On May 20, 2021, the Cal/OSHA Standards Board  (“Board”) delayed a vote on proposed changes to the COVID-19 Emergency Temporary Standards (“ETS”). At that time, the Board claimed they would revise the ETS to address updated guidance from the Centers for Disease Control and Prevention (“CDC”) for fully vaccinated persons. However, the revised ETS passed by the Board late on June 3rd falls short of following all of the CDC’s newest guidance and takes a more restrictive approach than previously proposed revisions.

The amended ETS will be submitted to the Office of Administrative Law (“OAL”) and the OAL has 10 calendar days to approve, just in time for the reopening of California on June 15th. It is assumed the ETS will be approved by the OAL.

Here are the changes to the ETS that California employers should be aware of:

  • Physical distancing: The 6 feet physical distancing requirements will remain in place until July 31, 2021. However, the amended ETS adds the following exceptions to physical distancing:
    • An employee wearing a respirator if required by the employer and used in compliance with the Respiratory Protection Standard in Cal. Code. Regs., tit. 8, section 5144.
    • Locations at which all employees are fully vaccinated, except for employees who require a reasonable accommodation or exception to vaccination under federal or state law.
  • Face coverings: Employers are still required to provide face coverings and ensure face coverings are worn when indoors, when outdoors and less than 6 feet away from others, and where required by orders from the California Department of Public Health or local orders. However, the following exceptions apply:
    • When an employee is either alone in a room or when all persons in a room are fully vaccinated.
    • Employees who wear respirators as required by other sections.
    • Employees who are fully vaccinated when they are outdoors and do not have any COVID-19 symptoms.

Employers looking to take advantage of the exceptions for social distancing and face coverings will also have to have effective documentation showing affected employees are fully vaccinated as required by the ETS. This will create some additional compliance obligations with respect to medical records and the protection of employees’ private and confidential information.

  • Respirators for unvaccinated employees: Effective July 31, 2021, employers must provide filtering facepiece respirators (i.e., NIOSH-approved devices that are able to filter particulate matter, such as the N95s) to employees that are not vaccinated for voluntary use

 Employers should note that respirators are different from face coverings, in that respirators provide personal protection to the individual wearing the respirator. Face coverings, in contrast, are meant to provide source control.  As a result of this requirement, employers will also need to comply with Title 8, Section 5144(c)(2), which has specific requirements for voluntary respirator use, such as providing certain information to users contained in Appendix D of Section 5144. Employers must similarly develop written procedures for employees to use respirators in the workplace that ensure employees’ use of respirators does not pose a hazard and that respirators are used in a correct manner.

  • Partitions: Partitions must continue to be used until July 31, 2021, to protect employees working indoors and at outdoor mega-events. One exception to this is to provide respirators for voluntary use in compliance with Section 5144(c)(2). After July 31, 2021, employers could remove partitions but would be required to reinstall them in the case of multiple COVID-19 infections or outbreaks in the workplace.
  • Exclusion: Fully vaccinated employees that test positive for COVID-19 (or are otherwise considered a COVID-19 case) must still be excluded from the workplace until the return to work requirements (same as the prior ETS) are met. However, fully vaccinated employees no longer need to be excluded from the workplace due to a close contact, so long as they do not develop symptoms.
  • Testing: Employers must continue to make COVID-19 testing available at no cost during paid time to all employees who have had a close contact except for those who are fully vaccinated before the close contact or certain individuals who have recovered from COVID-19.

California employers will need to carefully consider these new standards in developing their plans as the state moves toward reopening on June 15th.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Since California announced plans for “preparing to get back to normal,” many California employers have eyed California’s reopening date of June 15th as the date they can return to the office or resume normal operations. But even though it is clear California wants to reopen the economy, California employers that are preparing their return to work plans are still unsure of what steps they need to ensure a safe workplace for employees as they return. This is largely because California public health and safety agencies continue to impose significant obligations on employers related to COVID-19 preventive measures and management and some requirements are pending changes.

Read the full article at Jackson Lewis OSHA Law Blog.

As the June 15th reopening date approaches, the California Department of Public Health (CDPH) issued a statement describing significantly reduced COVID-19 restrictions.  The CDPH statement confirms all sectors listed in the current California Blueprint for a Safer Economy may return to usual operations based on several general public health recommendations.

Capacity limitations and physical distancing will no longer be required. California will continue to follow CDPH guidance for face coverings. California’s guidance has not been updated to mirror the CDC.  While the Governor and others have indicated California will update its face-covering guidance, it has not yet occurred.

The CDPH’s statement also specifies requirements for mega-events.  Indoor events with greater than 5,000 attendees, or outdoor events with greater than 10,000 attendees, are considered mega-events.  Vaccination verification or negative COVID-19 testing will be required for indoor mega-events and recommended for outdoor mega-events.  These requirements will remain in place at least through October 1, 2021.

Employers should note that while the CDPH will reduce its restrictions, employers must continue to also follow local public health guidance.  Some localities, like Santa Clara County, have more stringent requirements for returning to usual operations.

Finally, the CDPH’s Statement confirms most employers are subject to the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS), which are also currently in a state of flux but will likely be revised on June 3rd.

Jackson Lewis continues to track regulations and requirements affecting the workplace. If you have questions about California’s reopening requirements or related issues, contact a Jackson Lewis attorney to discuss.

In the wake of recent workplace shootings, employers may be wondering if there are any specific regulations to protect employees from such events. Labor Code § 6302(h) as part of the California Occupational Safety and Health Act, excludes “any injury or illness or death caused by the commission of a Penal Code violation” from the definition of serious injury or illness, and Cal/OSHA has no mandatory duty to respond to such incidents. However, Cal/OSHA does have the authority to investigate any workplace accident on a discretionary basis, as provided by Labor Code § 6313(b), which states: “[t]he division may investigate the causes of any other industrial accident or occupational illness which occurs within the state in any employment or place of employment… and shall issue any orders necessary to eliminate the causes and prevent reoccurrence.”

Currently, Cal/OSHA only specifically regulates workplace violence in the Health Care Industry. But there is no regulation covering workplace violence in other industries.

Nevertheless, Cal/OSHA does require employers to regularly identify and evaluate workplace hazards, under California’s version of the general duty clause.  As these incidents become more prevalent, or if an industry has factors that could increase the risk of violence as detailed below, Cal/OSHA may take the position that workplace violence is a recognized hazard that should be mitigated.

Indeed, Cal/OSHA, in its guidance on workplace violence, cites certain factors to consider for the potential of violence including:

  • Exchange of money
  • Working alone at night and during early morning hours
  • Availability of valued items
  • Guarding money or valuable property
  • Performing public safety functions
  • Working with patients, clients, or similar
  • Employees with a history of assaults or who have exhibited belligerent, intimidating, or threatening behavior.

According to Cal/OSHA, workplaces that identify factors for potential workplace violence should include the following in their Injury and Illness Prevention Plan (IIPP):

  • A system for ensuring that employees comply with safe and healthy work practices, including ensuring that all employees, including supervisors and managers, comply with work practices designed to make the workplace more secure and do not engage in threats or physical actions which create a security hazard to other employees, supervisors or managers in the workplace.
  • A system for communicating with employees about workplace security hazards, including a means that employees can use to inform the employer of security hazards at the worksite without fear of reprisal.
  • Procedures for identifying workplace security hazards including scheduled periodic inspections to identify unsafe conditions and work practices whenever the employer is made aware of a new or a previously unrecognized hazard.
  • Procedures for investigating occupational injury or illness arising from a workplace assault or threat of assault.
  • Procedures for correcting unsafe conditions, work practices, and work procedures, including workplace security hazards, and with attention to procedures for protecting employees from physical retaliation for reporting threats.
  • Training and instruction about how to recognize workplace security hazards, measures to prevent workplace assaults, and what to do when an assault occurs, including emergency action and post-emergency procedures.

These policies and procedures should also be mirrored in Employee Handbooks to the extent necessary to ensure communication of the requirements.

If you have questions about including workplace violence prevention information in your IIPP or employee handbook, contact a Jackson Lewis attorney to discuss.

The passage of Prop 24, the California Privacy Rights Act of 2020 (“CPRA”), has caused a bit of confusion among businesses in California.  The confusion stems from the fact that the CPRA has an effective date of January 1, 2023, amending the existing California Consumer Privacy Act (CCPA) when it takes effect, but also immediately extending the current limited exemptions under the CCPA for employment-related data, also to January 1, 2023. (Without the CPRA, the limited exemptions would have already expired.)_ It appears that this labyrinth of amendments, extensions, and exemptions has misled some businesses subject to CCPA (the rules for which will change a little under the CPRA) into believing that they are completely exempt from privacy obligations until 2023 with respect to job applicants, employees, owners, directors, officers, medical staff, and contractors (collectively “employees and applicants”).  This is not the case!  In short, businesses have existing obligations under the CCPA concerning the personal information of their employees and applicants, which became effective on January 1, 2020.

Read the full article at Jackson Lewis Workplace Privacy, Data Management & Security Report.

California passed an expanded COVID-19 Supplemental Paid Sick Leave statute (SPSL) in March, that included coverage for employees to get vaccinated. More recently, the County of Los Angeles passed an urgency ordinance on May 18th that mandates additional paid leave for some employees in unincorporated areas of the county to be vaccinated.

Covered Employers

This new ordinance would cover all employers in the unincorporated areas of the County of Los Angeles.

Paid Time Off Requirement

Full- and part-time employees who have exhausted time off under the state SPSL and who perform any work in the unincorporated areas of Los Angeles County are eligible for the new Los Angeles County paid time off entitlement.

Full-time employees, who are defined as either those employees designated by the employer as full-time or who worked or were scheduled to work on average at least 40 hours per week in the two weeks preceding their leave, are entitled to use up to 4 hours of additional paid time off, per vaccination injection. Part-time employees would be entitled to a prorated portion of additional paid time off.

Notification Requirement

Covered employers must post in a conspicuous place a written notice that will be made available electronically by the Los Angeles County Department of Consumer and Business Affairs. However, the posting is not yet available on the county’s website.

Record-Keeping Requirement

Employers will be required to keep records that show compliance with the ordinance including payroll records for a four-year period.

Operative Period

As an urgency ordinance, the ordinance went into effect immediately. However, the ordinance applies retroactively to January 1, 2021, similar to the state SPSL. The ordinance will sunset on August 31, 2021.

Jackson Lewis will continue to track state and local regulations pertaining to COVID-19 in the workplace. If you have questions about the new Los Angeles County ordinance or issues pertaining to COVID-19 leave requirements, please contact a Jackson Lewis attorney to discuss.

On May 20th, the Cal/OSHA Standards Board was set to vote on revisions to COVID-19 Emergency Temporary Standards (“ETS”).

The evening before the vote the Deputy Chief for the Division of Occupational Safety and Health (“Division”) submitted a request that the Standards Board not to vote on proposed revisions and instead allow the Division to submit new proposals that would align with updated guidance from the CDC and state agencies.

While the proposed changes were intended to adjust the ETS to new developments pertaining to COVID-19 guidance, the Division wanted to ensure the revisions follow the more recent guidance.

The Standards Board still listened to numerous public comments which ranged from employer groups that requested a total revocation of the ETS to employee advocates who requested no change be made at all.

After lengthy public comment, the Standards Board decided to table the vote and scheduled a June 3rd emergency meeting to vote on a revised version of the ETS. The revised version must be posted by May 28, 2021.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA ETS or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Santa Clara County wasted no time in altering its public health regulations in response to the county’s graduation to the ‘yellow tier’ of California’s Blueprint For a Safer Economy on May 18, 2021.  Within hours, the County announced a new Public Health Order that went into effect on May 19, 2021.

The Order retires several of the most burdensome requirements of the County’s October 5, 2020, Risk Reduction Order.  As a result, businesses are no longer required to (1) maximize the number of people who work remotely; (2) submit Social Distancing Protocols to the County Public Health Department; or (3) observe County-issued limitations on in-person capacity.

However, the Order imposes several new requirements on employers, including:

  1. Face Coverings: All businesses must require employees and customers to wear face coverings in accordance with the Mandatory Directive on Use of Face Coverings.
  2. Capacity limitations: Some businesses remain subject to State-issued COVID-19-related capacity limitations and must limit the number of people inside their facilities to a certain percentage of their usual maximum occupancy.
  3. Industry-Specific Requirements: Businesses must follow any industry-specific guidance from the State.
  4. Mandatory Reporting Regarding Personnel Contracting COVID-19: Businesses must require that all personnel immediately alert the business if they test positive for COVID-19 and were present in the workplace either:
    1. within the 48 hours before the onset of symptoms or within 10 days after onset of symptoms if they were symptomatic, or
    2. within 48 hours prior to the date on which they were tested or within 10 days after the date on which they were tested if they were asymptomatic.

If a business learns that any of its personnel have tested positive for COVID-19 and were at the workplace during the specified time frame, the business is required to report the positive case within 24 hours to the County Public Health Department at sccsafeworkplace.org.

Businesses must also comply with all case investigation and contact tracing measures directed by the County.

  1. Ascertainment of Vaccination Status: Businesses must ascertain the vaccination status of all personnel. Under the order, personnel includes employees, contractors, and volunteers. Until a person’s vaccination status is ascertained, they must be treated as not fully vaccinated.  Personnel who decline to provide vaccination status must also be treated as unvaccinated.

Businesses must complete their initial ascertainment of vaccination status for all personnel within 14 days of May 19, 2021, or no later than June 1, 2021.  Thereafter, businesses must obtain updated vaccination status for all personnel who were not fully vaccinated every 14 days (e.g., June 15, June 29, July 13, etc.).  Businesses must maintain appropriate records to demonstrate compliance with this provision.  The County has provided a template self-certification form for this purpose.

  1. Mandatory Rules for Personnel not Fully Vaccinated: Businesses must require all personnel who are not fully vaccinated to:
    1. comply with all applicable provisions of the Mandatory Directive on Use of Face Coverings, and
    2. comply with all applicable provisions of the Health Officer’s Mandatory Directive on Unvaccinated Personnel.

In announcing the new Order, the County’s Health Officer indicated additional changes will occur in conjunction with California’s “reopening” on June 15, 2021.  Dr. Cody predicted the future changes will even further differentiate between vaccinated and unvaccinated people.

Employers doing business in the County must act quickly to reconcile their new obligations under the Order with other California laws, chiefly the Fair Employment and Housing Act (“FEHA”), which is enforced by the state’s Department of Fair Employment and Housing (“DFEH”).  The DFEH previously issued guidance for employers that will assist in this endeavor.

Jackson Lewis continues to track COVID-19 compliance requirements for employers. If you have questions about the Santa Clara Order or related COVID-19 requirements contact a Jackson Lewis attorney to discuss.

As COVID-19-related litigation increases, courts are being called upon to interpret the scope of employers’ duties to protect their employees with relation to the virus.  Last week, a California federal judge dismissed a lawsuit brought by a spouse attempting to hold her husband’s employer liable for her COVID-19 infection.  The judge held that California’s worker’s compensation law barred the wife’s claim, noting that the employer’s duty to provide a safe work environment is limited to the employer’s employees.

In the matter of Corby and Robert Kuciemba vs. Victory Woodworks, Inc., Mr. and Mrs. Kuciemba both tested positive and were hospitalized with COVID-19. Though Mr. Kuciemba was no longer an employee of Victory Woodworks at the time he tested positive, he claimed that he contracted the virus from his former worksite and filed a claim for workers’ compensation. Mrs. Kuciemba also filed a lawsuit against Victory Woodworks on various negligence theories.

In February 2021, the California District Court granted Victory Woodworks’ motion to dismiss Mrs. Kuciemba’s case, citing that her claims were barred because worker’s compensation was the exclusive remedy for her claims.

Mrs. Kuciemba amended her Complaint, arguing that Victory Woodworks did not exercise ordinary care to prevent exposure to COVID-19, as a result of which, Mr. Kuciemba was exposed to the virus, and brought home the virus on his clothes and other personal items.  This legal concept of “take-home exposure” is common in asbestos litigation, and is founded on the idea that employers and premises owners have a duty to exercise ordinary care to prevent exposure to asbestos due to asbestos fibers being carried on workers’ clothing.

The District Court rejected Mrs. Kuciemba’s argument, finding that she failed to plead a plausible claim. Specifically, the Court found the employer’s duty was only to provide a safe workplace to its employees.  The Court found this duty did not extend to nonemployees who contract a viral infection away from the workplace.

While employers should continue to track and comply with federal, state, and local mandates, this ruling suggests that California employers do not need to implement special protections for, or otherwise owe duties to protect individuals who are not their employees from COVID-19.

Jackson Lewis continues to track COVID-19 related developments. If you have questions about COVID-19 workplace compliance contact a Jackson Lewis attorney to discuss.

On May 13th, the Center for Disease Control (CDC) updated its guidance for fully vaccinated individuals.  The new guidance identified circumstances in which fully vaccinated individuals do not have to wear face coverings, including indoors. However, fully vaccinated individuals must still comply with federal, state, local, or workplace guidance for face coverings. Earlier in the month, the CDC also issued guidance easing outdoor mask requirements in non-crowded gatherings or when gathering with other vaccinated individuals.

In response to the most recent update to CDC guidance, Governor Newsom stated in a press briefing that subject to certain conditions being met, California expects to eliminate its outdoor mask mandates on June 15th.  The Governor also indicated there may be modification of indoor mask mandates at that time, but certain mask guidelines and mandates are expected to continue beyond June 15th for indoor activities.

At the time the CDC relaxed its outdoor mask requirements, the California Department of Public Health (CDPH) cautioned that employers must still comply with Cal OSHA COVID-19 Emergency Temporary Standards. Those standards include ensuring that workers are provided and properly wear face coverings. The guidance from the CDPH also specifies individuals who are working alone in a closed office or room do not have to wear a face covering. Workers who wear respiratory protection also are exempted from face-covering requirements.  Further, individuals with a medical condition who are employed in a job involving regular contact with others must wear a non-restrictive alternative, such as a face shield with a drape on the bottom, as long as their condition permits it.

In light of Governor Newsom’s comments, the CDPH’s guidance, and the Cal OSHA Emergency Temporary Standards, employers with employees in California must continue to follow all state and any applicable local mask mandates, until such time as those mandates are modified.

Jackson Lewis continues to track guidance and regulations pertaining to COVID-19 and the workplace. If you have questions about COVID-19 compliance in the workplace or related issues, contact a Jackson Lewis attorney to discuss.