COVID-19 Updates

Tools to Handle the Current Environment

With the growing rates of infection as new variants of the COVID-19 virus surge across the nation, here is what you need to know to keep your workplace compliant with current mandates and safety standards.

Disclosure: Topic recommendations and sample templates are created to ease your business processes and includes a blended approached to encompass a variety of local, state, and federal COVID-19 requirements Please be sure to continuously check with your local, state, and federal guidelines to ensure your compliance with all COVID-19 Public Health orders and regulations. The information contained in this document is not to be construed as legal advice and is not meant to be a substitute for legal advice. Morris & Garritano makes no representations or warranties, express or implied, guarantees, or conditions of compliance with applicable laws or regulations and such compliance is ultimately the responsibility of the employer.

COVID-19 Illness Response Flowchart

covid-19-illness-response-flowchart

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.

The Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA is the governing body that enforces workplace safety standards and has the authority to issue fines and closures for non-compliance. Cal/OSHA approved emergency temporary standard (ETS) on COVID-19 infection prevention back in November of 2020 and has readopted the standard for a third time, with the most recent revisions going into effect on May 6, 2022. This emergency standard is law in California and should be followed as closely as feasibly possible. The current version of the ETS is in effect until December 31, 2022, at which point the Occupational Safety and Health Standards Board will likely determine the need for a permanent standard.

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 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.  State public health departments typically follow suit with the CDC as has the California Department of Public Health (CDPH); however, states may implement additional measures.   The CDPH can issue statewide orders (mandatory) or guidance (advisory). 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.

With so many changes – and likely more on the horizon – 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 Covid-19 Emergency Temporary Standard (ETS) Resources

On April 21, the Occupational Safety and Health Standards Board readopted the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) for the third time. These emergency standards include important revisions to make the workplace rules consistent with the latest requirements and recommendations from the California Department of Public Health (CDPH). The third readoption of the emergency standard take effect on May 6, 2022, and apply to most workers in California not covered by the Aerosol Transmissible Diseases standard.

 

Key Changes Effective May 6, 2022:

“COVID-19 Test” – has been amended to provide that, to meet the return-to-work criteria, a test may be both self-administered and self-read only if another means of independent verification of the results can be provided (such as a time-stamped photograph of the results).

“Fully Vaccinated” – The definition of “fully vaccinated” has been deleted. This is largely in response to the fact that the face-covering provisions of the ETS no longer make a distinction between fully vaccinated employees and unvaccinated employees. However, you should keep in mind that vaccination status may still be relevant for other purposes, including under local public health orders.

“Returned Case” – The new language contains a new defined term of “returned case” to largely describe employees who previously had COVID-19 and now have natural immunity. “Returned case” is defined to mean a COVID-19 case who returned to work and did not develop any COVID-19 symptoms after returning. A person shall only be considered a “returned case” for 90 days after the initial onset of symptoms or the first positive test (if no symptoms developed). If a period of longer than 90 days is recovered by CDPH, that period shall apply.

Terminology changes from “high-risk exposure period” to “infectious period”.

“Face Coverings” – has been amended to delete the requirement that light does not pass through the mask when it is held up to a light source.

Testing of All Symptomatic Employees

Under the previous ETS, employers only need to make testing available to those employees with COVID-19 symptoms who are not fully vaccinated. The new language eliminates this limitation, meaning you will have to offer testing to all employees with COVID-19 symptoms regardless of vaccination status. This could significantly increase testing costs, so you should have a plan in place to comply with this testing obligation.

Respirators Now Must Be Offered to All Workers

The previous ETS requires employers to provide respirators for voluntary use to all unvaccinated employees upon request. The new language eliminates the linkage to unvaccinated employees. Therefore, you will be required to provide respirators upon request to all employees, regardless of vaccination status.

Face Coverings No Longer Mandatory for Unvaccinated Workers

The new language confirms the ETS to recent developments regarding face coverings. After CDPH changed its face covering guidance to no longer require masks indoors regardless of vaccination status Governor Newsom issued an Executive Order striking the ETS language that required employers to provide and ensure face coverings were worn by unvaccinated employees. The new amended ETS language reflects these changes.  You should keep in mind that other face-covering provisions of the ETS remain in effect. This includes language that allows employees to voluntarily wear face coverings unless it would create a safety hazard.

The new language also deletes the requirement that employees who are exempted from any applicable face-covering requirement (such as returning to work following a case or close contact) maintain six feet of social distance from others or be tested weekly. Now the language will merely require such employees to be tested at least once a week.

Cleaning and Disinfection Rules Eliminated

The current ETS requires employers to implement specified cleaning and disinfection procedures, including regularly cleaning frequently touched surfaces and objects. The new language eliminates these requirements in their entirety.

Exclusion and Return-to-Work Criteria Streamlined

The new language generally eliminates any specific language in the ETS regarding “close contacts” and instead merely cross-references CDPH guidance, simply requiring you to review current guidance and develop policies to prevent transmission by close contacts. It also deletes specific return-to-work criteria for close contacts, meaning you will simply follow the current CDPH and/or local quarantine guidance.

New Obligations if COVID-19 Outbreaks Occur

The new changes to the ETS section on multiple COVID-19 infections and outbreaks generally make conforming changes to reflect the amendments to the ETS described above. However, the new language also makes the following changes:

During an outbreak (defined as 3 positive cases over a fourteen-day period), employees who had close contacts shall have a negative COVID-19 test taken within three and five days after the close contact or shall be excluded and follow the return-to-work criteria of the ETS.

During an outbreak, an employer shall evaluate whether to implement social distancing. Where six feet of social distancing is not feasible, the employer shall evaluate implementing as much distance as possible between persons (as opposed to the previous language which requires consideration of the use of cleanable solid partitions).

Testing Required After Major Outbreaks

Under the previous ETS language, an employer must make COVID-19 testing available to all employees in the exposed group at least twice a week during a major outbreak (defined as twenty positive cases over a thirty-day period).  The new language clarifies that employers are required to do so in such situations. Employees in the exposed group shall now be tested or shall be excluded and follow the return-to-work requirements of the ETS.

Isolation & Quarantine Guidance

On April 6, 2022, the California Public Health Department issued updated guidance for isolation and quarantine.  One major change now treats all close contact the same, regardless of vaccination or booster status (for the general public).  They also added recommendations for work exclusion or restriction in certain specified high-risk settings.

The third re-adoption of the Cal OSHA ETS generally eliminates any specific language in the ETS regarding “close contacts” and instead merely cross-references CDPH guidance, simply requiring you to review current guidance and develop policies to prevent transmission by close contacts. It also deletes specific return-to-work criteria for close contacts, meaning you will simply follow the current CDPH and/or local quarantine guidance.

On June 8, 2022, the California Department of Public Health (CDPH) issued an Order (June 8th Order) re-defining “Close Contact” and “Infectious Period” for purposes of the CDPH’s April 6th Isolation and Quarantine Guidance. Under the third re-adoption of ETS, any applicable definition changes by way of CDPH order, are automatically incorporated into the Cal/OSHA standard.

Under the June 8th Order, close contact is defined as:

someone sharing the same indoor airspace (e.g., home, clinic waiting room, airplane etc.) for a cumulative total of 15 minutes or more over a 24-hour period (for example, three individual 5-minute exposures for a total of 15 minutes) during an infected person’s (laboratory-confirmed or a clinical diagnosis) infectious period.

This expanded definition by removal of the “within 6 feet” proximity threshold has the potential to greatly expand the number of close contacts and therefore employer obligations in the following areas:

  1. Contact tracing procedures and determining potential close contacts
  2. Exposure notification requirements
  3. The scope of employees who must be offered testing and who must wear a mask following exposure
  4. Potential exclusion and availability of exclusion pay

The June 8th Order defines infectious period as:

  • For symptomatic infected persons, 2 days before the infected person had any symptoms through Day 10 after symptoms first appeared (or through Days 5-10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved, OR
  • For asymptomatic infected persons, 2 days before the positive specimen collection date through Day 10 after positive specimen collection date (or through Days 5-10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.

For purposes of identifying close contacts and exposures, infected persons who test negative on or after Day 5 and end isolation are no longer considered to be within their infectious period. Such persons should continue to follow CDPH isolation recommendations, including wearing a well-fitting face mask through Day 10.

This revised definition effectively cuts off the infectious period if a COVID-19 case tests negative on or after day 5 per CDPH’s

Given this fact, it is important for employers to stay up to date with the changing guidelines as they will automatically be embedded into workplace safety rules which are subject to enforcement.  You can do this by registering for CDPH COVID-19 Policy Alerts.

The following resources provide helpful guidance:

Local health jurisdictions may continue to implement additional requirements that go beyond this statewide guidance based on local circumstances, including in certain higher-risk settings or during certain situations that may require additional isolation and quarantine requirements (for example, during active outbreaks in high-risk settings).

***As a rule of thumb, always look to local public health guidance before CDPH or Cal/OSHA. ***

Testing

Diagnostic Testing

An antigen test, nucleic acid amplification test (NAAT) or LAMP test are acceptable; however, antigen testing is recommended for infected persons to end isolation, and for symptomatic exposed persons who were infected with SARS-CoV-2 within the prior 90 days. Use of Over-the-Counter tests are also acceptable to end isolation or quarantine.

 

Workplace Exposure Testing

More Testing of Symptomatic Employees:

Under the previous ETS, employers only need to make testing available to those employees with COVID-19 symptoms who are not fully vaccinated. The new language eliminates this limitation, meaning you will have to offer testing to all employees with COVID-19 symptoms regardless of vaccination status.

The ETS requires an employer to:

  • Inform all employees on how they can obtain testing. This could be through the employer, local health department, the federal government, a health plan or at a community testing site.
  • Offer testing at no cost and during paid time:
    • To all employees with COVID-19 symptoms.
    • To employees who had a close contact at work, with an exception for symptom-free employees who recently recovered from COVID-19 (returned cases).
    • During an outbreak, to all employees within an exposed group, at least once a week, except for employees who were not at work during the relevant period and symptom-free employees who recently recovered from COVID-19 (returned cases). Employees who are not tested within 3-5 days after a close contact must be excluded from the workplace until the return-to-work requirements for COVID-19 cases in are met.
    • During a major outbreak, twice per week, except for employees who were not at work during the relevant period and symptom-free employees who recently recovered from COVID-19 (returned cases). Employees in the exposed group who are not tested must be excluded from the workplace until the return-to-work requirements for COVID-19 cases are met.
    • When following CDPH’s Isolation and Quarantine Guidanceto keep employees working or return them sooner, if tested. Please refer to the section in this FAQ on CDPH’s Isolation and Quarantine Guidance.
  • Provide testing in a manner that ensures employee confidentiality.

covid toolkit table showing compliance requirements

“Infectious period” means the following time period, unless otherwise defined by CDPH regulation or order, in which case the CDPH definition shall apply:

  • For COVID-19 cases who develop COVID-19 symptoms, from two days before they first develop symptoms until all of the following are true: it has been 10 days since symptoms first appeared; 24 hours have passed with no fever, without the use of fever-reducing medications; and symptoms have improved.
  • For COVID-19 cases who never develop COVID-19 symptoms, from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.

“Exposed group” means all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the infectious period. A common area at work includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. The following exceptions apply:

  • For the purpose of determining the exposed group, a place where persons momentarily pass through while everyone is wearing face coverings, without congregating, is not a work location, working area, or a common area at work.
  • If the COVID-19 case was part of a distinct group of employees who are not present at the workplace at the same time as other employees, for instance a work crew or shift that does not overlap with another work crew or shift, only employees within that distinct group are part of the exposed group.
  • If the COVID-19 case visited a work location, working area, or a common area at work for less than 15 minutes during the infectious period, and the COVID-19 case was wearing a face covering during the entire visit, other people at the work location, working area, or common area are not part of the exposed group.

NOTE: An exposed group may include the employees of more than one employer. See Labor Code sections 6303 and 6304.1.

COVID-19 Pay & Leave Benefits

California 2022 COVID-19 Supplemental Paid Sick Leave

On September 29, 2022, California’s governor signed Assembly Bill (AB) 152, which immediately extends the obligation of employers with 26 or more employees to provide COVID-19 supplemental paid sick leave (“CA 2022 SPSL”) through December 31, 2022, amends standards for when employees use CA 2022 SPSL because they test positive for COVID-19 and creates the California Small Business and Nonprofit COVID-19 Supplemental Paid Sick Leave Relief Grant Program.

Unlike the previous extensions, the new three-month extension does not require a new bank of leave. Instead, the potentially up to 80 hours of CA 2022 SPSL that employees could have used between January 1, 2022 and the original expiration date must continue to be available through the remainder of 2022.

Under AB 152, certain private employers and registered non-profits that began operating before June 1, 2021, are currently active and operating, with a physical presence in California and 26 to 49 employees may be eligible for a grant of up to $50,000 to cover the actual costs incurred for providing CA 2022 SPSL. Moreover, any grant they receive will not count as “gross income” for state tax purposes. Keep in mind that there are exceptions concerning which entities the law considers a “qualified small business or nonprofit.”

Senate Bill 114 (“SB 114”) applies to all employers with 26 or more employees was signed into law on February 9, 2022. Sick Leave Benefits must provide up to 80 hours of COVID-19 supplemental paid sick leave (“SPSL”). Retroactive from January 1, 2022 and expire on September 30, 2022. Employees are entitled to two buckets of SPSL and must meet eligibility requirements to access said paid sick banks. SPSL must appear as a separate line item on an employee’s wage statement and managed separately from employees’ regular CA Paid Sick days or PTO benefits. The California Labor Commission has published a model notice which should be posted in the workplace, and it must be emailed to employees that work remotely.

 

Resources:

Required Postings: Workplace Poster – English | Spanish | Frequently Asked Questions

Eligibility

All employees including temporary/seasonal are eligible for COVID SPSL and There is no length of service requirement to be eligible for the SPSL entitlement.

  • Full-time employees receive 40 hours of each bucket of SPSL, capped at a maximum of 80 hours of SPSL.

Part time employees with a regular schedule are eligible for prorated SPSL based on their regular schedule.

  • Variable schedules employees are eligible for SPSL based on a lookback of their average hours worked over the last six months (or the length of employment if shorter than six months).

Qualifying Events

Access to Bank 1, an eligible employee must mee the following qualifying event requirements to access their COVID SPCL bank:

  1. An Employee who is subject to a quarantine or isolation period related to COVID-19” as defined by an order or guidelines of the California Department of Public Health, the CDC, or a local health officer who has jurisdiction over the workplace.
  2. An employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
  3. An employee personally attending an appointment or attending with a family member to receive a vaccine or a vaccine booster for protection against COVID-19.
  4. An employee is experiencing symptoms, or caring for a family qualifying member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevent the employee from being able to work or telework.
    1. Please note: Employers may limit the total sick leave related to each vaccination or booster to three days or 24 hours, unless the employee provides verification from a health care provider that they or their family member is continuing to experience symptoms related to a COVID-19 vaccine or COVID-19 vaccine booster. This three-day/24-hour limit includes the time used to get the vaccine or vaccine booster.
  5. An employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  6. An employee is caring for a family member who is subject to a quarantine or isolation period (as defined by an order or guidelines of the California Department of Public Health, the CDC, or a local health officer who has jurisdiction over the workplace) or who has been advised by a healthcare provider to isolate or quarantine due to COVID-19.
    1. A “qualifying family member” is any of the following:
      1. A child, which for purposes of this article means a biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis. This definition of a child is applicable regardless of age or dependency status
      2. A biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child
      3. Spouse
      4. Registered domestic partner
      5. Grandparent
      6. Grandchild
      7. Sibling.
  1. An employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Access to Bank 2, an employee is in need of additional time and has exhausted all available hours in bank 1, an employee must formally request access prior to use and supply the employer with applicable supporting documentation (i.e. photo of a positive test by the employee, family member, school/classroom closure notice, etc.) Failure and or refusal to supply the employer with supporting documentation will result in unpaid leave.

Retroactive Payment and Personal Hours Reimbursement

If an employee missed work due to a COVID-related qualifying event from January 1, 2022 and prior to the enactment of this regulation and used personal sick and or paid vacation time used for COVID-related qualifying event(s), employer must be retroactively reimbursed for hours paid by the applicable bank utilized and the employees COVID SPSL banks are to be prorated accordingly.

For those who exhausted hours and went unpaid, employees must formally request in writing on how they prefer hours to be paid or unpaid (two options):

  1. Retroactive Payout – An employee must provide written request payment of unpaid hours and report total number of hours. Once received, the employer process employee retroactive payment no later than the next pay period following this request and employers will individually adjust the employees COVID SPSL banks by number of hours requested for payout.
  2. Unpaid – The employee has the option to not seek retroactive payment, and will need to provide an employer with written request to do so. Employers can then reimburse personal banks that were used, and an unpaid hours will not be counted when individual adjustments to the employees COVID SPSL banks.

 

Exclusion Pay

The Cal/OSHA ETS requires an employee who was excluded from work because of a workplace COVID-19 exposure should receive exclusion pay if:

  1. The employee was not assigned to telework during that time; and
  2. The employee did not receive Disability Payments or Workers’ Compensation Temporary Disability Payments during the exclusion period.

Employers that provide a paid leave policy that is separate and in addition to the paid sick leave policy required by California’s Paid Sick Leave law (Labor Code section 246) may require their employees to use that separate sick leave as permitted by law. However, an employer cannot require the employee to use the standard paid sick leave mandated under Labor Code section 246, even when there has been a workplace exposure and the employer is required to exclude employees under the ETS.

Please note, unlike the 2021 COVID-19 Supplemental Paid Sick Leave, employers may not require employees who are excluded from work under the ETS to first exhaust the 2022 COVID-19 Supplemental Paid Sick Leave.

Additional information on 2022 COVID-19 Supplemental Paid Sick Leave is posted on topic-specific FAQs on Exclusion Pay Under the Emergency Temporary Standard.

Rate of Pay and Duration

The rate of pay for exclusion pay is an employee’s regular rate of pay for the pay period in which the employee is excluded. These employees are entitled to exclusion pay, depending on the length of the required exclusion period and how many days they were scheduled to work during that exclusion period. Employees must be paid no later than the regular payday for the pay period(s) in which the employee is excluded.

An employee would typically receive pay for the period the employee is excluded, which could be 10 or more days. If an employee is out of work for more than a standard exclusion period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, the employee may be entitled to other benefits, such as Temporary Disability, Disability, or Supplemental Paid Sick Leave.

Exceptions

The ETS does not require employers to pay workers who are excluded from work if the employer can show that the employee’s COVID-19 exposure was not work-related. In such circumstances, employers may have other legal or contractual payment obligations, but pay and benefits are not mandated by section 3205.

Proving that COVID-19 exposure is not work-related to avoid the ETS’ exclusion pay requirement involves an employer conducting an investigation and producing evidence to show it is more likely than not that an employee’s COVID-19 exposure did not occur in the workplace.

Reporting & Record Keeping

An employer’s reporting and recordkeeping requirements under the ETS include the following:

  • Following state and local health department reporting requirements.
  • Reporting serious occupational illnesses to Cal/OSHA, consistent with existing regulations.
  • Maintaining records required by 8 CCR section 3203(b), which include inspection records, documentation of hazard corrections, and training records (requirements vary by employer size).
  • Making the written COVID-19 Prevention Program available upon request to Cal/OSHA, employees, and employees’ authorized representatives.
  • Recording and tracking all COVID-19 cases with the employee’s name, contact information, occupation, the location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. The information must be provided to the local health department, Cal/OSHA, the Department of Public Health, and the National Institute for Occupational Safety and Health immediately upon request. Otherwise, medical information must be kept confidential unless disclosure is required or permitted by law.

Do we still need to check vaccination status of our employees?

  • Vaccine status now no longer relevant under ETS. *
  • CDPH updated guidance (4/6) also now makes no distinction for purposes of quarantine after close contacts. *
  • Remember to check your local public health orders as they may have additional requirements.
  • CDPH could always change their mind and go back to distinguishing people based on vaccine/booster status.

*Vaccine status is still relevant in specified high risk settings.

 

Exposure & Outbreak Notices

Employers must provide written notice of potential exposure 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.  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.  The notice shall include the cleaning and disinfection plan required by Labor Code section 6409.6(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.

Employers must provide written notice of close contact within one business day as required by Labor Code section 6409.6(a)(2) and (c) to the authorized representative, if any, of the COVID-19 case and of any employee who had close contact; and provide the notice required by Labor Code section 6409.6(a)(4) to the authorized representative, if any, of any employee who was on the premises at the same worksite as the COVID-19 case during the infectious period. Those close contacts must receive additional information on testing and the benefits available to them.

If there’s a COVID-19 outbreak in your workplace (3 or more cases within a 14-day period) you must report it to your local health department within 48 hours.  Many local health departments have some type of online outbreak reporting form.  Notification should include the following information:

  • Information about the worksite including the NAICS code
  • Names and occupations of workers with COVID-19
  • Additional information as may be required upon requested
  • Retain notice of potential exposure for three years

The following resources provide helpful guidance:

 

SB 1159 Notification & Workers’ Compensation Claim Filing

SB 1159 (in effect until 1/1/2023) establishes 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.

Please refer to the flowchart on the next page for proper handling.

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

CA SB 1159 and Claim Reporting Flowchart

Masking

Masks are required for all individuals in the following indoor settings, regardless of vaccination status. Surgical masks or higher-level respirators (e.g., N95s, KN95s, KF94s) with good fit are highly recommended.

*In certain healthcare situations or settings surgical masks (or higher filtration masks) are required. See State Health Officer Order, issued on July 26, 2021, for a full list of high-risk congregate and other specifically enumerated healthcare settings where surgical masks are required for unvaccinated workers. The Order also includes recommendations for respirator use for unvaccinated workers in healthcare and long-term care facilities in situations or settings not covered by Cal/OSHA ETS or ATD.

Additionally, masks are strongly recommended for all persons, regardless of vaccine status, in indoor public settings and businesses (examples: retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public); 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). Persons are encouraged to also consider:

  • Data on COVID-19 transmission in your community, including COVID-19 case rates, test positivity, and hospitalization data in their community;
  • If they are immunocompromised or at risk of severe illness or disease, or live with others who are immunocompromised or at risk of severe illness of disease;
  • How well ventilated is the setting, including ventilation with outdoor air, and fresh air ventilation to the spaces with the highest density of occupants, as well as where occupants may be unmasked.

Respirators (e.g., N95s, KN95s, KF94s) or surgical masks with good fit are highly recommended.

The following individuals are exempt from wearing masks at all times:

  • Persons younger than two years old. Very young children must not wear a mask because of the risk of suffocation.
  • Persons 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 is unconscious, incapacitated, or otherwise unable to remove a mask without assistance.
  • Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
  • Persons 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.

 

Please note that nothing within the Cal OSHA ETS 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. Most of those ordinances provide that they are in effect until further modified or rescinded by the local public health department.  Please visit your local COVID-19 CA County Website for more information.

 

Respirators

The Cal/OSHA COVID-19 ETS 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.

Vaccine & Testing Mandates

COVID-19 Business Implications

Verification

Vaccine Verification Process

The third version of the Cal OSHA ETS does not require employers to document employee vaccination status, however employers may still decide to track employee vaccination and booster shot status in order to make isolation and quarantine decisions should the guidance change.   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 of 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.

Some of the most notable mandates include but not limited to:

  • Healthcare Workers
  • Correctional Facilities and Detention Center Health Workers
  • Adult Care Facilities and Direct Care Workers
  • Workers in Schools

 

Establishing a Company Vaccine Mandate

For businesses who are not under a state OR federal vaccine mandate, you are welcome to implement varying degrees of vaccine mandates which can include, but are not limited to:

  • Vaccine Mandate: Vaccine policy that requires employees to obtain COVID-19 vaccine as a condition of
  • Incentive Programs: Business Incentives (i.e. – PTO hours, gifts, cash bonuses, etc.) given to an employee
    who receive the vaccine.
    • Please note: There are incentive limitations for company’s that do not utilize a third party to
      administer the vaccine and incentives made be considered “coercive.” Please consult with legal
      counsel to ensure your compliance if your business falls into this category.
  • Informational Campaigns: Employers can encourage employees to obtain COVID-19 vaccine by providing
    vaccine information to employees.
    Safety Protocols: Impose workplace protocols for unvaccinated (i.e. – testing, masking, social distancing,
    workplace travel restrictions, etc.).
  • Hand’s Off Approach: Do not impose protocols or vaccine requirements.

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

  1. Ensure that your mandatory vaccination policy applies to all employees.
  2. 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. Employers must review federal, state, and local laws regarding any requirements to pay employees for the time (and expenses, such as mileage) involved to get vaccinated.
      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).
    3. Determine what type of proof of vaccination the company will require.
    4. 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.
    5. Be prepared to deal with employee refusals and examine how your business will handle these cases.
    6. Set forth COVID-19 testing requirements and explain that vaccinated employees may be subject to testing requirements in the future.
    7. 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.

If you wish to implement a vaccine mandate, please refer to sample forms and policy to assist in your vaccination processes.

Employers considering a vaccine mandate or incentives should consult with a legal professional before
implementation.

For further guidance on this topic, employers can refer to information provided in the following FAQ resources provided by the federal Equal Employment Opportunity Commission (EEOC) and the California Department of Fair Employment and Housing at the following webpages:

 

Pay & Leave Table

COVID-19 Pay and Leave Table

Resources Appendix

Example Forms & Templates

COVID-19 Notification and Communication Templates

Use the link below to access notification templates that can be adjusted or customized to be more specific to your business and your communications.

 

Additional Resources

DOL

The U.S. Department of Labor (DOL) has created a resource page for workers and employers. The DOL’s Wage and Hour Division provides these posters and guidance:

EEOC

The U.S. Equal Employment Opportunity Commission (EEOC) has created a landing page entitled What You Should Know About the ADA, the Rehabilitation Act, and COVID-19, which provides FAQs, links to resources, and guidance.​

IRS

In response to the COVID-19 outbreak, the Internal Revenue Service (IRS) has issued the following:

JAN

The Job Accommodation Network (JAN) Accommodation and Compliance: Coronavirus Disease 2019 (COVID-19) webpage links to resources for employers regarding the Americans with Disabilities Act (ADA) and coronavirus.

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.

What "covered" should feel like.