COVID-19 restrictions have relaxed within the past year but the virus remains a top concern in the workplace. Employee apprehensions about health and safety measures vary drastically which has put many employers in potentially sticky situations both morally and legally. If you are an employer still grappling with questions like “can I require my employees to wear a mask in the office?” or “am I allowed to require full vaccination for employees?,” you are not the only one.
As we approach what will be the fourth year of the pandemic, various bills have been passed to offer guidelines for employers to keep protecting their employees, and the federal Center for Disease Control (CDC) continues to encourage vaccinations, masks, testing, and other preventative measures. Here are the latest changes to COVID-19 policies and what California employers need to know to avoid litigation now and in 2023.
The COVID-19 Prevention Emergency Temporary Standards first went into effect on November 30, 2020, and have been consistently updated as pandemic conditions progressed. These workplace standards were most recently updated in May 2022 and are currently in effect until December 31st, 2022. The Emergency Temporary Standards (ETS) apply to all Californian employees, employers, and places of employment, with the exceptions being:
- Work locations where there is only a singular employee who does not have physical contact with others,
- Employees who are working remotely either in their homes or any other location that does not fall under the authority of the employer (a public cafe or other private areas such as other people’s homes, for example), or
- Employees who fall under the Aerosol Transmissible Diseases regulation.
For further guidance on which employees are subject to ETS guidelines, please refer to Cal/OSHA’s page on COVID-19 Emergency Response and frequently asked questions.
According to the ETA, employers must provide and make sure their employees wear face coverings if required by orders from the California Department of Public Health (CDPH). The CDPH currently requires all workers in healthcare or long-term care settings and adult or senior care facilities to wear facial coverings indoors. Refer to your city or municipality’s public health department for other specific regulations (Example: The Los Angeles Public Health Department COVID-19 Response Plan.)
In other indoor environments, such as homeless shelters, emergency shelters, cooling and heating centers, or state/local correctional facilities and detention centers that are not in the healthcare industry, the individual facility should refer to the CDC COVID-19 Community Levels to determine the level of masking requirements that they should enforce. When COVID-19 community levels are low, businesses are not obligated to enforce a mask mandate. However, when levels are medium or high, businesses should strongly consider providing patrons with information about masking and require all employees and patrons to wear masks. For more in-depth guidance, visit the CDPH page.
COVID-19 Testing Requirements
When the Emergency Temporary Standards are in place, employers must provide information on how their employees can obtain testing, whether it be directed toward the local health department, the federal government, or community testing sites. Employers must offer testing during paid time and for free for individuals:
- Exhibiting COVID-19 symptoms,
- Who have had close contact with COVID-19-positive individuals at work, or
- Who were part of an exposed group during an outbreak.
If an employer offers an employee COVID-19 testing but they choose not to take advantage of it, the employer has not violated any regulations due to the employee’s refusal. Additionally, the employer is not required to obtain a signed admission from the employee stating their declination. However, in the event of a significant outbreak, according to section 3205.2(b), employees in an exposed group who are not tested have to be excluded from work and can only return to work after following the requirements outlined in subsection 3205(c)(10) starting from the date that the outbreak occurs.
In the instance of a major outbreak, employers may choose to require employees to undergo COVID-19 testing under certain conditions. Refer to the Department of Fair Employment and Housing Employment Information on COVID-19 for further instructions on when this is allowed.
COVID-19 Vaccine Requirements
The ETS currently does not require employers to document their employee vaccination history. However, employers do have the right to ask their employees or applicants for such documentation. Asking for this information is not a disability-related inquiry, religious creed-related inquiry, or a medical examination, as explained by the Department of Fair Employment and Housing, and does not violate laws or regulations.
The Department of Fair Employment and Housing also permits employers to request that their employees get vaccinated against COVID-19. However, these requests should be approached with caution and communicated effectively. Requests that are perceived as discrimination against a protected characteristic (i.e. age, gender, disability, etc.) or retaliation against a reasonable accommodation for a disability or religious beliefs can lead to business disputes and lawsuits.
Reporting And Responding To COVID-19 Cases In The Workplace In California
Signed into law on September 29, 2022, California Assembly Bill 2693 amended the previous statewide notification requirements by changing the duties of employers when they are notified of potential exposure to COVID-19 in their workplaces.
The primary modification changes the previous requirement to provide written notices to employees to only posting a notice of potential exposure at the worksite or on an existing employee portal. Additionally, the amendment will no longer require notice to local public health agencies in the event of an outbreak. It will go into effect on January 1, 2023, and will extend to January 1, 2024.
COVID-19 exposure reporting and response differ by city and municipality. For example, in Los Angeles, employers are still required to report any incident of three or more COVID-19 cases within a two-week period to the Los Angeles County Department of Public Health. Reports should be made as soon after the incident as possible but no later than 48 hours afterward. Refer to your local health department for specific regulations and/or guidelines.
Additional COVID-19 Legislation & Guidelines
Recently, several pieces of legislation have been passed directly concerning COVID-19 in the workplace. On September 29, 2022, Assembly Bill 152 was passed, which extends California’s COVID-19 Supplemental Paid Sick Leave (SPSL) law. This bill was initially enacted in early 2021 and has now been extended for three months through December 31, 2022.
The state’s SPSL law presently in place requires that employers with 26 or more employees provide extra pay to workers who are unable to work for reasons associated with COVID-19, as well as those needing leave to care for close family members. The SPSL law covers two types of available sick leave, each providing a maximum of 40 hours of leave time:
- For employees who cannot work or telework due to qualifying COVID-19 reasons, like being in quarantine or self-isolation, getting themselves or a family member vaccinated, or taking care of a child whose school is closed because of the pandemic.
- For employees, or a family member for whom they are providing care, that test positive for COVID-19.
AB 152 has not required any extra leave hours beyond the 80-hour limit that is set currently. Although, the law does change an employer’s ability to test their employees and provides a grant program for small-business owners and nonprofit organizations. Under current California law, employers do not need to provide leave or compensation for employees who refuse to take COVID-19 testing to verify their status.
Though the current state of many of these policies has an end date of December 31, 2022, CAL/OSHA is expected to further extend more “permanent” regulations. On September 15, the CAL/OSHA Standards Board held a public hearing on a proposed rule to enact a semi-permanent standard that will preserve many of the current ETS requirements. A few key components of the proposed rule include:
- Elimination of exclusion pay;
- COVID-19 being addressed through an Injury and Illness Prevention Program;
- Reporting and recordkeeping standards;
- Updated definitions from the CDPH; and
- Notice requirements of outbreaks.
The California Occupational Safety and Health Standards Board will officially vote for the adoption of this “permanent COVID-19 safety regulation” on December 15, 2022.
The California Legislature and CDC are continuing to take COVID-19 regulations seriously, especially as businesses and workplaces reopen in person. To guarantee the safety of your business and employees, employers must be aware of all new COVID-19 regulations being implemented.
The COVID-19 workplace landscape is ever-evolving. Contact us today for assistance navigating the latest and upcoming regulations.
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