Cal/OSHA Institutes Revised Emergency Temporary Standards
On December 16, 2021, the Standards Board of California’s Division of Occupational Safety and Health (better known as Cal/OSHA) adopted significant revisions to the state’s COVID-19 Prevention Emergency Temporary Standards (ETS). The revised ETS is effective starting January 14, 2022.
One important set of revisions to the existing ETS updates the definitions of key terms. These terms include:
▪ Worksite: Under the previous ETS, “worksite” included a worker’s home office or other location where they were not in proximity to other workers. The revised ETS now exempts these locations from its COVID-19 protocols.
▪ Face Covering: The revised ETS specifies that masks must be fitted over the nose and under the chin. Masks with a clear plastic panel over the mouth are acceptable. Fabric masks should be heavy enough that light cannot pass through.
▪ Fully Vaccinated: Two shots of the Pfizer or Moderna vaccine, one shot of the J&J vaccine, or the total number of (non-placebo) doses in a clinical trial for an experimental vaccine are required to meet the definition of full vaccination. Booster shots are not required.
▪ COVID-19 Test: Acceptable COVID-19 tests include antigen tests administered at home as well as clinically administered PCR tests. At-home tests must be observed and read by an authorized healthcare provider, either in person or by video.
Other revisions cover:
1. Employer COVID-19 prevention policy updates: Employers must update their written COVID-19 prevention policies to acknowledge and assess COVID-19 hazards for employees at work.
2. Masks during screenings: All workers, regardless of vaccination status, must wear masks during on-site COVID-19 screenings if the screenings are administered indoors.
3. COVID-19 testing: Businesses must provide free COVID-19 testing to any employee in close contact in the workplace with an infected person. Vaccinated employees exposed to COVID-19 must be informed about sick leave policies and workers’ compensation benefits.
4. Exemptions to exclusion for close contact: Asymptomatic and vaccinated workers who have been in close contact with a person who tests positive for COVID-19 can be exempted from exclusion from the workplace if they:
▪ Wear a mask at work for 14 following the close contact;
▪ Keep a distance from others in the workplace of at least 6 feet for 14 days following the close contact; and
▪ Are informed by their employer of applicable precautions provided by the California Department of Public Health.
5. Return-to-work requirements for close contact: Workers excluded from the worksite for exposure to COVID-19 may return to work 14 days after contact, or:
▪ 10 days after contact if they wear a face covering and maintain 6 feet of distance from others at the workplace for another 4 days; or
▪ 7 days after contact if the exposed employee tests negative for COVID 5 days after the contact, wears a face covering, and maintains 6 feet of distance from others at the workplace for an additional 7 days.
6. Notifications of positive COVID-19 cases in the workplace: In compliance with amendments to section 6409.6 of the California Labor Code, employers are required to notify “all employees who were on the premises at the same worksite as the COVID-19 case during the high-risk exposure period.” Businesses are also required to inform employees about COVID-19 sick leave and other benefits and of the company’s cleaning and disinfection plan.
The Latest OSHA Guidance on COVID-19 Vaccination Mandates
Keeping up with rapidly changing news about COVID-19 vaccination mandates is creating a whiplash effect for many employers who wonder whether they will have to require their employees to be vaccinated and its impact on their business. To keep you up to speed, here is the latest information you need to know about federal Occupational Safety and Healthy Administrations (OSHA) Emergency Temporary Standard (ETS) on vaccine mandates for employees.
The Vaccine Mandate Is Back On
After President Biden announced his policy to mandate COVID-19 vaccines for companies employing 100 or more people, OSHA developed its ETS to help employers comply with the mandate. Not surprisingly, the mandate was challenged in the courts, and soon after, a federal judge issued a stay on the mandate while the case progressed through the courts. However, as of December 17, 2021, the federal Sixth Circuit Court of Appeals struck down the stay—so as of this point, the OSHA ETS on COVID-19 vaccinations is back in effect.
Overview of the ETS
Under the current guidance, most private businesses employing 100 or more employees must create, implement, and enforce a policy requiring their employees to be fully vaccinated against COVID-19 or risk losing their jobs. As an alternative, employers may opt to implement a vaccine-or-testing regimen where employees who refuse the vaccine must provide a negative COVID test at least once a week at their own expense.
As part of the enforcement of the mandate, employers must also do the following:
• Obtain proof of vaccination from each employee and maintain records of their vaccination status; and
• Provide paid time off for employees to receive the vaccine, plus paid sick leave for them to deal with any side effects of the vaccine.
Other Details Regarding Enforcement of the Mandate
Currently, OSHA is on track to implement and enforce the vaccine mandate beginning in early 2022. Some additional key points affected employers need to know:
• As of December 5, 2021, all unvaccinated employees must wear masks while at the worksite.
• The vaccine mandates go into effect on January 10, 2022. However, given the delays and uncertainty created by the stay, OSHA will not begin penalizing violations until February 9, 2022 to give employers more time to come into compliance and begin implementing their policies.
• After February 9, 2022, employers not complying with the rules may be fined up to $14,000 per violation.
• The OSHA ETS rules do not apply to employees who work remotely or from home (i.e., off the worksite), employees who work exclusively outdoors, or to companies with fewer than 100 employees.
Employers should make sure they understand the OSHA ETS vaccine mandate and follow up with their employment attorney if they have any questions.
New EEOC Guidance: When May COVID-19 Be Considered a Disability?
In the latest of about two dozen updates since the COVID-19 pandemic began, the U.S. Equal Employment Opportunity Commission (EEOC) recently added a new section to its Technical Assistance Questions and Answers. Section N. COVID-19 and the Definition of “Disability” Under the ADA/Rehabilitation Act addresses this topic in the context of both Title 1 of the Americans with Disabilities Act (ADA) and section 501 of the Rehabilitation Act. It adds clarity in several areas, including:
• When COVID-19 meets the definition of “actual” or “record of” or “regarded as” disability; and
• Disabilities that arose or worsened because of COVID-19.
Meeting the Definition of “Actual” Disability
Determination of a disability will always be made on a case-by-case basis. A person’s condition must meet the ADA’s definition of “substantially limits” performance of a major life activity and “physical or mental impairment.” There is no length of time the limitations must last, nor do they need to be long-term.
Meeting the Definition of “Record of” Disability or “Regarded as” Disability”
Whether a person meets either of these definitions depends on the facts of each particular case. For example, if a person is fired or harassed because they have COVID-19 or the employer mistakenly believes so, the person may meet the definition for “regarded as” disability. However, if an employer requires that an employee refrains from coming to the workplace during the isolation period recommended by the CDC, this may not meet the definition of unlawful discrimination.
Defining a Condition Caused or Worsened by COVID-19 as a Disability
While a person’s case of COVID-19 by itself may not meet the definition of a disability, it may cause impairments that are defined as disabilities under the ADA. For example, a person may have impaired neurological function because of a stroke suffered while having COVID-19. Or COVID-19 may worsen a pre-existing condition that had not previously been substantially limiting but now is. For example, if an individual had a minor heart condition pre-COVID-19 that was worsened by COVID-19 and now substantially limits circulatory function.
Visit What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws on the EEOC website for the complete set of Technical Assistance Questions and Answers.
Employers should make sure they understand these guidelines and follow up with their employment attorney if they have questions.
We will provide updates on any new orders or guidance as they develop.