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

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

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

State Public Health Officer Orders Some Employers to Verify Employee Vaccination Status and Conduct Regular Testing of Unvaccinated Employees

On July 26, 2021, the California Public Health Officer ordered hospitals, skilled nursing facilities, high-risk congregate settings and other health care settings to verify Covered Workers’ vaccination status and regularly test those who are not “fully vaccinated.”  An individual is considered “fully vaccinated” for COVID-19 two weeks or more after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna or vaccine authorized by the World Health Organization), or two weeks or more after they have received as single-dose injection (Johnson & Johnson/Janssen).

The Order for health care workers and congregate facilities will take effect on August 9, and health care facilities will have until August 23 to come into full compliance.

Covered Facilities

The New Order applies to the following Covered Facilities:

Acute Health Care and Long-Term Care Settings

• General Acute Care Hospitals
• Skilled Nursing Facilities (including Subacute Facilities)
• Intermediate Care Facilities

High-Risk Congregate Settings

• Adult and Senior Care Facilities
• Homeless Shelters
• State and Local Correctional Facilities and Detention Centers

Other Health Care Settings

• Acute Psychiatric Hospitals
• Adult Day Health Care Centers
• Adult Day Programs Licensed by the California Department of Social Services
• 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
• Dental Offices
• Dialysis Centers
• Hospice Facilities
• Pediatric Day Health and Respite Care Facilities
• Residential Substance Use Treatment and Mental Health Treatment Facilities

Covered Workers

“Covered Workers” include all paid and unpaid persons serving in health care, other health care or congregate settings who have the potential for direct or indirect exposure to patients/clients/residents or SARS-CoV-2 airborne aerosols.  Covered Workers include, but are not limited to:

• nurses, nursing assistants, physicians, technicians, therapists, phlebotomists, pharmacists, students and trainees;
• contractual staff not employed by the health care facility; and
• persons not directly involved in patient care, but who could be exposed to infectious agents that can be transmitted in the health care setting (e.g., clerical, dietary, environmental services, laundry, security, engineering and facilities management, administrative, billing, and volunteer personnel).

Verification of Vaccination Status

Covered Facilities must verify the vaccine status of Covered Workers, which includes:

• requiring workers to provide documentary proof of vaccination – employee attestation is not sufficient (the accepted types of documentation are included in the Order at section II.A.)
• having a plan in place to track verified worker vaccination status (records must be available upon request to the local health jurisdiction)
• workers who are not fully vaccinated, or for whom vaccination status is unknown or documentation is not provided, must be considered unvaccinated.

COVID-19 Testing Requirements

The Order requires Covered Facilities to test all Covered Workers who are not fully vaccinated as set out below.  (Diagnostic testing of asymptomatic fully vaccinated workers is not currently required).

• Acute Health Care and Long-Term Care Settings:  at least twice weekly
• High-Risk Congregate Settings and Other Health Care Settings:  at least once weekly

Covered Workers who have not been fully vaccinated must be tested even if they have a previous history of COVID-19, or a previous positive antibody test for COVID-19.

Covered Facilities should have a plan in place for tracking test results, conducting workplace contact tracing, and must report positive results to local public health departments.

Respirator and Mask Requirements

All Facilities Covered by the Order

Covered Facilities must strictly adhere to current California Department of Public Health (CDPH) Masking Guidance.  To the extent they are already applicable, facilities must also continue to adhere to Cal/OSHA’s standards for Aerosol Transmissible Diseases (ATD), which requires respirator use in areas where suspected and confirmed COVID-19 cases may be present, and the Emergency Temporary Standards which require that all unvaccinated workers be provided a respirator upon request.

Acute Health Care and Long-Term Care Settings

In addition to respirators required under the ATD, facilities must provide respirators to all unvaccinated and incompletely vaccinated workers who work in indoor work settings where (1) care is provided to patients or residents, or (2) to which patients or residents have access for any purpose. Workers are strongly encouraged to wear respirators in all such settings. The facility must provide the respirators at no cost, and workers must be instructed how to properly wear the respirator and how to perform a seal check according to the manufacturer’s instructions.

High-Risk Congregate Settings and Other Health Care Settings

Where the ATD does not require the use of respirators, Covered Facilities must provide all unvaccinated and incompletely vaccinated workers with FDA-cleared surgical masks. Workers are required to wear FDA-cleared surgical masks in indoor settings anywhere they are working with another person.

State Public Health Officer Issues Updated Mask Guidance

On July 28, 2021, the State Public Health Officer issued updated Mask Guidelines.  The new updates:

• add recommendations for universal masking indoors statewide
• add Adult and Senior Care Facilities to settings where all individuals must wear masks indoors
• reference the new requirements for unvaccinated workers in the State Health Officer’s July 26, 2021 Order

New Mask and Testing Recommendations for Vaccinated Individuals

Earlier this week, the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health recommended that fully vaccinated individuals return to wearing mask indoors when in public for those in areas of substantial or high transmission.  The CDC website has a COVID-19 Data Tracker where people can check the transmission levels.  Currently, Sonoma, Marin, Napa and most other California counties are in “substantial or high transmission” areas.

The CDC now also recommends that fully vaccinated people who have a known exposure to someone with suspected or confirmed COVID-19 be tested 3-5 days after exposure, and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

Contact an SMT employment law attorney if you have questions about these new requirements or if we can be of assistance with any other workplace issues.

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

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

To Mask or Not to Mask – What Rules Apply to the Workplace?

Californians have been anxiously awaiting the arrival of June 15 when Governor Newsom has promised to “fully reopen the economy” and a return to “usual operations” by eliminating the colored tiers and face covering mandates, and lifting capacity and distancing requirements for most businesses and activities.

In the last several days, federal and state government agencies have issued a flurry of conflicting regulations and guidance leaving everyone confused and wondering, what does it all mean?  The answer depends on who’s asking and what day it is.  This article will focus on what we know today, but unfortunately, that is subject to change.

Rules for the General Public

For the general public, the California Department of Public Health’s (CDPH) Guidance (found here) will apply from June 15 until at least October 1, 2021:

Vaccine Verification/ Negative Testing	Required for indoor mega events (5,000+ people) Recommended for outdoor mega events (10,000+ people)
Capacity Limitations	No restrictions
Physical Distancing	No restrictions for attendees, customers and guests (Note: no reference to workers employed by the business)
Face Coverings	Follow current CDPH Guidance for Face Coverings*
Travelers	Follow CDC recommendations and CDPH Travel Advisory

*The most recent CDPH Guidance, issued on June 9, 2021 (found here)  has two sets of recommendations – guidance effective before June 15, and guidance effective after June 15, 2021.  After June 15, fully vaccinated individuals are not required to wear masks except in limited settings (on public transit; in schools, childcare and other youth settings; healthcare settings; detention and correctional facilities; homeless shelters, emergency shelters and cooling centers).  Individuals who are not fully vaccinated would be required to wear masks in all indoor public settings and businesses.  “Fully vaccinated” is defined as having received all required COVID-19 doses and completing a 14-day post-vaccination period.

The County of Sonoma has announced that it will follow the CDPH guidance for face coverings, but businesses must follow State face covering guidance, industry sector guidance, and Cal OSHA regulations for employees.  While the County of Sonoma is not issuing its own local ordinance on the subject, other Counties may develop their own guidelines that are more restrictive than the federal and state guidelines. Check your county’s department of public health to see if any local ordinances apply to your business.

Rules for the Workplace

While we can expect a return to normal for the general public and our personal lives on June 15, the workplace rules businesses must follow for their employees are far more restrictive, at least for now.  The California Occupational Safety and Health Administration Emergency Temporary Standards (“ETS”) applies to all California workplaces.  The hitch – the ETS currently in effect was issued in November 2020, long before vaccines became available.  Although Cal-OSHA’s recent proposed updates to the ETS, which reflected the availability of vaccines, were initially approved, they were withdrawn on June 9.  Cal-OSHA has returned to the drawing board to draft a proposed ETS that is more consistent with the CDPH Guidelines issued on June 9, 2021.

For now, the November 2020 ETS face covering and other workplace requirements (outlined below) apply to the workplace until June 27, 2021, when an updated ETS that takes into account vaccination status is anticipated to go into effect.  At the time of this publication, the proposal is in flux, but is due to be issued before the June 17, 2021 Cal-OSHA Standards Board meeting.  If approved at the meeting, the new ETS will go to the Office of Administrative Law for approval, with the earliest possible effective date being June 27, 2021.

Vaccine Verification/ Negative Testing	Not addressed; no effect on the workplace
Capacity Limitations	No specific restrictions, however capacity must be limited if necessary to comply with social distancing requirements.
Physical Distancing	Employees must maintain six feet of distance at all times regardless of vaccination status; solid separation barriers are required at fixed work locations where six feet of physical distancing is not possible
Face Coverings	Must be worn in the workplace regardless of vaccination status (subject to very limited restrictions)

We’ll be monitoring Cal-OSHA proceedings and announce the new ETS when it becomes effective.  In the meantime, we recommend that you prepare your employees to continue working with face coverings and physical distancing through the end of this month.

If you need help determining which rules apply to your business or how to implement them, please reach out to an SMT employment law attorney. We’re here to 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

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown