As the COVID-19 resurgence continues, the state of Illinois and the city of Chicago, have once again updated guidance for employers. For further details, please read our update, which provides a summary of the most recent mandates and guidance as of November 20, 2020.
On November 19, 2020, Cal/OSHA voted 6-0 to implement sweeping new temporary emergency COVID-19 regulations (COVID Regulations) which require employers to implement a written COVID-19 prevention program with 11 categories of protocols covering everything from employee communications to appropriate face coverings. Crafting a compliant COVID prevention program will take significant time and resources. See below for a more detailed overview.
In addition, the COVID Regulations impose mandatory quarantines for positive tests and exposure to those who have tested positive, and require employer-provided testing. The full text of the regulations is available through this link.
The COVID Regulations apply to all employees and all places of employment except for: (1) places of employment with one employee who does not have contact with other persons; (2) employees working from home; and (3) employees working in health care facilities, services or operations, as defined by section 5199—see link—of Cal/OSHA regulations.
The COVID Regulations, promulgated by Cal/OSHA via California’s emergency rulemaking process, will go into effect pending review by the California Office of Administrative Law—to be completed within 10 days—and will stay in place for 180 days.
In a press release dated November 20, 2020, Cal/OSHA stated that it will expeditiously convene a stakeholder meeting that will include industry and labor representatives to review the requirements of the emergency regulation and solicit feedback and recommend updates. Full press release available here.
New Expanded Contact Tracing in “Exposed Workplaces”
Pursuant to the COVID Regulations, employers must have procedures in place to identify and contact trace COVID-19 cases in the workplace and to notify employees of a “COVID-19 exposure” and/or if an employee was in an “exposed workplace.” Employers must also offer free testing during work hours to all employees whom are identified as having had potential exposure in the workplace. The frequency of testing depends on the nature of exposure and the number of cases at the workplace.
The COVID Regulations define a “COVID-19 exposure” as “being within 6 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.” The “high risk exposure period” is defined as:
(1) For persons who develop COVID-19 symptoms: from two days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved; or
(2) For persons who test positive who never develop COVID-19 symptoms: from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.
Under the COVID Regulations, “exposed workplace” means any work location, working area, or common area at work used or accessed by a COVID-19 case during the high-risk period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. The exposed workplace does not include buildings or facilities not entered by a COVID-19 case. Please note that this requirement is similar to the notification requirements within AB 685, prior post available here, which becomes effective on January 1, 2021.
New Mandatory Quarantines for Exposed Workers
The COVID Regulations also require employers to exclude employees with a COVID-19 case and/or employees with a COVID-19 exposure from the workplace as follows:
(A) COVID-19 cases with COVID-19 symptoms shall not return to work until: (1) At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications; (2) COVID-19 symptoms have improved; and (3) At least 10 days have passed since COVID-19 symptoms first appeared.
(B) COVID-19 cases who tested positive but never developed COVID-19 symptoms shall not return to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.
(C) Employees with a COVID-19 exposure shall be excluded from the workplace for 14 days after the last known COVID-19 exposure to a COVID-19 case.
Even more burdensome, employers must continue to pay employees their regular earnings during the mandatory quarantine period. An employer’s obligation can be offset by other available benefits such as workers compensation and leave under the First Families Coronavirus Response Act (FFCRA). Please note that employees who have had a COVID-19 exposure, but who have no symptoms and have not tested positive for COVID-19 are not eligible for FFCRA leave. As worded, the regulations strongly suggest that even if an employee is eligible for FFCRA leave, the employer still has the obligation to pay the difference between the FFCRA leave amount and the employee’s regular earnings. Employees also can use sick leave. The pay requirements do not apply to any period of time during which the employee is unable to work for reasons other than protecting persons at the workplace from COVID-19 transmission or if the employer can demonstrate that the COVID-19 exposure was not work related.
New Requirement of a Written COVID-19 Prevention Program
The COVID Regulations also mandate that employers implement a written COVID-19 prevention program—including eleven topics—which formalizes and greatly expands the industry guidelines, available here, published and updated by the state of California since this spring.
A full list of the required COVID-19 prevention program topics is listed below:
- System for communicating COVID-19 policies to employees
- Identification and evaluation of COVID-19 hazards
- Procedures for investigating COVID-19 cases in the workplace
- Correction of COVID-19 hazards
- Training and instruction on protocols
- Protocols for ensuring physical distancing of 6 feet or more between employees in the workplace
- Standards and procedures for the employer to provide face coverings to employees
- Engineering/administrative controls and personal protective equipment
- Recordkeeping requirements
- Exclusion of COVID-19 cases
- Return-to-work criteria
Employers should immediately contact counsel to fully understand the ramifications of these regulations on operations, as well as strategies to mitigate the impacts of these regulations. These regulations in conjunction with the reporting requirements of AB 685 which take effect January 1, 2021, have major implications for employers. Given the cost of complying with these measures, and the impact of SB 1159 (which expands the presumption of workers’ compensation liability for COVID-19 illness in California) prior post available here, to the extent feasible, employers should consider limiting the workspace to individuals who cannot perform their duties remotely. Further, the Cal/OSHA regulations likely will serve as a template for similar laws in other states and/or federal OSHA standards.
California has issued a Limited Stay at Home Order (Order) for counties under Tier One (Purple) of California’s Blueprint for a Safer Economy, requiring that all gatherings with members of other households and all activities conducted outside the residence, lodging, or temporary accommodation with members of other households cease between 10:00 p.m. PST and 5:00 a.m. PST, except for those activities associated with the operation, maintenance, or usage of critical infrastructure or required by law. The order does not apply to persons experiencing homelessness.
The order takes effect on November 21, 2020, at 10:00 p.m. PST. The Order will remain in effect until 5:00 a.m. PST on December 21, 2020, and may be extended or revised as needed.
For counties that move into Tier One (Purple) after the effective date of this Order, the terms of this Order shall apply at 10:00 p.m. PST on the second day after the county is assigned to Tier One (Purple).
Current tier assignments can be found here.
The National Labor Relations Board (NLRB) released an advice response memo concluding that a claim that a construction company violated the National Labor Relations Act (NLRA) “by laying off the charging party in the midst of a purported downturn in business due to COVID-19” and thereafter failing to recall the employee lacked merit. The Division of Advice found that its determination was reinforced by “the fact that the temporary assignment—for which the Employer rehired a former employee to complete rather than recalling the charging party—ended in September 2020 and that other employee’s employment did not continue thereafter.”
Oregon’s Occupational Safety and Health Administration (OSHA) has issued a temporary rule in response to the COVID-19 pandemic that went into effect on November 16, 2020, although many of the rule’s requirements have a later effective date.
The rule includes a mask mandate, sanitation protocols, a required poster, a specified COVID-19 notification process, exposure risk assessment and infection control plan, training, and ventilation requirements. For further details, please read the following update.
On November 12, 2020, California’s Division of Occupational Safety and Health released a draft of its COVID-19 emergency regulation. The California Occupational Safety and Health Standards Board will vote on it on November 19, 2020. The proposed regulation includes a written COVID-19 Prevention Program, requires notification of potential COVID-19 exposure within one business day to those at a worksite, and contains specific requirements for COVID-19 testing, recordkeeping, and leave from work. The proposal also addresses return-to-work criteria and would require employers maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status if an employee is excluded from work because of COVID-19 or exposure to COVID-19 if the employee is otherwise able and available to work.
California companies should monitor whether these proposed regulations are adopted and, if so, prepare to comply with the new requirements.
On Friday, November 13, 2020, California, Oregon and Washington issued additional orders related to COVID-19. The three orders are worded similarly and address Non-Essential Travel (travel that is considered tourism or recreational in nature). The orders provide that:
- 1. Persons arriving in [the state of issuance] from other states or countries, including returning [state of issuance] residents, should practice self-quarantine for 14 days after arrival. These persons should limit their interactions to their immediate household. This recommendation does not apply to individuals who cross state or country borders for essential travel.
- 2. Californians/Washingtonians/Oregonians are encouraged to stay home or in their region and avoid non-essential travel to other states or countries. Avoiding travel can reduce the risk of virus transmission and bringing the virus back to [the state of issuance].
Companies with operations in California, Oregon, or Washington, should review their COVID-19 related policies regarding travel and quarantine.
On October 21, 2020, the Centers for Disease Control (CDC) updated its website as to the definition of close contact. The definition has been modified to “Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.” The CDC clarified that individual exposures add together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). The CDC notes that data is limited, which makes it difficult to define “close contact,” but that 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation.
Companies should review their COVID-19–related policies that reference close contact.
Several decisions and numerous pending motions filed during the last few weeks have transitioned the litigation over COVID-19 Business-Interruption (BI) claims from what seemed like a preliminary event, namely the quarrel over whether COVID-19 contamination is property damage, to what may well turn out to be the main event: the meaning of the various exclusions for pollution, contamination, and microorganisms that insurers have cited when denying claims. Read the original post here.
The DOL recently issued guidance clarifying that employer-sponsored COVID-19 incentive payments, such as hazard pay, must be included in the regular rate for calculating overtime payments.
Employers may compensate non-exempt employees in a variety of ways. The amount of overtime pay must be calculated using the employee’s regular rate of pay, which generally is calculated by dividing an employee’s total compensation for employment, less any statutory exclusions, by the total number of hours worked.
The FLSA provides an exhaustive list of payments that may be excluded from the regular rate of pay when calculating overtime payments. Recently, the DOL issued guidance clarifying that employer-paid incentive payments, including hazard pay for work performed during the COVID-19 emergency, do not meet any statutorily authorized exclusion and thus must be included in the regular rate used to compute employees’ overtime pay. This requirement applies both to private and state or local government employers who have opted to provide incentive payments to employees for working during the national health crisis. Continue Reading DOL Issues Guidance that Employer-Sponsored COVID-19 Incentive Payments Must Be Included in the Regular Rate for Calculating Overtime Payments