ Compensation

Assembly Bill (AB) 1751 extends the COVID-19 reporting requirements first put into place by Senate Bill (SB) 1159 until January 1, 2024.

SB 1159 established a rebuttable presumption that illness or death resulting from COVID-19 is compensable for front-line workers and employees who contract COVID-19 due to a workplace outbreak. The law also imposes strict notification requirements of all positive COVID-19 cases to your workers’ compensation claims administrator.

If an employee tests positive within 14 days after working at the employer’s location and is a Frontline or Healthcare worker as defined by the bill, the employer must provide the employee with a DWC-1 Claim Form and report the claim to their workers’ compensation carrier if the employee completes the DWC-1 Claim Form or communicates that it is work-related.

All other places of employment that have five or more employees are subject to a presumption triggered by a workplace “outbreak” as defined in the bill. When an employer knows or reasonably should know that an employee has tested positive for COVID-19, they must notify their workers’ compensation carrier within three business days.

We have included a flowchart on the next page for proper handling.

For more analysis, please refer to our SB 1159 Resource Page

CA SB 1159 and Claim Reporting Flowchart

Industry Mandates

Verification

Vaccine Verification Process

Should a company want to implement a COVID-19 Vaccine Verification process, here is our COVID-19 Employee Vaccination Status Verification Process Toolkit. This toolkit offers several tools we developed (i.e., sample staff communications, verification form, and excel log) to assist you in your operations. Each template is simple to use, and you can doctor them to your business’s preference. The goal is to put something in writing as to what your policy is and how you plan to enforce it.

Proof of Vaccination

Acceptable forms of proof of vaccination may include but are not limited to:

COVID-19 Vaccination Record Card (issued by the Department of Health and Human Services Centers for Disease Control & Prevention or WHO Yellow Card1) which includes the name of the person vaccinated, type of vaccine provided, and date doses administered); OR
A photo of a vaccination card as a separate document; OR
A photo of the client’s vaccine card stored on a phone or electronic device; OR
Documentation of vaccination from a healthcare provider; OR
Digital record that includes a QR code that when scanned by a SMART Health Card reader displays to the reader client name, date of birth, vaccine dates, and vaccine type; OR
Documentation of vaccination from other contracted employers who follow these vaccination records guidelines and standards.

Federal Mandates

CMS mandate:

Federal employee mandate:

Federal contractor mandate:

California Mandates

All current and past guidance and health orders from the California Department of Public Health can be accessed here and are arranged by topic: Find All Guidance
These documents are updated regularly. Sign up to receive alerts for updates to California state public health officer orders and public health mandates related to COVID-19 in 14 languages.

Establishing a Company Vaccine Mandate

As explained by the California Civil Rights Department, an employer may require employees to receive an FDA approved vaccination against COVID-19 infection so long as the employer: does not discriminate against or harass employees or job applicants on the basis of a protected characteristic; provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices; and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

If you plan to implement a COVID-19 Vaccine Mandate, below are some best practices and HR positions to consider:

Ensure that your mandatory vaccination policy applies to all employees.
Address Supplemental Pay options and determine when employees are entitled to be paid for time taken to receive the vaccine or to recover from side effects from receiving the vaccine and expenses.
1. 1. 1. Please note: There is a patchwork of laws that employers must navigate in California that apply to employee compensation in this regard. California employers must also review local requirements to pay for employees’ time to receive the vaccine and to recover from any side effects.
    2. Review and conduct appropriate reasonable accommodations to employees (i.e., medical and religious exemptions).
Review and conduct appropriate reasonable accommodations to employees (i.e., medical and religious exemptions).
Determine what type of proof of vaccination the company will require.
Develop protocols on how proof of vaccination will be kept and who within the company will have access to the confidential information and should be kept separate from personnel records.
Be prepared to deal with employee refusals and examine how your business will handle these cases.
Set forth COVID-19 testing requirements and explain that vaccinated employees may be subject to testing requirements in the future.
Contact your Risk Advisor about considering an Employment Practices Liability Insurance (EPLI) insurance policy. These policies protect your business against employment-related lawsuitsmade by potential hires, current employees, and former employees. These claims can vary from discrimination, sexual harassment, or even wrongful termination that may arise when implementing COVID-19 Vaccine Mandates.

Should you be an employer interested in establishing a COVID-19 vaccine mandate, please contact our HR Services team who can provide you with the personalized resources to help implement and facilitate this process. For guidance on this topic, employers may wish to refer to information provided in the following FAQ resources provided by the federal Equal Employment Opportunity Commission (EEOC) and the California Civil Rights Department at the following webpages:

Pay & Leave Table

COVID-19 Pay and Leave Table

Resources Appendix

EXAMPLE FORMS & TEMPLATES

Federal and State of California Resources

Work Accommodation

Mineral Resources

For those with Mineral access, resources and materials are available online to help you navigate the new legal requirements and manage your workforce during this crisis. We recommend checking their site frequently for updates.

If you do not currently have a Mineral account, we have provided the below links to federal and state resources, law summaries, tools, sample policies, and general guidance. To request access to Mineral or to learn more about its complimentary services, please click here or email HRConsulting@morrisgarritano.com