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Cal/OSHA Guidelines for Employers

After nearly 15 months of being quarantined, tested, facemasked, socially-distanced, and finally vaccinated, Californians are returning to “normalcy”, which in many instances, means returning to the workplace. Below you will find what Employers need to know about Cal/OSHA’s COVID-19 Prevention Temporary Standards, including what has changed, what remains the same, and what to expect as we enter the second half of 2021.

Can Employers Require Employees to be Vaccinated?

The first question many employers—and employees—have is: Can an employer require its employees to be fully-vaccinated and return to the workplace? The short answer is: Yes. There are three issues that employers need to be aware of—and in compliance with—to avoid litigation.

First, an employer cannot require an employee with a disability that prevents him or her from receiving a COVID-19 vaccine to be vaccinated. Like any disability claim, the employer must engage in the interactive process to see if it can reasonably accommodate the employee.

Second, an employer must also reasonably accommodate an employee with sincerely-held religious beliefs or practices that prevent them from receiving the vaccination.

Third, the employer cannot retaliate against any employees who refuse to receive the vaccine because of a disability or sincerely-held religious belief.

What Has Changed?

A lot has changed for employees who have received both doses of one of the FDA-approved vaccines and waited the required amount of time for their body to build its immunity. The Tier system is gone. Facemasks are gone. Social-distancing is gone. And, for some employees, the ability to work remotely in your pajamas is gone.

Fully-vaccinated employees do not have to be tested or excluded from work after a close contact unless the employee displays COVID-19 symptoms.

Fully-vaccinated employees do not have to wear masks in outdoor settings unless there is an outbreak.

Fully-vaccinated employees will be required to wear a mask in settings such as classrooms, mass transit, or other places where masks are required for everyone (employees and non-employees), or in the event of an outbreak.

Employees, whether vaccinated or not, may choose to wear a facemask, and the Employer cannot retaliate against that/those employee(s) who choose to don a facemask.

Employers must document the vaccination status of fully-vaccinated employees if they do not wear a facemask indoors.

Employees who are not fully-vaccinated and exhibit COVID-19 symptoms must be offered testing by their employer. The employee must still receive their wages and be reimbursed for mileage if the employee drives his or her own vehicle (or reimbursement for the cost of public transportation) to the testing location.

Employees who are not fully-vaccinated may request respirators (facemasks) for voluntary use from their employers at no cost. Employers cannot retaliate against an employee who requests and/or uses a respirator (facemask).

In the case of Employer-provided housing and transportation are exempt from the guidelines requiring facemask and social-distancing for employees who are fully-vaccinated.

What Remains the Same?

Employers must still have a written COVID-19 Prevention Program that includes: (1) identifying and evaluating employee exposures to COVID-19 health hazards, (2) implementing effective policies and procedures to correct or remedy unsafe and unhealthy conditions, and (3) allowing adequate time for handwashing and cleaning frequently touched surfaces and objects (tables, countertops, keyboards, doorhandles, shared workspaces, etc.).

Employers must provide effective training and instruction to employees on how COVID-19 is spread, infection prevention techniques, and information regarding COVID-19-related benefits that affected employees may be entitled to under applicable federal, state, or local laws.

Employers must exclude employees who have COVID-19 symptoms and/or are not fully-vaccinated and have had a close contact with the workplace and, if that close contact is work-related, ensure continued wages.

A “close contact” is still defined as an employee who has been within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the “high risk exposure period.”

A “high risk exposure period” is still for COVID-19 cases who develop COVID-19 symptoms, from two days before they first displayed symptoms until ten days after symptoms first appeared, and 24 hours passed with no fever, without the use of fever-reducing medications, and symptoms have improved. For those who are asymptomatic, from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.

How Does Labor Code §248.2 (2021 COVID-19 Supplemental Paid Sick Leave law) Relate to the ETS ?

From January 1, 2021 through September 30, 2021, LC 248.2 requires employers with 26 or more employees to provide up to 80 hours of paid sick leave to employees unable to work or telework for the following reasons:

(1) Caring For Yourself: the covered employee is subject to a quarantine or isolation period related to COVID-19 or has been advised by a healthcare provider to quarantine or is experiencing symptoms of COVID-19 and in the process of seeking a medical diagnosis.

(2) Caring For a Family Member: the covered employee is caring for a family member who is either subject to a quarantine or isolation period related to COVID-19, has been advised by a healthcare provider to quarantine, or the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.

(3) Vaccine-Related: the covered employee is attending a vaccine appointment or cannot work or telework due to vaccine-related side effects.

What Happens in the Event of COVID-19 Outbreak in the Workplace?

Employers must follow the requirements for testing and notifying public health departments of workplace outbreaks. (A “workplace outbreak” means three or more cases in an exposed workgroup in a 14-day period.)

In the event of an outbreak, facemasks are required regardless of employee vaccination status: (1) indoors, (2) outdoors when employees are less than six feet apart from another person.

Employers are required to offer COVID-19 testing at no cost during paid time to their employees who are not fully-vaccinated and had potential exposure to COVID-19 in the workplace, and provide the employees with information on benefits available to them.

Employers must contact the local health department immediately, but no longer than 48 hours after learning of three or more COVID-19 cases to obtain guidance on preventing the further spread of COVID-19 in the workplace.

Employers must maintain accurate records and track all COVID-19 cases, while ensuring that medical information remains confidential. These records (similar to employee personnel files and payroll records) must be made available to the employee or her representative, or as otherwise required by law, with personal identifying information redacted.

Employer must immediately report a COVID-19 serious illness or death to the nearest Cal/OSHA enforcement district office.

What Else Do Employer Need to Know Until the Next Set of Guidelines are Implemented?

Employers can require employees to submit proof of vaccination. According to the Department of Fair Employment and Housing (DFEH), this information does not run afoul the protections afforded to employees under HIPAA. However, under the ETS, an employer is not obligated to require employees to submit proof of being fully-vaccinated.

Acceptable options for Employers to maintain employee vaccination records include: (1) keeping a copy of the employee’s vaccination card on file, (2) maintain (and update) a list of employees who provided a copy of their vaccination card but did not give the employer a copy of the vaccination card, and (3) maintain a list of employees who self-attest to their being vaccinated.

If the workplace is inside a building or structure with natural or mechanical ventilation, or both, Employers should maximize as much as possible the quantity of outside air provided (subject to the EPA’s Air Quality rules in the event the natural air is polluted or would otherwise cause a hazard to employees).

If the workplace is controlled by the building owner, the employer needs to request that the building operator assist with compliance—the building owner’s employees are afforded the same protections as your employees.

What if an Employer Has a Question that was not Addressed?

Contact Schneiders & Associates LLP or call our offices at (805) 764-6370.

By: Christopher Correa, Esq.