Seyfarth Synopsis: On April 21, 2022, the Cal/OSHA Standards Board (“Board”) voted 6-1 to approve a third adoption of the Cal/OSHA COVID-19 emergency temporary standard (“ETS”). The revised ETS will likely go into effect the first week of May and will expire on December 31, 2022.

Background

As we previously blogged, the first iteration of the Cal/OSHA ETS took effect on November 30, 2020. It was initially readopted and revised on June 17, 2021, and then again (called the “second readoption”) on December 16, 2021. The second readoption, which is currently in effect is set to expire on May 6, 2022. Normally, an emergency regulation can only be readopted twice, but by Executive Order, a third readoption of the COVID-19 ETS is permitted so long as it does not extend beyond December 31, 2022.

Now that the Board has voted to approve the third readoption, which is substantively identical to the proposed rule Cal/OSHA published several weeks ago, the revised ETS will go into effect once the Office of Administrative Law completes its review and files with the Secretary of State, likely by the first week in May.

Highlights of the Revised ETS

Much of the current ETS (which we blogged about here) will remain intact. But, the proposed changes are significant for businesses and employees, and remove some requirements. Cal/OSHA has said that updated guidance in the form of FAQs is forthcoming. In the meantime, highlights of the revised ETS include:

  • Removing the definition of “fully-vaccinated” from the ETS. This is significant because it means the ETS will no longer distinguish between fully-vaccinated and not-fully-vaccinated employees. In other words, most requirements of the ETS will apply in the same manner regardless of vaccination status, including:
    • Testing Requirements: Employers will have to offer testing to all symptomatic employees, and all employees with a workplace close contact, regardless of vaccination status. Testing must be provided at no cost to the employee, and during paid working time. The only exception will be based on whether an exposed employee recently recovered from COVID-19 (see below).
    • Providing Respirators: Employers must offer respirators (e.g., N95s) to employees upon request. Now, all employees (regardless of vaccination status) are entitled to a respirator for voluntary use, free of charge, if they ask for one.
  • A new term, “returned cases,” has been added, referring to employees with naturally-conferred immunity, i.e. employees who have recovered from COVID-19 in the past 90 days and remain symptom free.
    • If such employees have had a workplace close contact, employers are not required to offer them testing. Nor are employers required to offer such employees testing if they are part of an outbreak’s “exposed group.”
  • Face coverings are no longer required for employees who are not fully vaccinated. This has been the case since February 28, 2022, when Governor Newsom issued an Executive Order overriding the ETS. The third readoption codifies that Executive Order.
  • Face coverings will still be required:
    • If the CDPH issues orders requiring them;
    • For employees who have tested positive and are returning to work before 10 days have passed since their symptoms began, or 10 days since they tested positive if they never developed symptoms; or
    • For all employees indoors in an exposed group during a workplace outbreak or major outbreak, or those outdoors who cannot maintain 6 feet of distance from others.
  • In situations where face coverings are required, but employees are exempted from wearing them, those employees will no longer need to be kept at least six feet apart from others in the workplace, however they will still need to be tested at least weekly.
  • The definition of face covering will be updated to remove the requirement that they “not let light pass through when held up to a light source.”
  • Removing static requirements for employees who had a close contact, and instead requiring employers to follow current CDPH guidance on close contacts(note these change frequently).
  • Changing the term “high risk exposure period” to “infectious period.” Substantively, the change has no impact; it simply aligns the language of the ETS with the language used by public health authorities.
  • Cleaning and disinfection requirements are removed.
  • During a major outbreak, partitions will no longer be required for exposed groups working together for an extended period but who can’t maintain distance, such as at cash registers, desks, and production line stations.
  • The definition of testing will be updated to allow for self-administered and self-read tests for purposes of return-to-work, but only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).
  • Inclusion of an explicit requirement that unredacted personal identifying information about COVID-19 cases has to be shared with the local health department, CDPH, and NIOSH immediately upon request.
    • Note that many employers have been uncomfortable sharing the breadth of information being requested by some of these entities based on employee privacy concerns, and have been wanting to redact or leave blank. The ETS now says clearly that the information must be turned over.

Workplace Solutions

Stay tuned for updated guidance and developments on the workplace safety front in California. Don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.

Edited by Elizabeth Levy

Seyfarth Synopsis: The Cal/OSHA Standards Board (“Board”) has published proposed language for the third adoption of the Cal/OSHA COVID-19 emergency temporary standard (“ETS”), which will be voted on during the upcoming April 21, 2022 Board meeting. The ETS, assuming it is readopted, will expire on December 31, 2022.

Background

The first iteration of the Cal/OSHA ETS took effect on November 30, 2020. It was initially readopted and revised on June 17, 2021, and then again (called the “second readoption”) on December 16, 2021. The second readoption is set to expire on May 6, 2022, after being extended by Executive Order. Normally, an emergency regulation can only be readopted twice, but the Governor issued an Executive Order in December 2021 permitting a third readoption of the ETS, so long as it does not extend beyond December 31, 2022.

The Board will hold a meeting on April 21, 2022, to vote on the new proposed language. In the meantime, the Board is accepting comments on the proposal, but because this is an emergency regulation, changes prior to the vote are unlikely. As with past meetings, it is expected that the Board will vote to approve and adopt the proposed third iteration of the ETS.

What’s New?

Much of the current ETS (which we blogged about here) will remain intact. But, the proposed changes are significant for businesses and employees, and will include removal of some requirements. Highlights include:

  • Removing the definition of “fully-vaccinated” from the ETS. This is significant because it means the ETS will no longer distinguish between fully-vaccinated and not-fully-vaccinated employees. In other words, most requirements of the ETS will apply in the same manner regardless of vaccination status, including:
    • Testing Requirements: Employers will have to offer testing to all symptomatic employees, and all employees with a workplace close contact, regardless of vaccination status. Testing must be provided at no cost to the employee, and during paid working time. The only exception will be based on whether an exposed employees has recently had and recovered from COVID-19 (see below).
    • Provision of Respirators: Employers must offer respirators (e.g., N95s) to employees upon request. Now, all employees regardless of vaccination status are entitled to a respirator for voluntary use, free of charge, if they ask for one.
  • A new term, “returned cases,” has been added, referring to employees with naturally-conferred immunity, i.e. employees who have recovered from COVID-19 in the past 90 days and remain symptom free.
    • If such employees have had a workplace close contact, employers are not required to offer them testing. Nor are employers required to offer such employees testing if they are part of an outbreak’s “exposed group.”
  • Face coverings are no longer required for employees who are not fully vaccinated. This has been the case since February 28, 2022, when Governor Newsom issued an Executive Order overriding the ETS. The third readoption codifies that Executive Order.
  • Face coverings will still be required:
    • If the CDPH issues orders requiring them;
    • For employees who have tested positive and are returning to work before 10 days have passed since their symptoms began, or 10 days since they tested positive if they never developed symptoms; or
    • For all employees indoors in an exposed group during a workplace outbreak or major outbreak, or those outdoors who cannot maintain 6 feet of distance from others.
  • In situations where face coverings are required but employees are exempted from wearing them, those employees will no longer need to be kept at least six feet apart from others in the workplace, however they will still need to be tested at least weekly.
  • The definition of face covering will be updated to remove the requirement that they “not let light pass through when held up to a light source.”
  • Removing static requirements for employees who had a close contact, and instead requiring employers to follow current CDPH guidance on close contacts (note these change frequently).
  • Changing the term “high risk exposure period” to “infectious period.” Substantively, the change has no impact; it simply aligns the language of the ETS with the language used by public health authorities.
  • Cleaning and disinfection requirements are removed.
  • During a major outbreak, partitions will no longer be required for exposed groups working together for an extended period but who can’t maintain distance, such as at cash registers, desks, and production line stations.
  • The definition of testing will be updated to allow for self-administered and self-read tests for purposes of return-to-work, but only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).
  • Inclusion of an explicit requirement that unredacted personal identifying information about COVID-19 cases has to be shared with the local health department, CDPH, and NIOSH immediately upon request.
    • Note that many employers have been uncomfortable sharing the breadth of information being requested by some of these entities based on employee privacy concerns, and have been wanting to redact or leave blank. The ETS now says clearly that the information must be turned over.

When Will This End?

The ETS, assuming it is readopted this third time, will expire on December 31, 2022. So while much of the rest of the country moves on from burdensome COVID-19 requirements, California employers will still be under the weight of the Cal/OSHA ETS for the remainder of this year. That includes (but is not limited to) requirements to continue notifying employees any time a COVID-19 case has been onsite during the infectious period, and to continue “exclusion pay” for eligible employees with workplace exposure.

And after December 31, 2022? COVID-19 regulation in California is unlikely to disappear. Word on the street is that Cal/OSHA may seek to make the third readoption a permanent standard until it ultimately replaces it with a more general airborne infectious disease prevention standard. So don’t plan on throwing your notification templates or written COVID-19 Prevention Plan in the trash just yet.

Workplace Solutions

Stay tuned for the rapid fire developments on the workplace safety front in California. Don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.

Edited by Elizabeth Levy

Seyfarth Synopsis: On February 28, 2022, California’s Governor Newsom issued a press release lifting California’s mask requirements for unvaccinated individuals in indoor settings, downgrading the former requirement to a strong recommendation, effective March 1, 2022.  The same day, the California Department of Public Health (“CDPH”) published updated guidance, tracking Governor Newsom’s announcement. Later on February 28, Governor Newsom issued a press release and Executive Order overriding Cal/OSHA’s COVID-19 Emergency Temporary Standards, suspending the agency’s workplace requirement that unvaccinated workers wear masks in most indoor settings. Several localities have followed suit.

Until Now, California Has Consistently Mandated Masks for the Unvaccinated Indoors Throughout the Pandemic

California’s mask-related reactions to the ever-changing COVID-19 landscape over the last two years have been well-documented here, here, here, and here.  Most recently, on December 16, 2021, Cal/OSHA readopted its COVID-19 Emergency Temporary Standards (“ETS”), effective January 14, 2022, which required unvaccinated employees to wear a well-fitted mask and also required that any additional masking required by the CDPH be enforced in the workplace. However, in response to the holiday Omicron variant surge, the CDPH required that all individuals mask up, regardless of vaccination status, from December 15, 2021 until February 15, 2022.

Mask Requirement Eased for General Public in Indoor Settings

On February 7, 2022, the CDPH updated its masking guidelines, effective February 16, 2022, allowing vaccinated individuals to shed masks but requiring unvaccinated individuals to wear masks in indoor public settings, including offices and other workplaces. This again aligned the CDPH with Cal/OSHA.

Shortly thereafter, on February 28, 2022, Governor Newsom announced California was transitioning from its longstanding practice of requiring unvaccinated individuals to mask up indoors in nearly all circumstances to a strong recommendation that they do so in most settings, effective March 1, 2022, essentially allowing all individuals to remove masks indoors, except in the workplace under the Cal/OSHA ETS.  This brought California in line with other West Coast states.  Coordinating with California, the governors of Oregon and Washington simultaneously announced that masking for the unvaccinated would no longer be required as of 11:59 pm on March 11, 2022 in the Northwest.

Following Governor Newsom’s announcement, the CDPH issued updated masking guidance.  The CDPH called attention to three main updates:

  1. Effective March 1, 2022, the requirement that unvaccinated individuals mask in indoor public settings became a strong recommendation that all persons, regardless of vaccine status, continue indoor masking;
  2. Universal masking will remain required in specified high-risk settings; and
  3. After March 11, 2022, the universal masking requirement for K-12 schools and childcare settings will end. The CDPH, however, continues to strongly recommend that individuals in these settings continue to mask in indoor settings when the universal masking requirement lifts.

Masking Still Required in High-Risk Settings.  Subject to certain exemptions, the CDPH’s masking requirement for all, regardless of vaccination status, continues in the following settings:

  • Indoors in K-12 schools (through March 11, 2022)
  • 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)
  • Emergency shelters and cooling and heating centers
  • Healthcare settings (applies to all healthcare settings, including those that are not covered by the State Health Officer Order issued on July 26, 2021)
  • State and local correctional facilities and detention centers
  • Homeless shelters
  • Long Term Care Settings & Adult and Senior Care Facilities

Guidance for Guest and Customer Masking. The CDPH guidance also includes suggestions for businesses, venue operators, and event hosts to assist them in navigating this new recommendation standard.  The CDPH recommends, but does not require, businesses to:

  • Provide information to all patrons, guests and attendees regarding masking recommendations for all persons, regardless of vaccine status.
  • Provide information to all patrons, guests and attendees to consider better fit and filtration for masks, such as using surgical masks or higher-level respirators (e.g., N95s, KN95s, KF94s) over cloth masks.
  • Require all patrons to wear masks, especially when risk in the community may be high, or if those being served are at high-risk for severe disease or illness.
  • Require attendees who do not provide proof of vaccination to enter indoor Mega Events to continue masking during the event, especially when not actively eating or drinking.

Now, except in specified high-risk settings, California only strongly recommends indoor mask-wearing for all Californians, regardless of vaccination status.

Indoor Mask Requirement Eased for Employees

With the issuance of the February 28, 2022 CDPH guidance, it was unclear whether or how the new masking recommendations applied to employees because the Cal/OSHA ETS continued to require masking for unvaccinated employees in the workplace, but also required compliance with any masking order from the CDPH.

Late in the evening of February 28, 2022, Governor Newsom resolved the paradox by issuing a short Executive Order that suspended the Cal/OSHA ETS requirement that unvaccinated employees wear masks while indoors or in vehicles (i.e., Section 3205(c)(6)(A)) of the ETS), effective immediately.  As a result, when the CDPH order went into effect on March 1, it lifted not only the indoor masking requirement for the unvaccinated general public, but also employees.

Importantly, other sections of the Cal/OSHA ETS that require face coverings in certain scenarios have not been suspended. Which means that for the time being, face coverings are still required in the workplace as follows:

  • If the employer has onsite indoor health screening (something that most employers have moved away from by now), the employees being screened and the screeners need to wear face coverings, regardless of vaccination status.
  • In the event of an “outbreak” or a “major outbreak,” employees in the exposed group must wear face coverings when indoors, regardless of vaccination status.
  • For employees who have had a COVID-19 exposure and are either exempt from quarantine or ending their quarantine after Day 5, and for employees who have tested positive for COVID-19 and are returning to work after Day 5. Details available here.

ETS Re-Adoption Period Extended by 21 Days to May 6, 2022

In addition, the Governor’s February 28 Executive Order extended the 90-day effective period of the operative ETS by 21 days to May 6, 2022. Employers should be on the lookout for new changes to the ETS at that time.

California Localities Follow the State

As of the time of publication, several major California cities and counties that previously had different masking requirements indicated their plans to come into line with California’s new masking recommendation:  Los Angeles County (announced a tentative plan to roll back indoor mask mandate on March 4, 2022 following the CDC’s COVID designation); Los Angeles (City) (on February 25, 2022, Mayor Garcetti tweeted that the City would align with the County’s guidance on masking); Santa Clara County (announced a plan to lift indoor mask mandate as of March 2, 2022), and San Francisco (announced alignment with State to “recommend, but not require” masks in schools and child care settings after March 11).

Workplace Solutions

As always, Seyfarth will stay on top of the constantly changing COVID-19 landscape, and the challenges it poses to employers.  If you have any questions, please don’t hesitate to reach out to one of the authors of this post or a member of our Workplace Safety team.

Edited by Elizabeth Levy

Seyfarth Synopsis: In recognition of PAGA’s failure to protect California’s workers for the past 18 years, and the tremendous toll it has taken on California businesses, 2022 is the year to pass a proposed ballot initiative to amend this troublesome statute. The California Fair Pay and Accountability Act on the ballot this year aims to replace PAGA with alternative Labor Code enforcement mechanisms by the Labor Commissioner.

The Private Attorneys General Act of 2004 (“PAGA”) is an 18-year old problem that California just cannot seem to kick. Will 2022 finally be the year that California gets its act together and rids itself of PAGA once and for all? Voters may have the opportunity to decide at the ballot box in November.

Why is PAGA a Problem?

PAGA was enacted in 2004 to help the Labor Commissioner’s office enforce California’s labor laws. It does this by “deputizing” private attorneys to file lawsuits on behalf of employees who, in concept, stand in the shoes of the state. Penalties for a multitude of alleged violations can stack up quickly and are ongoing, coming in at $100 to $200 per pay period per employee, even for administrative errors or pay mistakes that may be off by a few cents.

There have been two primary issues with PAGA for California employers:

First, PAGA has eviscerated many of the safeguards the legal system has put into place to prevent frivolous lawsuits. Because employees who decide to sue and their private attorney are “standing in for the state,” their power to sue a business for anything and everything is essentially unchecked. For example:

  • Employees can sue employers based on Labor Code violations they never experienced (or perhaps did not even know about until getting into their discovery relating to an entirely different claim).
  • Employees filing suit can bypass intentionality or willfulness requirements included in the Labor Code as established by the Legislature.
  • Employees can sue in a venue in which they’ve never set foot. So, for instance, an employee can forum shop to sue in the most employee-friendly jurisdiction in the state.
  • Employees can settle their individual claims for money and then still sue as a representative under PAGA for the exact same claims on behalf of a larger group of employees who have never made a complaint.

Second, the law has been manipulated by plaintiffs’ attorneys at the expense of workers, employers, and the state. Because a PAGA claim is so easy to bring, attorneys regularly add the claim to a lawsuit or demand letter. By 2016, well in excess of 4,000 of these cases were filed against California businesses in one year alone—an increase of over 1000% in filings from the first year of the law’s enactment!

The threatened sky-high penalties in these actions are leveraged against employers to extort high settlements, because the cases are often too expensive to litigate. Once these plaintiffs’ attorneys have secured a settlement on a PAGA threat, the settlement agreements are then written to allocate very little monetary recovery to the PAGA claims, so that the state and workers who are supposed to benefit get nominal sums while the attorneys walk away with one-third or more of the total settlement amount.

A review of recent data shows us that it is indeed plaintiffs’ attorneys who are benefitting from PAGA. Workers who pursue claims through PAGA court cases recover an average of $1,200. Meanwhile, PAGA attorneys usually demand a minimum of 33% of the workers’ total group recovery, or $372,000 on average, no matter how much legal work was actually performed. Workers suing through PAGA also wait over 500 days on average to receive their small amount of recovery.

The Solution: The California Fair Pay and Employer Accountability Act

Despite acknowledgements by both legislators and governors that PAGA is a problem, next to nothing has been done to reform it. In light of PAGA’s failure to protect workers or employers, CalChamber, the New Car Dealers Association, the Western Growers Association, and the California Restaurant Association are sponsoring a ballot initiative titled “The California Fair Pay and Employer Accountability Act.”

The initiative:

  • Replaces PAGA, giving the Labor Commissioner the right to levy penalties if the law does not otherwise provide for them, including increasing penalties for willful violations.
  • Provides that 100% of penalties will go to the workers (instead of the 25% of the penalties that workers currently receive under PAGA lawsuits).
  • Creates a Consultation and Publication Unit that employers can use to obtain binding guidance about how to apply the Labor Code.

CalChamber’s annual voter poll demonstrates that voters support this reform. When asked to choose between the two major arguments on each side of the proposed initiative, voters agreed with the proponents by a margin of 79% to 21%.

The California Fair Pay and Employer Accountability Act is an opportunity to reform labor law enforcement to prevent frivolous litigation while ensuring that workers receive the wages they are owed in a timely manner, plus any penalties. The Act would  also benefit both workers and employers by allowing employers to consult the Labor Commissioner when there is an ambiguity in the law, to help make sure they are in compliance. Eliminating PAGA is a resolution we should all make for 2022.

Workplace Solutions

Learn how you can help at: Help CA Workers and Businesses by Replacing PAGA (stoptheshakedown.com). California businesses and workers can make a change for the better by getting rid of PAGA once and for all in 2022!

Edited by Coby Turner and Elizabeth Levy

Seyfarth Synopsis: SB 62, which became effective January 1, 2022, makes those involved in the chain of garment manufacturing jointly and severally liable for certain labor law violations, and eliminates piece-rate compensation for workers in the garment industry. As expected, the Labor Commissioner is stepping up enforcement in the new year and those in the industry should ensure they don’t run afoul of SB 62’s new requirements.

Valentine’s Day is quickly approaching, which means mailboxes will soon be filled with colorful greeting cards, boxes of candies and chocolates, and romantic notes from our loved ones. But for those in the garment industry, this year’s holiday might bring with it not just a lovely Valentine, but also an uptick in enforcement measures from the Labor Commissioner’s Office.

Love Is In The Air, But Not For Those Who Fail To Pay The Minimum Wage

As we predicted back in May, the aptly named Garment Worker Protection Act (“SB62”) was signed into law in October and took effect on January 1, 2022. This law eliminates piece-rate compensation and requires garment manufacturers to pay employees at least the minimum wage.

Even more significantly, the new law holds all entities “engaged in the business of garment manufacturing” jointly and severally liable for any failures to pay minimum wage and overtime pay, regardless of how many others are involved in the chain of manufacturing. For example, a retailer who contracts with a subcontractor to perform garment manufacturing operations can now be found jointly and severally liable with the subcontractor, and any of the subcontractor’s subcontractors, no matter how many steps removed they may be from the retailer. Those newly-subject to the Act may be confounded as to whether they are engaged in the business of “garment manufacturing” because the already broad term has been expanded to mean “assembling, dyeing, altering a garment’s design, causing another person to alter a garment’s design, [or even] affixing a label to a garment.”

The Department of Industrial Relations took the publication of the alleged violation as an opportunity to warn all in the garment manufacturing industry that the new law is here and will be enforced. Indeed, as the Labor Commissioner’s news release states, SB 62 will “change the way many garment manufacturers operate.” Thus, we surmise that this friendly update was not designed to spread love and holiday cheer, but rather serves as a strict warning to those in the garment industry that the Labor Commissioner intends to prioritize enforcement of SB 62.

Check Those Mailboxes­—Enforcement Orders May Be On Their Way

At the turn of the new year, the Labor Commissioner issued a news release warning garment manufacturers that it had recently revoked the license of a Los Angeles garment manufacturer for labor law violations. The notice alleges that the garment manufacturer in question had falsely claimed it had no employees, but an inspection by the Labor Commissioner’s Office revealed quite the opposite. The manufacturer was cited for failing to provide proof of workers’ compensation insurance and ordered to cease work until the issue could be remedied.

The Labor Commissioner reported that after multiple attempts to contact the manufacturer went unanswered, and after an inspector was turned away on a follow-up visit, the Labor Commissioner had no choice but to revoke the manufacturer’s license for willfully violating labor law. This holiday story serves as a careful reminder to all in the garment industry that the Labor Commissioner has its eye on you and yours, and that the newly enacted Garment Worker Protection Act will be enforced with authority.

Don’t Get Caught without a Valentine—Ensure Compliance with the New Law Now

On January 25, 2022, the Labor Commissioner’s Office hosted a free training on SB 62, and is set to host regular training on the subject in the future. At this training, the Labor Commissioner’s Office made it abundantly clear that enforcement of SB 62 is well under way, and as of January 1, 2022, piece-rate compensation is unlawful (with narrow exceptions). Industry employers, manufactures, retailers, and all who are interested in learning more and registering for future trainings are encouraged to visit the Labor Commissioner’s website here.  The Labor Commissioner’s Office is also reportedly conducting in-person outreach to those in the industry, so be on the lookout for a postcard or visit from your local inspector.

Workplace Solutions

With SB 62 enacted, and the Labor Commissioner prioritizing enforcement of the newly-added provisions, employers should ensure they are complying with the new requirements and be prepared to respond to any inspection, inquiry, or audit that may come through their front door or mailbox. Your Seyfarth counselors are here to help you with negotiating contracts and looking at labor and employment compliance as needed in your supply chain.

Edited by Coby Turner

Seyfarth Synopsis: On February 9, 2022, Governor Gavin Newsom enacted the 2022 iteration of California’s COVID-19 supplemental paid sick leave law. The new law will be effective Saturday February 19, 2022 (10 days after enactment). It is retroactive to January 1, 2022, and expires on September 30, 2022.

A Walk Down Memory Lane

As you may recall, California’s Supplemental Paid Sick Leave efforts began on September 9, 2020, when California enacted a state-wide COVID-19 supplemental paid sick leave law to fill gaps left by the federal Families First Coronavirus Response Act (“FFCRA”). (“2020 CA-SPSL”).

After the 2020 CA-SPSL expired on December 31, 2020, a new 2021 CA-SPSL went into effect on March 19, 2021. It was retroactive to January 1, 2021, and effective immediately as new Labor Code section 248.2. This law sunset on September 30, 2021.

Third Time’s the Charm?

Governor Gavin Newsom signed the new 2022 CA-SPSL on February 9, 2022, which was first published on February 2, 2022. The new law will be effective on Saturday, February 19, 2022 (10 days after its enactment). It contains similar provisions to its predecessors. Here are the highlights.

That First Step’s a Doozy: Now There’s Two Types of Leave

Under the third iteration of COVID-19 SPSL, two banks of leave will be available. One bank of up to 40 hours will be available if an employee or a family member tests positive. Employees will have another bank of up to 40 hours for all other covered reasons. These other covered reasons largely track the 2021 CA-SPSL, with a few expansions for caring for family members, which are underlined below:

  • Quarantine or Isolation. The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the covered employee is subject to more than one quarantine or isolation order or guideline, the covered employee shall be permitted to use COVID-19 supplemental paid sick leave for the minimum time period under the order or guidelines that provides for the longest such minimum period.
  • Advice from Health Care Provider. The covered employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The covered employee is attending an appointment for themselves or a family member to receive a vaccine for protection against contracting COVID-19.
  • Vaccine Symptoms. The covered employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine that prevent the employee from being able to work or telework.
  • The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • Caring for a Family Member. The covered employee is caring for a family member, who is subject to an order or guidelines or who has been advised to self-quarantine.
  • School Closure Due to COVID on Site. The covered 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.

Amount of Leave

Like the 2021 version, employees who are considered full time or work, on average, 40 hours a week, receive 40 hours of each type of leave, for a maximum of 80 hours of leave. Part time employees receive a pro-rated version based on their regular schedule. Employees with variable schedules receive leave based on their average hours worked over up to a six month lookback period (depending on length of employment).

Employers Can Request Some Documentation and Require Testing

In one bright spot for employers, employees may only take up to 24 hours per vaccine/booster injection unless the employee provides verification from a health care provider that the covered individual is continuing to experience symptoms related to the vaccine or booster.

When employees take leave under the specific tranche of leave available due to testing positive for COVID-19, employers may require documentation of the employee’s (or family member’s) positive test. If an employee refuses to provide documentation, the employer does not need to provide the leave. The nature of the documentation employers are able to require is unclear, and we await FAQs to provide some clarification.

In addition, if an employee tests positive, the employer may require the employee to submit to a diagnostic test on or after the fifth day and require documentation of results (but must make that test available at no cost to the employee).

I Sure As Heckfire Remember the Retroactive Payments

Like the 2021 SPSL law, employers are required to issue retroactive payments to employees who took leave for a covered reason since January 1, 2022, upon written or verbal request by an employee. The retroactive payment has to be paid “on or before the payday for the next full pay period after the oral or written request of the covered employee.”

Just Like Punxsutawney Phil, the Wage Statement Requirement Is Reincarnated

Instead of providing the available balance on wage statements (or written notices issued on pay day) as previous versions of the SPSL provisions required, employers now only need to list the amount of leave that has been used. If an employee has not yet used any leave, their statement must list “zero.”

Rate of Pay Partially Aligns With Regular Paid Sick Leave

One new provision alleviates some of the administrative burden of determining the correct rate of pay, at least where the employer is using workweek calculation method. Under 2022 CA-SPSL, the rate of pay is the same as California’s regular paid sick leave under Labor Code Section 246, if using the workweek method. Leave is to be paid at the regular rate during the pay period taken, meaning employers must include hourly wages, commissions, piece rate, or other wage payments during the workweek into their calculations (or, for exempt employees, their typical pay).

If using the 90-day lookback method, the rate of pay is not the same as that in Labor Code Section 246 for regular paid sick leave. It is calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment, as opposed to total hours worked (a.k.a. the Alvarado method). See our prior blog here for details on how to do these types of regular rate calculations.

The $511/day cap remains under either calculation method.

No Cal/OSHA Earnings Continuation Relief

Unlike the 2021 CA-SPSL, an employer cannot require covered employees to first exhaust their COVID-19 supplemental paid sick leave before satisfying any requirement to provide earnings continuation under the Cal/OSHA ETS, which we blogged about here. Employers cannot require any other type of leave to be used instead of, or before, 2022 CA-SPSL.

Credit Where Credit Is Due

Employers that have provided COVID-19 related leave for reasons covered by the new law in amounts equal to or greater than what the law requires can take credit for previously provided leave since January 1, 2022.

Notice Requirement

A new model poster has been provided by the DLSE here (and in Spanish here). This should be posted in the workplace and must be emailed to employees who do not frequent a workplace.

Déjà vu: Small Business Carve Out

Like its predecessors, 2022 CA-SPSL will not apply to businesses with 25 or fewer employees.

(Good) Tax News?

Last year, businesses could be reimbursed for supplemental paid COVID-19 leave with a now-expired federal tax credit. We expect that businesses will have to absorb the cost, but that there will be some relief through various tax credits and additional funding for more small business grants.

Workplace Solutions

As the landscape of federal, state, and local COVID-related leave laws continues to change, employers must continue to modify policies and practices to ensure compliance. For more information on COVID-19 issues, please contact your favorite Seyfarth attorney.

Seyfarth Synopsis: As of January 14, 2022, California employers must ensure that their COVID-19 health and safety protocols are compliant with Cal/OSHA’s Latest COVID-19 Prevention Emergency Temporary Standards. The U.S. Supreme Court’s recent ruling on the nationwide Federal OSHA ETS vaccine mandate does not impact these separate California-specific requirements, which employers must still comply with here.

Once The Rage, SCOTUS Voted To Stay Enforcement Of Federal OSHA’s ETS

As we reported, on January 13, 2022, the U.S. Supreme Court blocked Federal OSHA’s mandate slated to apply to businesses with 100 or more employees nationally. The federal mandate requires employees to either be fully vaccinated or to wear masks and take COVID-19 tests weekly, among other requirements. As you may recall, immediately after the mandate was issued, many businesses, local governments, and private interest groups fought to put the mandate on hold.

Ultimately, SCOTUS ruled that OSHA had exceeded its power because regulating overall public health was outside the agency’s authority to regulate workplace safety, and has sent the mandate challenges back to the Sixth Circuit for further litigation on the merits. Despite this ruling, U.S. Secretary of Labor Marty Walsh indicated that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers,” regardless of the litigation.

But, just because the nationwide federal OSHA mandate seems to be anything but everlasting, the beat goes on in California where the Cal/OSHA ETS is in full swing.

Cal/OSHA’s ETS Keeps Pounding A Rhythm To The Brain

SCOTUS’ recent decision regarding the nationwide OSHA mandate does not impact Cal/OSHA’s enforcement of its own COVID-19 Prevention Emergency Temporary Standards (“ETS”)  ETS, and California employers are required to be in compliance with the newly revised ETS as of January 14, 2022.

As we reported, on December 16, 2021, the Cal/OSHA Standards Board voted to readopt the ETS with changes that took effect on January 14, 2022, and will remain in place through April 14, 2022. So, you need to make sure that your company is updating its COVID-19 Prevention Plan in line with the new guidelines, as appropriate. Some of the highlights are:

  • The definition of a “COVID-19 test” excludes tests which are both self-administered and self-read, so employers may not rely on the results of an employee’s at-home rapid test to comply with the testing requirements of the ETS.
  • “Fully vaccinated” for purposes of the ETS, includes mixing and matching of vaccines so long as the vaccines are FDA approved or listed for emergency use by the WHO (e.g. two doses of a Moderna-NIAID vaccine, and one dose of a Pfizer-BioNTech booster).
  • Testing must be provided to any workplace close contact employees, regardless of vaccination status, during paid working time and at no cost to employees.
  • Outbreak testing can’t exclude fully vaccinated employees.
  • Updated isolation and quarantine guidelines related to CDPH and CDC updates, which vary depending on vaccination status and test results, available in detail here.
  • And, in clarifying FAQs, Cal/OSHA stated that it is not banning cloth face coverings, nor do they “need to completely block out light” (as stated in the ETS itself), but rather they just need to be tightly woven fabric or non-woven material.

As a reminder of some other key provisions carried over from prior versions of the ETS, you also want to make sure your company is:

  • Documenting employee vaccination status, by checking proof of vaccination, for if/when it may be able to allow fully vaccinated individuals to remove masks indoors.
  • Providing adequate face coverings (including respirators or N95s, where required) for employees who are either unvaccinated or upon request.
  • Contact tracing cases at work, and making sure employees and others in the workplace are appropriately quarantined and/or maintaining physical distancing requirements if they have been exposed to COVID-19.
  • Providing free COVID-19 testing during paid working time to all symptomatic employees who are not fully vaccinated, regardless of work-related exposure.
  • Maintaining COVID-19 safety plans and training for employees.

In addition to complying with the ETS, California employers must follow all public health orders on COVID-19 (including local public health department orders). The most recent order from the California Department of Public Health can be found here, which importantly includes an indoor mask mandate for all employees through February 15, 2022.

La De Da—The Beat Is Different for Healthcare Workers

Though SCOTUS blocked enforcement of the Federal OSHA ETS, separately in a 5-to-4 decision, the mandate for the Centers for Medicare & Medicaid Services was allowed to take effect. As Seyfarth recently reported, this mandate requires vaccines for health care workers at hospitals and other medical facilities that participate in certain Federal programs. California is one of the many states expected to continue under the timeframes and parameters identified in the December 28, 2021, CMS Guidance for the Interim Final Rule, which requires healthcare workers to be fully vaccinated by February 28, 2022.

And, as a reminder, California’s Department of Public Health issued its own vaccine requirements for health care workers back in August 2021, and updated it on December 22, 2021, to address boosters, as described in detail here.

The CDPH vaccine requirement applies to workers who provide services or work in various types of healthcare facilities such as general acute care hospitals, skilled nursing facilities, and clinics and doctor’s offices. The CMS mandate, on the other hand, does not require boosters, and applies to health care workers at facilities participating in the Medicare or Medicaid programs.

In many cases, facilities in California will be covered by both the CDPH vaccine requirements and the CMS mandate, with some exceptions. For example, and perhaps most notably, many doctor’s offices will not be covered by the CMS mandate unless they are part of a larger hospital system, though they will be covered by the CDPH mandate.

Workplace Solutions

California employers need to ensure immediate compliance with Cal/OSHA’s ETS or risk potential citations. This includes substantial monetary penalties, sometimes five or six figures. Cal/OSHA recently posted new fact sheets (here and here) and updated its FAQ’s on the ETS for guidance as well.

Remain on the lookout for additional alerts as the landscape continues to change. Consult your Seyfarth attorney, including any member of Seyfarth’s Workplace Safety Team or Health Care Team, to ensure that your business is complying with the ever-changing COVID-19 rules and regulations.

Edited by Elizabeth Levy and Coby Turner

 

We’re sure the rush of changes happening at year end, and prepping for the holidays over the next few weeks have got you thinking: what’s on my wish list? If you could ask CalPecs Santa for anything, what would it be?

Your CalPecs editors are ready to ring in the New Year with an assortment of articles as exciting as finding a bell from Santa’s sleigh under the tree, but we’d like to know what YOU would like to see. If you have a hot topic of interest you’ve been mulling over with your cider, or a nagging issue getting more attention than Rudolph’s nose on a foggy night, please send it our way! We’ll wrap your thoughts in a bow and address them in our posts for 2022.

Please help us bring joy to the world, and contact us here with your holiday wish!

Seyfarth Synopsis: On December 16, 2021, the Cal/OSHA Standards Board voted to readopt the COVID-19 Emergency Temporary Standard (“ETS”) with changes that will take effect January 14, 2022. This readoption includes many changes to the current ETS, including an elimination of many of the current distinctions between vaccinated and unvaccinated workers.

Background

The first iteration of the Cal/OSHA ETS took effect on November 30, 2020. Under California administrative procedure, an emergency regulation can be readopted twice. The Cal/OSHA ETS was first readopted (and revised) on June 17, 2021. We’ve been blogging all along the way, and for anyone who’s missed out on the saga, you can read about it starting here.

With the December 16, 2021 second readoption, the end of the Cal/OSHA COVID-19 ETS initially appeared to be inching closer: it was expected to expire April 14, 2022 in alignment with the anticipated effective date of Cal/OSHA’s proposed permanent COVID-19 standard that would be effective for two years. However also on December 16, 2021, the Governor issued an Executive Order permitting a third readoption of the ETS, so long as it does not extend beyond December 31, 2022. Given the EO, which was surely issued at the urging of Cal/OSHA, it appears likely that Cal/OSHA will table consideration of a permanent standard and instead readopt the ETS for a third time at some point in 2022.

In the meantime, the second readoption of the ETS, with its changes from the prior two versions, is the current law of the land.

Key Changes

Highlights of the newly revised ETS include the following:

  • A new definition of “COVID-19 test.” When testing is required under the ETS, is cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Which means that employees won’t be able to simply report results of a home-test to their employer.
  • Changes to permissible types of face coverings. Despite harsh opposition from commenters, Cal/OSHA’s new standard says that permissible face coverings include surgical masks, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers that does not let light pass through when held up to a light source (except for clear face coverings worn for accommodations purposes). This means that many of the cloth masks that have been used by employees will no longer be acceptable under this new standard—including the masks being worn by many of the stakeholders at the meeting.
  • A new definition of “fully vaccinated” that permits mix-and-match. Cal/OSHA’s new, more detailed definition, specifies that fully vaccinated means either the employee is two weeks past completion of a primary vaccine (with at least the minimum recommended interval between doses for a two-dose series), or two weeks past a second dose of any combination of two doses of a vaccine, so long as the second dose was not received earlier than 17 days after the first dose. As always, a compliant vaccine has to be FDA approved, have an emergency use authorization by the FDA, or listed for emergency use by WHO, but now Cal/OSHA also allows employees who had their vaccine administered as part of a clinical trial to be considered fully vaccinated under certain circumstances.
  • A new definition of “worksite” for purposes of COVID-19 employee notification. The revised ETS clarifies that a “worksite” does not include locations where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence or alternative work location chosen by the worker when working remotely. This new definition may, in some circumstances, enable employers to forego employee notification that it would have otherwise been obligated to provide under the previous version of the ETS.
  • Testing must be provide to any workplace close contacts, regardless of vaccination status. It used to be that employers only needed to offer COVID-19 testing to unvaccinated workplace close-contacts. But now, because of the rapidly evolving virus and breakthrough cases in the workplace, Cal/OSHA will require employers to offer testing to employees, vaccinated or not, who had a workplace close contact. The only exception for close-contact testing are employees who recovered from COVID-19 in the past 90 days and are asymptomatic.
  • Different requirements around fully vaccinated and not fully vaccinated close contacts.
    • No quarantine for fully vaccinated employees, but masks and social distancing required. Fully vaccinated employees who have had close contact with a COVID-19 case still do not need to be excluded from work so long as they are asymptomatic. However, now they must wear a face covering and maintain social distance from others at the workplace for 14 days following the last date of close contact. The same is true for asymptomatic employees with close contact who have recovered from COVID-19 infection in the prior 90 days: no quarantine necessary but they must wear face coverings and be socially distanced in the workplace for 14 days.
    • Changes to quarantine requirement for not fully vaccinated employees, including a 7-day option. For employees who are not documented as fully vaccinated, a 10-day quarantine is still permitted, but only if the employee maintains six feet of distance from others at work and wears a face covering for 14 days following the last date of close contact. There’s also an option for a 7 day quarantine if the employee tests negative for COVID-19 on day 5 or after, and the employees adheres to the face covering and social distancing requirement until day 14. The 7 day option was previously limited to healthcare workers during critical staffing shortages.
  • Outbreak testing can’t exclude fully vaccinated employees. Now, in the event an employer is required to implement outbreak testing for an “exposed group” of employees, all employees regardless of vaccination status must be offered the testing.

What Else Should Employers Know?

The second readoption of the ETS did not bring any changes to the general Cal/OSHA face covering rule which says that fully vaccinated employees need not wear face coverings indoors. However, employers should be aware that on December 15, 2021, a California Department of Public Health state-wide universal indoor masking order went into effect until January 15, 2022. This means that between December 15, 2021 and January 15, 2022, employers in California will nonetheless need to require universal indoor masking, regardless of vaccination status.

Workplace Solutions

Stay tuned for the rapid fire developments on the workplace safety front in California. If you are facing difficult questions from your employees in this space that you need help answering, please don’t hesitate to reach out to one of the authors of this post or a member of our Workplace Safety team.

Edited by Coby Turner and Patrick Joyce

Seyfarth Synopsis: Starting today, December 15, 2021, Californians must again mask up in public indoor spaces, regardless of their vaccination status. California’s Department of Public Health imposed this state-wide four-week mandate to curb the spread of COVID-19 over the holidays.

In the face of the Omicron variant, California announced that it is again imposing a statewide requirement for everyone, regardless of vaccination status, to wear masks in indoor public spaces. This requirement will last at least four weeks, through January 15, 2022, at which time the California Department of Public Health (CDPH) will reevaluate whether the mask mandate should be extended.

What is an Indoor Public Space?

On December 14, 2021, California updated its Face Coverings Q&A, removing its definition of “indoor public space.” Previously, the CDPH defined a public indoor space as an indoor facility with public access (e.g., “live performances, indoor malls, movie theaters, places of worship, indoor mega events, and indoor museums”). On December 15, 2021, the FAQs were further revised to clarify that the statewide mask mandate applies to all workplaces regardless of public access to the space. The only exemption for workplaces is for a person “working alone in a closed office or room.” As a result, offices with shared spaces, such as cubicle bays and conference rooms, should adhere to the new masking requirement.

Whether Unvaccinated, Vaccinated, or Boosted, Californians Must Mask Up Over the Holidays

Under the new mandate, only the following limited categories of individuals can forgo masking:

  • People under two years old;
  • People with a medical condition, mental health condition, or disability that prevents wearing a mask;
  • People who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication; and
  • People 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.

Pre-Existing Local Mask Ordinances Remain in Effect

Prior to the statewide mandate, some cities and counties imposed their own mask indoor ordinances. To the extent these pre-existing local ordinances imposed masking irrespective of vaccine status, the FAQs explain that these local ordinances remain in effect. In response, San Francisco, an early adopter of indoor mask mandating, updated its existing masking order on December 14, 2021, clarifying that its exemption from mask wearing for stable, fully vaccinated cohorts in offices and gyms remains in effect, despite the statewide mandate.

Holiday Travel? Don’t Forget to Test

On December 13, 2021, the CDPH also issued a travel advisory, recommending (but not requiring) that individuals traveling into California from out of state or out of the country test for COVID-19 three to five days after arrival. This recommendation may impact California employers who have employees traveling out of state over the holidays.

Workplace Solutions

Remain on the lookout for additional alerts. If the last 22 months have taught us anything, it is that public health orders can change quickly as the COVID-19 pandemic evolves. Consult your Seyfarth attorney, including any member of Seyfarth’s Workplace Safety Team, to ensure that your business is complying with the ever-changing COVID-19 rules and regulations.

Edited by Coby Turner