Employment Law Bulletin | May 12, 2022

CAL/OSHA Revises and Adopts Emergency Temporary Standards for a Third Time

On May 6, 2022, the California Occupational Safety and Health Standards Board (“Cal/OSHA”) readopted the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards for the third time (“Revised ETS”).  The Revised ETS will be in effect until December 31, 2022, subject to change only if California Department of Public Health (“CDPH”) guidance changes.  The Revised ETS can be found here.  Cal/OSHA’s FAQs on the Revised ETS can be found here (general FAQs) and here (FAQs specific to the changes).  Terms capitalized in this article are defined in the Revised ETS.

The latest changes reflect the agency’s desire to attain flexibility and consistency with the CDPH.  In an apparent attempt to recognize that the recent COVID-19 variant attacks both vaccinated and unvaccinated individuals, the Revised ETS removes all distinctions based on vaccination status, making the ETS applicable to all employees.  Below is a summary of the major changes that affect employers.

Revised Testing Requirements

Regardless of the employee’s vaccination status, employers must offer testing at no cost and during paid work time to all symptomatic employees and employees with a workplace Close Contact.  However, employers are not required to offer testing to employees who have recently recovered (within 90 days) from COVID-19.

The Revised ETS also now permits the use of self-administered and self-read tests, so long as the employee provides independent verification of the results, such as a time-stamped photograph of the results.

Revised Face Covering Requirements

Face coverings are no longer mandatory indoors for unvaccinated employees.  However, all employees are required to wear masks under the following circumstances:

  • If the CDPH issues an order requiring them.  Currently, face coverings are required in the workplaces listed below.  Review CDPH guidance here, as these are subject to change.
    • Emergency shelters
    • Cooling and heating centers
    • Healthcare settings
    • Correctional facilities and detention centers
    • Homeless shelters
    • Long term care settings and adult and senior care facilities
  • When the employee has tested positive for COVID-19 and returns to work within ten days of experiencing symptoms or receiving a positive test result; or
  • When the employee is part of an Exposed Group during a workplace Outbreak or Major Outbreak.

If an employee requests an N-95 respirator, employers must provide it to the employee free of charge regardless of vaccination status (previously only required for unvaccinated employees).

Revised Physical Distancing Requirements

All physical distancing requirements have been removed unless there is an Outbreak, a Major Outbreak, or an ongoing requirement to assess and prevent the transmission of disease.

Partitions and barriers are no longer necessary to reduce COVID-19 transmission.

Revised Exclusion Requirements

The exclusion of employees from the workplace is now required pursuant to CDPH guidelines. Click here for the current CDPH guidelines to ensure compliance.

Employer-Provided Transportation and Housing Requirements

Employee vaccination status is no longer a differentiating factor in determining what requirements apply for employer-provided housing and transportation; rather, the requirements apply to all employees.

Cleaning and Disinfection Requirements Removed

Cleaning and disinfecting requirements are no longer necessary under the Revised ETS.

Requirements from the Previous ETS That Have Not Changed

The following requirements remain the same under the Revised ETS:

  • Establishing, implementing, and maintaining an effective written COVID-19 Prevention Program.
  • Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
  • Providing notification to public health departments of Outbreaks.
  • Providing notification to employees of potential exposure and Close Contacts.
  • Offering COVID-19 testing after potential exposures.
  • Requirements for responding to COVID-19 cases and Outbreaks.
  • Isolation and exclusion pay requirements.
  • Basic prevention requirements for employer-provided housing and transportation.

Conclusion

Failure to implement and enforce the Revised ETS in your workplace exposes your business to Cal/OSHA fines, workers’ compensation liability for workplace COVID-19 cases, and employee claims.  If you would like assistance in understanding the Revised ETS, investigating workplace exposures, or developing the required notices to employees, please contact an SMT Employment Attorney.  We are here to help you.

If SMT previously created an ETS-compliant Protocol, Workplace Investigation, and Notice packet for your business, please reach out to us so we can prepare an updated packet that complies with the Revised ETS requirements.  If you haven’t yet received a packet and would like to have one prepared so you will be ready to quickly investigate and notify your employees of a COVID-19 exposure in the workplace, please contact an SMT Employment Attorney.

Kari Brown
Betsey Cunningham

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | March 3, 2022

New Orders Loosen Mask Requirements for the General Public and Employees In Most Workplaces

Effective March 1, 2022, the California Department of Public Health’s (CDPH) face covering requirements for the general public and most workplaces have been downgraded from mandatory to a “strong recommendation” regardless of vaccination status.  Sonoma County is following the state guidance and has dropped its more restrictive order.

Universal masking is still required in the following specified high-risk settings:

  • Indoors in K-12 schools, childcare (through March 11, 2022)
  • On public transit
  • Emergency shelters and cooling and heating centers
  • Healthcare settings
  • State and local correctional facilities and detention centers
  • Homeless shelters
  • Long Term Care Settings & Adult and Senior Care Facilities

Other workplace scenarios where mandatory face coverings are required regardless of vaccination status include:

  • employers with onsite indoor health screenings:  screeners and the employees being screened must wear face coverings
  • if there is an “outbreak” or “major outbreak” (as defined by Title 8 California Code of Regulations sections 3205.1 and 3205.2) employees in the exposed group must wear face coverings when indoors
  • employees who have had a COVID-19 exposure and are exempt from quarantine or are ending their quarantine after Day 5 per the Cal-OSHA COVID-19 Isolation and Quarantine Guidelines
  • employees who have tested positive for COVID-19 and are returning to work after day 5 per the Cal-OSHA COVID-19 Isolation and Quarantine Guidelines.

While masking is no longer mandatory in most workplaces, employers may impose their own face covering requirements.  Employees must also be permitted to wear face coverings if they wish to do so.

The Cal-OSHA COVID-19 Isolation and Quarantine guidelines published on January 14, 2022 remain in effect for employees who test positive for COVID-19 or were exposed to someone with COVID-19.

While the CDPH, Cal-OSHA and Sonoma County are now in line with regard to face covering requirements, some California cities and counties continue to have their own requirements.  Be sure to check your local jurisdiction or contact an SMT employment attorney if you need assistance.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | February 10, 2022

State of California Revives COVID-19 Supplemental Paid Sick Leave (Again)
Take Action Now!

Yesterday afternoon, Governor Newsom approved SB 114, reviving COVID-19 Supplemental Paid Sick Leave (SPSL) through September 30, 2022.  Employers with more than 25 employees are expected to comply with the new requirements starting February 19, 2022, so it is critical to act now.

Eligible Employees:  An employee is eligible for SPSL if the employee makes an oral or written request for time off and is unable to work or telework for one of the reasons listed below.  The 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 CDC, or a local health officer with jurisdiction over the workplace;
  • has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  • is attending an appointment for themselves or a family member to receive a vaccine or booster for protection against contracting COVID-19;
  • is experiencing symptoms or caring for a family member experiencing symptoms related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework;
  • is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • is caring for a family member who is subject to a quarantine or isolation order or guidelines, or who has been advised to self-quarantine by a healthcare provider; or
  • is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.

Amount of Leave:  Full-time employees are eligible for up to 40 hours of SPSL for the reasons stated above.  Part-time employees who work a normal weekly schedule are entitled to SPSL in an amount equal to the total number of hours they are typically scheduled to work in a one-week period.  Part-time employees with variable schedules should receive SPSL that is either 1) seven times the average number of hours worked each day in the preceding six months, or 2) seven times the number of hours the employee has worked for the employer if the employee has worked for the employer for less than six months but more than seven days.  Employees who have worked seven days or fewer can expect to receive SPSL equal to the total number of hours they have worked for the employer.

Additional SPSL:  Employees are also entitled to an additional 40 hours of SPSL if they or their family member for whom they are providing care tests positive for COVID-19.  This brings the total available hours of SPSL to 80 hours for full-time employees.  The additional SPSL should be pro-rated for part-time employees per the calculations stated above.

Employers may require employees who test positive for COVID-19 to submit to a diagnostic test on or after the 5th day of the initial positive test and to provide documentation of the result.  If the employer chooses to require a test, the test must be made available at no cost to the employee.

Employers may also require employees to provide documentation of a family member’s test result before paying out the additional SPSL.  Employers are under no obligation to pay out the additional SPSL if the employee refuses to provide documentation either for themselves or a family member.

Limitations:  Employers cannot require employees to exhaust any other type of paid leave before using SPSL.  However, employers may limit the use of SPSL to a total of 24 hours for reasons related to obtaining or recovering from each vaccine or booster unless the employee provides verification from a health care provider that the employee or family member is continuing to experience symptoms related to a vaccine or booster.

NOTE:  The SPSL requirement does not relieve employers of the CAL/OSHA requirement to maintain the wages of employees who are excluded from the workplace because of a workplace exposure to COVID-19.  An employer may not require an employee to exhaust their SPSL before satisfying the CAL/OSHA exclusion pay requirement.

Retroactivity:  SB 114 is retroactive to January 1, 2022, meaning that an employee must be paid SPSL for any time previously taken off work for the reasons above and have their vacation and California paid sick leave balances replenished (if vacation or sick leave was previously applied to the absence).  The retroactive payment must be paid on or before the payday for the next full pay period after the employee makes the request for retroactive SPSL and should be reflected on the employee’s wage statement.  SPSL is in addition to any paid sick leave already required under California law, but employers who provided special COVID-related sick leave benefits to employees after January 1, 2022, in amounts equal to or greater than what SB 114 requires may credit that pay towards this obligation.

Pay Amount:  As under prior law, employees must be paid at their regular rate of pay up to a maximum of $511 per day, not to exceed $5,110, but SB 114 makes calculating the regular rate of pay easier than its predecessors.  SPSL for non-exempt employees must be calculated using either (i) the employee’s regular rate of pay during the workweek in which they take the leave regardless of whether they worked overtime that week, or (ii) by dividing the total wages, including overtime, by the total hours worked in the past 90 days of employment.  SPSL pay for exempt employees should be calculated in the same manner as the employer uses to calculate wages for other forms of paid leave.

Notice:  Within seven days of the law’s enactment, the Labor Commissioner will publish a notice that employers are required to post or provide to employees.  For employees who do not frequent the workplace, the notice may be e-mailed.

Paystubs:  Prior SPSL law required employers to list the amount of available SPSL on wage statements or in a separate writing.  Under the new law, employers only need to list the amount of leave that is used.  If an employee has not yet used any SPSL, their statement must list “zero.”

Tax Credit & Recordkeeping:  Although the Governor also signed SB 113 yesterday, which provides for a variety of tax credits and relief to businesses in certain circumstances, there does not appear to be a specific tax credit to neutralize the cost of paying out SPSL.  Even so, we recommend seeking advice from your tax advisor on whether the benefits of SB 113 apply to your business.  It is also still very important to keep good records of SPSL use and to preserve them for at least three years as required by law.

Firefighters and In-Home Service Providers:  SB 114 contains different rules for these categories of workers.  If you have employees who fit these descriptions, contact an SMT employment law attorney for more information.

Compliance Deadline:
Employers covered under SB 114 must comply within 10 days of its enactment, so it is important to act quickly to comply with the new law’s notification, paystub and paid sick leave requirements.

If you have questions or need help navigating the new California SPSL law, please contact an SMT employment law attorney at info@smlaw.com.

Kari J. Brown

CAL/OSHA Updates Its Model COVID Prevention Plan

Under the CAL/OSHA Emergency Temporary Standards (ETS), all California employers are required to develop and implement a written COVID Protection Plan (CPP) that contains business-specific information on topics ranging from training on personal protective equipment to identifying safety hazards in the workplace.  To assist employers with this obligation, CAL/OSHA made available a Model CPP template on their website back in late 2020.  The Model CPP was recently updated on January 14, 2022 to reflect changes to the ETS that went into effect in January.  The template can be found here.

If you have a CPP currently in place, please take the time to compare the Model CPP against your current plan to ensure it is compliant.  If you haven’t reached this item on your to do list, we recommend utilizing the Model CPP as a starting point. As always, SMT’s employment attorneys are here to assist you with this process.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | January 18, 2022

CDPH Requires Health Care Workers to Receive Booster Dose by February 1, 2022

A recent California Department of Public Health (CDPH) order requires health care workers to receive a COVID-19 booster vaccination by February 1, 2022.  The Order is based on a finding that current vaccine requirements are not proving sufficient in health care settings to prevent transmission of the more transmissible Omicron variant.  The Order applies to the following health care facilities:

  • General Acute Care Hospitals
  • Skilled Nursing Facilities (including Subacute Facilities)
  • Intermediate Care Facilities
  • Acute Psychiatric Hospitals
  • Adult Day Health Care Centers
  • Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
  • Ambulatory Surgery Centers
  • Chemical Dependency Recovery Hospitals
  • Clinics & Doctor Offices (including behavioral health, surgical)
  • Congregate Living Health Facilities
  • Dialysis Centers
  • Hospice Facilities
  • Pediatric Day Health and Respite Care Facilities
  • Residential Substance Use Treatment and Mental Health Treatment Facilities

Under the Order, health care workers must be fully vaccinated and boosted for COVID-19 as set forth in the table below.  Workers currently eligible for booster doses per the Table below must receive their booster dose by no later than February 1, 2022.  Workers not yet eligible for boosters must be in compliance no later than 15 days after the recommended timeframe above for receiving the booster dose.

COVID-19 Vaccine Primary vaccination series When to get the vaccine booster dose Which vaccine booster dose to receive
Moderna or Pfizer 1st and 2nd doses Booster dose 6 mos. after 2nd dose Any of the COVID-19 vaccines authorized in the United States may be used for the booster dose, but either Moderna or Pfizer are preferred.
Johnson and Johnson 1st dose Booster dose 2 mos. after 1st dose Any of the COVID-19 vaccines authorized in the United States may be used for the booster dose, but either Moderna or Pfizer are preferred.
World Health Organization (WHO) emergency use listing COVID-19 vaccine All recommended doses Booster dose 6 mos. after getting all recommended doses Single booster dose of Pfizer COVID-19 vaccine
A mix and match series composed of any combination of FDA-approved, FDA-authorized, or WHO-EUL COVID-19 vaccines All recommended doses Booster dose 6 mos. after getting all recommended doses Single booster dose of Pfizer COVID-19 vaccine

Workers may be exempt from the vaccination requirements only upon providing the employer with a declination form, signed by the individual, stating either of the following: (1) the worker is declining vaccination based on Religious Beliefs, or (2) the worker is excused from receiving any COVID-19 vaccine due to Qualifying Medical Reasons.

To be eligible for a Qualified Medical Reasons exemption, the worker must also provide to their employer a written statement signed by a physician, nurse practitioner, or other licensed medical professional practicing under the license of a physician stating that the individual qualifies for the exemption (but the statement should not describe the underlying medical condition or disability) and indicating the probable duration of the worker’s inability to receive the vaccine (or if the duration is unknown or permanent, so indicate).

Unvaccinated exempt employees and booster-eligible workers who have not yet received their booster must:

  1. wear a surgical mask or higher-level respirator approved by the National Institute of Occupational Safety and Health (NIOSH), such as an N95 filtering facepiece respirator, at all times while in the facility; and
  2. test twice weekly (employees in acute health care and long-term care settings) or once weekly (workers in other health care settings)

Facilities must begin testing all booster-eligible workers who have not yet received their booster by January 7, 2021.  Employers must continue testing unvaccinated employees with medical and religious exemptions as required by prior orders.  FAQs regarding the new Order can be found here.

CDPH Issues Temporary Isolation, Quarantine and Return to Work Criteria for Employees of Hospitals and Skilled Nursing Facilities

As a result of a critical staffing shortage in hospitals and skilled nursing facilities, the California Department of Public Health (CDPH) has issued temporary guidance allowing workers in hospitals and skilled nursing facilities to return to work immediately, without quarantine, isolation or testing, if they are asymptomatic after being exposed to or testing positive for COVID-19.  Such employees must wear a N95 respirator.  Facilities implementing this change must have made every attempt to bring in additional registry or contract staff and must have considered modifications to non-essential procedures.

The Guidance provides that health care workers who have been exposed to or tested positive for COVID-19 should preferably be assigned to work with COVID-19 positive patients.  However, the Guidelines acknowledge this may not always be possible in areas where facilities are experiencing extreme staffing shortages and settings such as the emergency department where a patient’s COVID-19 status is unknown.

The temporary Guidance can be found here.

At SMT, we realize the ever-changing state and federal COVID laws are complicated and have great impact on your business or organization.  Please reach out to an SMT employment attorney if we can be of help.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | January 13, 2022

US Supreme Court Blocks Biden-OSHA Mandatory Vaccine Mandate for Employers of 100 or More

Today, the United States Supreme Court blocked the Occupational Safety and Health Administration’s (OSHA) “vaccine or test” mandate to private employers of 100 or more employees.  The Court concluded that OSHA did not have the authority to impose the rule.

Note, this ruling does not affect California employers’ duty to comply with the revised California Occupational Safety and Health Administration (Cal-OSHA) Emergency Temporary Standard (ETS).  The Cal-OSHA ETS takes effect tomorrow, January 14, 2022.  For information on the Cal-OSHA ETS, see our December 23, 2021 Employment Law Bulletin.

US Supreme Court Upholds the Secretary of Health and Human Services’ Vaccine Mandate for Employees of Health Care Facilities that Participate in Medicare and Medicaid Programs

The United States Supreme Court ruled today that the Secretary of Health and Human Services properly exercised his authority in issuing a vaccine mandate for employees of health care facilities that participate in Medicare and Medicaid programs.  Employers who receive Medicare and Medicaid funding must ensure that their employees are vaccinated against COVID-19.  Weekly testing in lieu of vaccination is only available for employees with a medical or religious exemption as required by law.

At SMT, we realize the ever-changing state and federal COVID laws are complicated and have great impact on your business or organization.  Please reach out to an SMT employment attorney if we can be of help.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | January 12, 2022

In this month’s Employment Law Bulletin we bring you our 2022 Employment Law Update Action Items.  Employers can use this handy list to help ensure their organization is in compliance with new laws that took effect in January 2022.  Please reach out to an SMT employment attorney if you have questions.  We are here to help.

2022 Employment Law Update Action Items

2022 CA Minimum Wage Increase

  • Review hourly pay rates and raise if necessary
  • Review exempt EE salaries and raise if necessary
  • Review commissioned EE compensation to determine if they still meet the threshold
  • Analyze any formula based on new MW
  • Make sure you have the current CA MW poster

2022 City Minimum Wage Ordinances

  • If you have EEs who work any hours in a city with a MW ordinance, check to see if they fit the definition of EE such that the MW ordinance applies to them
  • Review hourly pay rates and raise if necessary (or simplify?)
  • Make sure you have the current MW poster (for each city where you have EEs)

Sub-minimum Wages for Individuals with Disabilities

  • Increase sub-minimum wage earners to MW; or
  • Review SB 639 to make sure you can meet license renewal requirements, but plan for MW in the future

Overtime for Agricultural Workers Act of 2016

  • ERs with > 25 EEs:  implement new 8/day; 40/week OT standard now
  • ERs with 1-25 EEs: implement new 9.5/day, 55/week OT standard now and plan for future changes
  • The law is triggered by ER size, so pay attention to fluctuation in EE counts and apply the correct OT rule
  • Review labor demands and costs and start planning for future changes

Rest/Meal Premiums-RROP (Non-exempt EEs only)

  • Review compensation packages for non-exempt EEs
  • Evaluate RROP issues for break premium pay, overtime, sick leave
  • Check payroll system programming
  • Consider effect on RROP before adopting “hourly plus” compensation plans

2022 IRS Mileage Rate

  • Ensure EEs using personal vehicles for business are being properly reimbursed for business mileage
  • Inform your payroll/finance department of the mileage rate change so EEs are properly reimbursed

CalSavers

  • If you do not offer a retirement plan and you have 5 or more EEs
    • Register with CalSavers
    • Issue required notices to EEs
    • Facilitate EE deductions

Independent Contractors

  • Analyze where this applies to your business/organization
  • Review accounts payable records and identify anyone paid on 1099 basis
  • Review existing IKor Agreements

Prevent Wage Theft Claims

  • Provide wage and hour training for managers and supervisors in payroll, HR, and operations on the primary wage and hour issues
  • Remind managers and supervisors that EEs must not work off the clock, and meal and rest breaks must be provided
  • Train EEs on time-keeping issues upon hire and on an ongoing basis
  • Obtain signed acknowledgements of policies and agreements to immediately report any complaints about wage and hour issues
  • Evaluate timekeeping system
  • Establish method of complaint for wage and hour violations
  • Audit timesheets

Electronic Delivery of Workplace Notices

  • For EEs working remotely or in locations where postings cannot be displayed
    • Email postings
    • Print and save email and attachments in EE personnel files
    • Ensure postings are also in the workplace

California Family Rights Act (CFRA)

  • Update Employee Handbook/policies
  • Update CFRA leave of absence request forms
  • Update Notice of Eligibility & Rights and Responsibilities
  • Be sure you are using CA forms; not federal FMLA forms
  • Watch for updated CFRA pamphlet

Restrictions on Nondisclosure Provisions

  • Locate all ER agreements, policies, etc. that have any form of nondisclosure or nondisparagement clause
  • Review all agreements and consult counsel about revisions

Severance Agreements

  • Review and revise severance/separation agreements to comply with the new law

OSHA & CAL/OSHA COVID-19 ETS

  • Prepare OSHA vaccination & testing plan, if applicable
  • Consider preparing vaccination & testing plan in the event that the Supreme Court affirms the federal OSHA mandate and CAL/OSHA adopts
  • Create COVID-19 Protection Plan (CPP) or supplement current IIPP
  • Draft/Obtain Notices to communicate required information
  • Develop protocols to ensure compliance with short deadlines

Mandated COVID-19 Reporting

  • Be prepared to quickly notify EEs, IKors, ERs of subcontractors, EE representatives, the public health department and your worker’s compensation carrier as required
  • Contact SMT to develop protocols and train staff on how to act quickly when notified of a positive test result

Lisa Ann Hilario and Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Trust and Estate Bulletin | December 27, 2021

Question: When was the last time you checked your beneficiary designations on your Retirement Accounts?

Changes in the tax laws in recent years have made revisiting your beneficiary designations something that should be done more regularly.  Not only do you want to be sure those designations are consistent with your overall estate planning wishes, it is important to confirm that your designations dovetail with the rest of your estate plan and meet the requirements of the ever-changing tax rules.

For example, the SECURE Act (effective January 2020), changed the rules requiring distributions from retirement accounts to a non-spouse beneficiary. Inherited IRA distributions generally must now be taken within 10 years.  If you have named a trust or sub-trust as a beneficiary of a retirement plan, you may want to modify the language of your trust to take into account this new “10-year rule.”  That is because the changed law alters what may seem to be the “optimal” payout of retirement plan benefits to a beneficiary.  Modification may also be necessary to avoid negative tax consequences that could result when a non-person (entity) is, or could be, a recipient of IRA distributions.  A review of your estate plan, including beneficiary designations, by your attorney will help determine if any changes or updates should be made as a result of the changes in the applicable tax law.

Other changes in circumstances warrant revisiting of your beneficiary designations, such as a child having outgrown the need for a sub-trust for his or her benefit.  For these reasons, we want to encourage you to contact your estate planning attorney to discuss whether any updates to your estate plan need to be made.

Spaulding McCullough & Tansil LLP
SMT Estate Planning Team

Albert G. Handelman | Kevin J. McCullough | Carmen D. Sinigiani | Barbara D. Gallagher | Mark A. Miller | Candice L. Raposo | Ashlee M. Hellman

Employment Law Bulletin | December 23, 2021

Revised Cal-OSHA Emergency Temporary Standards Take Effect January 14, 2022

On December 16, the California Occupational Safety and Health Standards Board readopted the Cal-OSHA COVID-19 Prevention Emergency Temporary Standards for the second time (“Revised ETS”).  While the prior ETS, adopted in June 2021, loosened many restrictions for Fully Vaccinated employees, the Revised ETS deletes some of the distinctions based on vaccination status and imposes stricter regulations on mask-wearing, physical distancing and return to work rules for employees who have been in “Close Contact” with a COVID-19 Case in the workplace.

The Revised ETS takes effect on January 14, 2022, and will expire April 14, 2022; however Governor Newsom issued an executive order that allows Cal-OSHA to readopt another ETS up through December 31, 2022.

The June 17, 2021 ETS with the December 2021 revisions marked can be found here.  Cal-OSHA’s Fact Sheet on the Revised ETS can be found here.  All capitalized terms in this article are defined in the Revised ETS.

Covered Workplaces

The Revised ETS applies to all workplaces except: (1) work locations with one employee who does not have contact with other persons; (2) employees working from home; (3) employees teleworking from a location of the employee’s choice, which is not under the control of the employer; and (4) employees subject to the Aerosol Transmissible Diseases Cal-OSHA standard.

Revised Employee Symptom Screening Requirements

Employers who conduct COVID-19 symptom screening indoors at the workplace, must ensure that Face Coverings are used during the screening by both screeners and employees.  (The previous ETS did not require Face Coverings for Fully Vaccinated individuals.)

Revised Testing Requirements for “Close Contacts” in the Workplace

COVID-19 testing must now be offered at no cost to all employees who had a Close Contact with a COVID-19 Case in the workplace.  (The previous ETS did not require employer-provided testing for employees who were vaccinated if they were not symptomatic.)

Revised Face Covering Requirements

In addition to the previous Face Covering requirements, Face Coverings must now also:

  • be of a fabric that does not let light pass through when held up to a light source
  • be a solid piece of material without slits, visible holes, or punctures
  • completely cover the nose and mouth
  • fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face
  • be secured to the head with ties, ear loops or elastic bands that go behind the head (if gaiters are worn, they must have two layers of fabric or be folded to make two layers).

Clear face coverings or cloth face coverings with a clear plastic panel that, despite the non-cloth material allowing light to pass through, otherwise meet the mask requirements, may be used to facilitate communication with people who are deaf, hard-of-hearing or need to see a speaker’s mouth or facial expressions to understand speech or sign language.

The prior ETS exempted employees from wearing Face Coverings due to a medical condition, mental health condition, or disability if they wore an effective non-restrictive alternative, such as a face shield with a drape on the bottom, if their condition or disability permitted. In recognition of the fact that some medial conditions/disabilities do not permit a non-restrictive alternative, the Revised ETS requires such unmasked employees to be at least six feet apart from all other persons, and either (1) Fully Vaccinated, or (2) tested at least weekly for COVID-19 during paid time at no cost to the employee.

Expanded Employer Notification Requirements

Within one business day of receiving notice of a COVID-19 Case, employers must:

  • notify all employees and independent contractors who were on the premises at the same worksite as the COVID-19 Case during the High Risk Exposure Period; and
  • provide all employees who had Close Contact with a COVID-19 Case with the notice required by Labor Code section 6409.6(a)(2) and (c).  This notice must also be provided to the employee’s representative (if any).

The notices must be written, easy to understand, identify the employer’s cleaning and disinfection plan, and sent in the manner the employer usually uses to communicate employment-related information.

Expanded Employer Benefit and Pay Requirements for Employees Who Had a “Close Contact” in the Workplace

The prior ETS did not require employers to provide COVID-19-related benefits and pay to employees who had a Close Contact in the workplace if they were Fully Vaccinated before the contact and did not have COVID-19 Symptoms.  The Revised ETS requires employers to provide such benefits and exclusion pay to all employees who had a Close Contact in the workplace including:

  • COVID-19 Testing available at no cost, during paid time
  • COVID-19-related benefits, including legally mandated sick and vaccination leave, if applicable, workers’ compensation law, local governmental requirements, the employer’s own leave policies, and any leave guaranteed by contract; and
  • Exclusion Pay and job protection – unless the employer can prove that the Close Contact was not-work related, the employer must continue and maintain the employee’s earnings, wages, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job. Employers may use employer-provided employee sick leave for this purpose to the extent permitted by law.

Revised Return to Work Rules for Employees Who Had a “Close Contact” with a “COVID-19 Case”

Employees who had a Close Contact, but never developed COVID-19 Symptoms may return to work right away if:

  • they were Fully Vaccinated before the Close Contact and they wear a face covering and maintain six feet of distance from others at the workplace for 14 days following the last date of Close Contact; or
  • they had COVID-19 in the past and have remained symptom free, provided it is within the first 90 days after the initial onset of COVID-19 Symptoms and they maintain six feet of distance from others at the workplace for 14 days following the last date of Close Contact.

Unvaccinated Employees who had a Close Contact, but never developed COVID-19 Symptoms may return to work after:

  • 10 days have passed since the last known Close Contact if the person wears a Face Covering and maintains six feet of distance from others while at the workplace for 14 days following the last date of Close Contact.
  • 7 days have passed since the last known Close Contact; the person tested negative for COVID-19 using a COVID-19 test with the specimen taken at least 5 days after the last known Close Contact; and the person wears a Face Covering and maintains six feet of distance from others while at the workplace for 14 days following the last date of Close Contact.

Employees who had a Close Contact and developed COVID-19 Symptoms cannot return to work until:

  • At least 24 hours have passed since a fever of 100.4 degrees or higher has resolved without the use of fever-reducing medications; and
  • COVID-19 Symptoms have improved; and
  • At least 10 days have passed since COVID-19 Symptoms first appeared.

Conclusion

While the 29-page Revised ETS is detailed and complex, it is designed to protect your employees and those with whom you do business, making compliance with its requirements a vital component of protecting your business and avoiding workplace closures due to COVID-19 exposure.  While the likelihood of Cal-OSHA performing a random audit of your business may be small, most Cal-OSHA enforcement actions arise from employee complaints.  Failure to implement and enforce the Revised ETS in your workplace exposes your business not only to Cal-OSHA fines, but also to workers compensation liability for workplace COVID-19 cases and employee claims.
If you would like assistance in understanding the Revised ETS, investigating workplace exposures or developing the required notices to employees, do not hesitate to contact an SMT Employment attorney.  We are here to help you.

If SMT previously created an ETS-compliant Protocol, Workplace Investigation and Notice packet for your business, please reach out to us so we can prepare an updated packet that complies with the Revised ETS requirements.  If you haven’t yet received a packet and would like to have one prepared so you will be ready to quickly investigate and notify your employees of a COVID-19 exposure in the workplace, please contact an SMT Employment attorney.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | December 20, 2021

OSHA COVID-19 ETS Vaccination and Testing Requirements Reinstated

On November 10, 2021, we reported on the new federal Emergency Temporary Standards (ETS) issued by OSHA at President Biden’s direction.  As a reminder, the central focus of the ETS is a requirement that employers with 100 or more total employees implement and enforce a mandatory vaccination and testing program for all employees.  More information on the details of the ETS requirements can be found in our November newsletter.

In response to a barrage of lawsuits challenging the legality of the ETS, the Fifth Circuit Court of Appeals promptly stayed enforcement of the ETS so that the courts could have time to look into the issues.  On Friday, December 17, citing the need to protect the health of the public against further spread of infection, the Sixth Circuit Court of Appeals lifted the stay making the ETS effective immediately and allowing OSHA to proceed with enforcement of the rules.

The good news is that OSHA announced that it will postpone enforcement of the compliance deadlines set forth in the ETS.  Enforcement of the December 5, 2021 compliance deadline for program implementation, masking, isolation and paid time off requirements has been extended to January 10, 2022, while enforcement of the January 4, 2022 compliance deadline for testing requirements has been extended to February 9, 2022.

OSHA hopes that these extensions will give employers a little breathing room to get in step with the ETS if they have not started the process already.  The agency emphasized that it will use its discretion in levying citations and fines for violations of the ETS with employers who exercise reasonable, good faith efforts to achieve compliance within these new timeframes.

If you have 100 or more employees and have not begun preparing your business for compliance with the ETS, it is important to move quickly now.  Contact an SMT employment attorney for guidance on these new regulations.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | November 10, 2021

OSHA Releases Guidance on Mandatory Vaccination and Testing Programs

Since President Biden’s announcement in September, we have been waiting for the federal government to provide regulatory guidance for its mandatory vaccination program.  Our wait ended on November 5 when OSHA issued the new Emergency Temporary Standards (ETS). However, shortly after the legislation became effective, lawsuits were filed challenging the law’s constitutionality, and the Fifth Circuit granted an emergency motion to stay enforcement of the ETS pending further action by the Court. Cal-OSHA is planning to release its own revised ETS vaccination requirements, which are expected to be broader in application.

While employers may be inclined to wait for the dust to settle, we recommend a more proactive approach, especially in light of the fast-approaching compliance deadlines of December 5, 2021 and January 4, 2022 (see below). In the next few weeks, businesses with 100 employees or more should become familiar with the ETS requirements to ensure swift compliance and reduce the risk of potential penalties. We’ve provided the highlights of the ETS below, but as with all things COVID, the regulations are complicated and cannot be fully explained in our bulletin. Please reach out to an SMT employment law attorney if you have questions about how these new rules apply to your business.

Who is Covered?  Employers with 100 or more total employees (regardless of location) are covered by the new OSHA Emergency Temporary Standards.

The new requirements do not apply to (1) workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or (2) settings where any employee provides healthcare services or healthcare support services which are covered under separate regulations that require mandatory vaccination but which do not have a testing component.

Do the Rules Apply to All Employees? The requirements apply to all employees who work for a covered employer except for those who do not report to a workplace where coworkers or customers are present, or those who work exclusively from home or outdoors.

What is Required?

  • Establish, Implement and Enforce a Written Policy:  Employers can choose between a mandatory vaccination policy or a policy that allows employees to choose between becoming fully vaccinated or, in the alternative, submitting to weekly COVID testing.  The difference between the two options is that the fully vaxed/testing option allows employers to retain unvaccinated employees by having them test regardless of whether the employee has a valid medical or religious exemption while a mandatory vaccination policy would result in the potential termination of any unvaccinated employee who does not have an exemption.  The regulations make clear that employees with valid medical or religious exemptions may be entitled to a reasonable accommodation so long as there is no undue hardship on the employer.

Regardless of which policy is chosen, employers must make sure it is in writing and communicated to employees in a language and method the employees can understand.

  • Determine Vaccination Status of All Employees:  Employers must require employees to provide proof of full or partial vaccination.  Employers with prior documented proof of vaccination status do not have to reassess or obtain new proof of vaccination status.
  • Acceptable Proof Includes:
    • The record of immunization from a health care provider or pharmacy;
    • A copy of the COVID-19 Vaccination Record Card;
    • A copy of medical records documenting the vaccination;
    • A copy of immunization records from a public health, state, or tribal immunization information system; or
    • A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
    • If an employee is unable to provide one of the above forms listed of proof, the employee may submit a signed attestation, but note that the regulations require the attestation to include very specific language. Contact an SMT employment attorney for additional guidance.

The form of proof must be preserved in a confidential medical file and is in addition to the vaccination status roster and testing record requirements listed below. An employee who is partially vaccinated or who fails to submit acceptable proof or a signed statement must be treated as unvaccinated.

  • Pay for Testing:  Employers are not required to pay for any costs associated with testing under the OSHA ETS, but California employers who require testing must continue to pay for the costs.  Also, employers who are not covered by these requirements but who require mandatory vaccination must continue to pay for the cost of testing and time spent obtaining the test.
  • Provide Paid Time Off for Vaccination and Recovery:  Employers must also provide a reasonable amount of time off for employees to receive each dose of the vaccine.  The regulations state that up to 4 hours of this time, which should include travel time, must be paid.  Additionally, employees must be given a reasonable amount of time and paid sick leave to recover from the side effects of each vaccination dose.
  • Testing, Facemasks, and Exclusion Rules:  If an unvaccinated employee reports to work at least once every week, the employee must be tested and provide a negative test result to the employer once at least every seven (7) days.  If an unvaccinated employee does not report to work for more than seven (7) days, then the employee must be tested within seven (7) days prior to returning to the workplace.  Employers may not require testing within 90 days of a positive COVID-19 test or diagnosis.

Employers must ensure that unvaccinated employees wear a face covering when indoors and when occupying a vehicle with another person for work purposes, with few exceptions such as, but not limited to, being in a room alone with a closed door, or during the limited time when the employee is eating or drinking.

The regulations require exclusion from work for employees who do not provide testing results within the required timeframe or who test positive for COVID-19. Employers are not required under this law to provide paid time off when an employee is excluded from the workplace but the employee might be subject to a state or local law requiring pay.

  • Recordkeeping:  In addition to a copy of the form of proof of vaccination, employers must keep a record of each employee’s vaccination status and test results, including a roster of each employee’s vaccination status.  The vaccination and testing records must be kept for as long as the standards are in effect, which is currently set for six months. Because this information is considered confidential medical information, it must be kept in a separate file and cannot be disclosed.
  • Notice Requirements:  Employers are required to inform employees of the following: (1) the employer’s policies and procedures established to implement these requirements; (2) COVID-19 vaccine efficacy, safety and the benefits of vaccination by providing the document found here “Key Things to Know About COVID-19 Vaccines;” (3) information regarding federal regulations that prohibit discrimination for reporting work-related injuries or illness or for otherwise exercising rights under the ETS; and (4) information regarding criminal penalties associated with supplying a false statement or documentation to OSHA.
  • Penalties: Each violation of the OSHA ETS is subject to a $13,653 fine.  OSHA will likely not be actively looking for violations, but employee and customer complaints to OSHA will alert the agency and likely trigger an investigation.

Deadline for Compliance with Program Implementation, Masking and Paid Time Off Requirements:  December 5, 2021.

Deadline for Compliance with Vaccination and Testing Requirements:  Covered employers must ensure that their employees are either fully vaccinated against COVID-19 by January 4, 2022 or, if testing is offered as an alternative, that the employees are testing for COVID-19 at least once a week by January 4, 2022.

If you have 100 employees or more, start preparing for compliance now and contact an SMT employment attorney for guidance on these new regulations.

Kari J. Brown and Betsey M. Cunningham

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown