On April 21, 2022, the California Occupational Safety and Health Standards Board approved the third readoption of the Emergency Temporary Standards (the Standard). The current Emergency Temporary Standards (ETS), which took effect January 14, 2022, is set to expire May 6, 2022. The newly approved Standard will likely take effect May 6 and will likely be in effect until the end of this calendar year. Although many features of the prior version remain intact, the Standard includes several notable changes that may require employers to update their policies and practices, including the written COVID-19 Prevention Program. We note a number of these differences below. As with prior versions, Cal/OSHA will likely update their Frequently Asked Questions to address the changes.

  1. Fully Vaccinated. The Standard deletes the definition of “fully vaccinated” and does not replace it with a new one. Thus, unlike the current ETS, the Standard now requires employers to make COVID-19 testing available to employees with COVID-19 symptoms regardless of vaccination status.
  2. Self-Administered and Self-Read COVID-19 Tests. Under the Standard, an employee may satisfy return-to-work criteria by taking a COVID-19 test that is both self-administered and self-read “only if” another mechanism for independent verification of the results is available such as a time stamped photograph of the results.
  3. Face Coverings. Importantly, the Standard removes the requirement that employers must provide face coverings to those who are not fully vaccinated and ensure face coverings are worn indoors or in vehicles. However, employers must provide face coverings and ensure they are worn when the California Department of Health (CDPH) requires. The Standard also removes from the definition of “face coverings” the requirement that light cannot pass through them when held up to a light source.
  1. Return-to-Work Criteria. The Standard sets forth revised return-to-work criteria. Under the Standard, regardless of vaccination status or previous infection, employees who do not develop COVID-19 symptoms or whose symptoms are resolving should not return to work until:
    • Five days have passed since COVID-19 symptom onset, or if there were no symptoms, the date of the first positive test;
    • 24 hours have passed since the last fever of 100.4 degrees or higher without using fever-reducing medication; and
    • A negative COVID-19 test collected on the fifth day or later is obtained (or if an employee cannot test or the employer does not require a test, 10 days have passed from the date of symptom onset, or if no symptoms develop, the date of the first positive COVID-19 test).

Continue Reading Cal/OSHA Approves Third Readoption of Emergency Temporary Standards

The County of Los Angeles Department of Public Health has again issued a revised Public Health Order (Order) that significantly narrows Los Angeles County’s mask mandate, effective March 4, 2022. As explained in the Order, the updates are largely aimed at relaxing masking requirements to align with Executive Order N-5-22 and California Department of Public Health guidance issued February 28, 2022. Continue Reading County of Los Angeles Department of Public Health Eliminates Most Masking Requirements

On February 28, 2022, California Governor Gavin Newsom issued an Executive Order (EO) that suspended Section 3205(c)(6)(A) of the current Cal/OSHA ETS. As a result, employers will no longer have to provide face coverings to employees who are not fully vaccinated, and such employees will no longer have to wear a mask indoors or in vehicles at the workplace, subject to two limitations within the ETS and more restrictive local guidance. The EO cites sections 8567, 8571, and 8267 of the California Government Code as providing the authority to take this action. The EO also extended the deadline to reenact the Cal/OSHA ETS from April 14, 2022, to May 5, 2022.

Notwithstanding the EO, all employees must continue to wear masks while in vehicles with others (see CCR, Title 8, Section 3205.4(c)(2) & (3)) and employees subject to the Isolation/Quarantine guidelines (i.e., either close exposures to a COVID-19 case or a COVID-19 case returning to work without symptoms) are still required to wear masks in the workplace. Cal-OSHA has posted updated FAQs which provide a list of circumstances where face masks must still be worn. In addition, California counties are allowed to have stricter guidance than the state of California.

To ensure that they are compliant and their practices are consistent with ongoing COVID-19 law and policy developments, employers should consult experienced counsel.

The Los Angeles County Department of Public Health has issued a revised Health Order (“Order”) that makes important changes to Los Angeles County’s mask mandate, effective February 25, 2022. The major revisions are summarized below:

New Options Available to Establishments: Operators of “[a]ll indoor public settings, venues, gatherings, and public and private businesses” may choose to allow fully vaccinated persons ages 5 and older to choose to be exempt from the indoor masking requirement under one of the two options below:

    • Option 1: Allow both fully vaccinated customers/visitors and fully vaccinated onsite workers to unmask while indoors. 
      • Requirements: verify proof of full vaccination against COVID-19 or a recent negative COVID-19 test result prior to entry for all persons, age 5 and older.
        • Tests: must have been taken within 2 days if PCR test or 1 day if antigen test. Onsite workers not fully vaccinated may submit a negative COVID‑19 viral test prior to work onsite every 3 days in compliance with Cal-OSHA protocols.
        • Definition of Full Vaccination: The Order tracks the current CDC definition of “fully vaccinated,” meaning two weeks or more after a second dose in a two-dose series (e.g., Pfizer or Moderna) or two weeks after a single-dose vaccine (e.g., J&J).
      • Verification:
        • Tests: Operator must view (1) individual’s photo ID and (2) a printed document, email, or text message with results from a test provider or laboratory. (NOTE: at-home test results are only sufficient for employees, not the general public). See link for more details.
        • Vaccination: Operator must view (1) individual’s photo ID; and (2) vaccination card in print /electronic form or other evidence of vaccination.
      • NOTE: for any persons to be exempt from the indoor public setting masking requirement under this option, all persons who are not fully vaccinated or do not show proof of vaccination must (1) provide a negative COVID-19 viral test and (2) wear a well-fitting mask while indoors, except when actively eating or drinking.

Continue Reading Los Angeles County Department of Public Health Issues a Revised Health Order

As reported here, earlier this month California Governor Newsom signed into law SB 114, which reinstates COVID-19 supplemental paid sick leave for covered employees in California. The state’s Labor Commissioner recently issued 37 frequently asked questions (FAQs) addressing California Labor Code Section 248.6 in more detail, which includes guidance to help employers comply with the new requirements. The FAQs also discuss the relationship between the new supplemental sick leave law and other legal requirements. Further, the FAQs link to a poster that employers must display in the workplace or provide to employees electronically. A Spanish version of the poster is available here.

Because of the nuanced intersection between the supplemental sick leave and other laws, as well as the continuously evolving COVID-19 legal requirements, employers are encouraged to review the FAQs and work with legal counsel to ensure compliance.

On December 15, 2021, California reinstated a mandatory indoor masking requirement to correspond with the rise in Omicron cases. However, as COVID-19 cases in California have steadily decreased, the California Department of Public Health (CDPH) has issued updated guidance to take effect February 16, 2022, which loosens the mask requirements for vaccinated individuals. According to the February 7, 2022 guidance, masks remain required for “unvaccinated individuals in indoor public settings and businesses.” In addition, fully vaccinated individuals “are recommended to continue indoor masking when the risk may be high.” The guidance also notes that masks remain required regardless of vaccination status in the following settings: on public transit; indoors in K-12 schools and childcare; emergency shelters and cooling and heating centers; healthcare settings; state and local correctional facilities and detention centers; homeless shelters; and long-term care settings and adult and senior care facilities. To assist with implementation, the CDPH provides guidance for how businesses, venue operators or hosts can comply, and it also lists exemptions to the mask requirements.

The CDPH further indicates that in workplaces, employers remain subject to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) or the Cal/OSHA Aerosol Transmissible Diseases (ATD) Standard, and employers should continue monitoring those regulations for applicable requirements.

Finally, while the foregoing guidance is for California statewide, nothing precludes local jurisdictions from retaining their mask mandates. In fact, we anticipate some local governments may continue imposing mask requirements. Further, employers remain free to impose mask requirements even in the absence of local regulation. Given the fluid nature of the mask and vaccination requirements, employers are encouraged to monitor state and local regulations, and also to consult with counsel regarding any questions.

On February 4, the tri-agencies (DOL, HHS and Treasury) issued new FAQs on the requirement for group health plans and issuers to cover over-the-counter (OTC) COVID-19 tests without cost-sharing, prior authorization, or other medical management requirements. We discussed the tri-agencies’ initial FAQs in our prior blog post.

The coverage requirement is still in place, but these new FAQs provide clarifications in response to the tri-agencies’ receipt of stakeholder questions—primarily about the “safe harbor” permitting the limit of reimbursements to $12 per test (or actual cost, if less) if the test is purchased outside a direct coverage program.

Click here to read the full blog post on Employee Benefits.

On February 9, 2022, California Governor Newsom signed SB 114 into law, reinstituting COVID-19 sick leave for 2022 (“2022 COVID-19 Sick Leave”). 2022 COVID-19 Sick Leave applies to employers with more than 25 employees and becomes effective February 19, 2022. Notably, the 2022 COVID-19 Sick Leave is retroactive to January 1, 2022. It will expire on September 30, 2022. Continue Reading California COVID-19 Sick Leave: A New Bill Extending COVID-19 Sick Leave for 2022

This week, the Department of Labor, Health and Human Services and the Treasury issued a new set of Frequently Asked Questions (FAQs) confirming that group health plans and issuers must provide 100% coverage of over-the-counter (OTC) COVID-19 diagnostic tests beginning January 15, 2022.

The FAQs are further interpretation of the coverage mandate required by the Families First Coronavirus Response Act (FFCRA), as amended by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Under this new guidance, 100% of the cost for COVID-19 tests purchased by an individual for diagnostic purposes on or after January 15, 2022, must be covered without cost-sharing or medical management requirements—even if the test was purchased OTC without a provider prescription or clinical assessment. This requirement continues for the duration of the national public health emergency. Continue Reading New FAQs Require Group Health Plans and Issuers to Cover OTC COVID-19 Tests

Near the end of 2021, the Occupational Health and Safety Administration (OSHA) issued the Emergency Temporary Standard (the ETS), which required employers with 100 or more employees to put in place a mandatory vaccination policy or require weekly COVID-19 testing and mask wearing by unvaccinated or partially vaccinated employees. On November 5, 2021, the United States Court of Appeals for the Fifth Circuit stayed enforcement and application of the vaccine mandate; this stay was dissolved by the Sixth Circuit Court of Appeals on December 17, 2021. See the discussion of these rulings here and here. Thereafter, the United States Supreme Court agreed to review the issue.

Continue Reading The Supreme Court Stays OSHA Rule Requiring Vaccination or Testing for Most Private Employers