Return to Work: Employee Face Coverings and Vaccination Policy under Cal/OSHA’s Revised Emergency Temporary Standard and CFRA
Expansion
박수영 변호사
spark@fisherphillips.com Date: July 6, 2021
It’s Been a Bit of a Rollercoaster
• Despite the confusion and delay with Cal/OSHA ETS, we have
general alignment with the CDPH/CDC guidance on
masking
• A better end product despite all the stops and starts
• But still lots of requirements and burdens for employers
Today’s Agenda
• Status/Effective Date/Duration
• Key Changes Since Last Time
• Face Masks
• Documenting Vaccine Status
• Physical Distancing
• Provision of Respirators (N95s)
• More…
• Review of Other Changes to the ETS
• Portions of the ETS that Remain
• Next Steps/Action Plan
• Changes to California Family Rights Act
Status – Where Are We?
• Target Dates for Reopening
o June 15: capacity and distancing restrictions will be lifted for most businesses and activities
o October 1: Large-scale indoor events will have vaccination or negative test
requirements for attendees through at least October 1.
• Cal/OSHA released third revised ETS on June 11
• Standards Board approved on June 17 (5-1 vote), and Governor signed Executive
Order on June 17 (effective date)
Duration
• OSHA Standards Board says will be in effect for 210 days (until January 2022)
• NOTE: Cal/OSHA can readopt again (extend further) or turn into a permanent standard
• NOTE: Cal/OSHA Subcommittee says it will look at whether to
“trigger off” the ETS if certain benchmarks are met.
Overview of the ETS
• Employers must still have a written COVID-19 Prevention Plan that
addresses specific requirements in Standards (adds to company’s written Injury and Illness Protection Plan [IIPP] already required) – if you have an existing written plan, it may need to be modified.
• Emergency standard requirements still on employers: “continue and maintain an employee’s earnings… and benefits” while they are
quarantined or subject to an isolation order unless the employer can demonstrate that the COVID-19 exposure is not work-related or the
employee is unable to work for reasons other than protecting persons at the workplace from COVID-19 transmission.
PREVENTION PROGRAM
COVID-19 Prevention Plan
• The ETS applies to all employees and places of employment. However, it does not apply to the following:
• Places of employment with one employee who does not have contact with other persons.
• Employees working from home.
• Employees already covered by Cal/OSHA’s aerosol transmission standard
(applicable generally to certain health care facilities, laboratories and others).
• What should be included in the prevention plan:
• How the employer identifies and evaluates COVID-19 hazards (i.e., employee screening, vaccination status)
• How the employer corrects and controls COVID-19 hazards (i.e., face coverings, ventilation, cleaning and disinfecting, hand sanitizing)
• How the employer investigates and responds to COVID-19 cases (i.e., reporting procedure, communication system, excluding COVID-19 cases and employees who had a close contact)
• How the employer trains its employees
Workers’ Compensation Presumptions
• Creates a presumption that an illness or death resulting from COVID- 19 has arisen out of and in the course and scope of employment
• Presumption is Disputable –employer may dispute the presumption with evidence such as:
(1) measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment,
(2) the employee’s non-occupational risks of COVID-19 infections, (3) statements made by the employee, and
(4) any other evidence normally used to dispute a work-related injury.
FACE COVERINGS
Face Coverings – Guidance for
Businesses, Venue Operators or Hosts
Exemptions to masks requirements
The following individuals are exempt from wearing masks at all times:
• Persons younger than two years old. Very young children must not wear a mask because of the risk of suffocation.
• Persons with a medical condition, mental health condition, or disability that prevents wearing a mask. This includes persons with a medical condition for whom wearing a mask could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a mask without assistance.
• Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
• Persons for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety
guidelines.
Face Coverings at Workplace
• Employees who are fully vaccinated will no longer need to wear face coverings
• “Fully vaccinated” as defined in the ETS means that the employer has documented that the employee received, at least 14 days prior, either the second dose in a two- dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. Vaccines must be FDA (U.S. Food and Drug Administration) approved; have an emergency use
authorization from the FDA.
• Alignment with CDPH/CDC updated guidance
• No more “everyone in the room vaccinated” standard
• Note – CDPH guidance still requires face coverings (regardless of
vaccination status) in public transit, K-12 educational facilities, health care and long-term care settings, correctional and detention facilities, and
shelters (homeless or emergency shelters and cooling centers)
Face Coverings
• Employees who are not fully vaccinated must still wear face masks while
indoors on employer premises, or (for example) when in vehicles on company business with other company employees.
• Employers must provide face coverings and ensure they are worn by
employees who are not fully vaccinated when indoors or in vehicles with others
• Same limited exemptions apply for those who are not fully vaccinated (employees alone in a room or vehicle, while eating or drinking, etc.)
• There are additional rules for public transportation, in healthcare and long term care settings, homeless, emergency shelters, correctional facilities, etc.
Face Coverings
• Face masks are not required while outdoors on employer premises regardless of the vaccine status.
• Employers have to document the vaccination status of employees if they’re going to go without face coverings indoors.
Face Coverings
• New Language - Employees can request face coverings from the employer at no cost and can wear them at work, regardless of vaccination status, without fear of retaliation.
• If there is a surge in COVID cases or an outbreak in the work place, employers implement further procedures, including physical
distancing and face masking.
DOCUMENTATION & VACCINES
“Documenting” Vaccination Status
• In order for employers to make different policies for face coverings based on the employees’ vaccination status, employers must have documented the vaccine status.
• “Acceptable options” of “Documenting” include:
1) Employees provide proof of vaccination (vaccine card, image of vaccine card or healthcare document showing vaccination status) and employer maintains a copy
2) Employees provide proof of vaccination – the employer maintains a
record of the employees who presented proof, but not the vaccine record itself
3) Employees self-attest to vaccination status and the employer maintains a record of who self-attests
A Few Vaccine Considerations to Keep in Mind
Be Careful How You Ask and What You Ask
• Employers may inquire about vaccination status
• Employers should instruct employees not to disclose any additional medical or other family medical information and must maintain this information as confidential
• Covered employers must also provide notice pursuant to the California Consumer Privacy Act (CCPA) (applies to for-profit businesses that do businesses in California and meet any of the following: (1) have a gross annual revenue of over $25 million; (2) buy, receive, or sell personal information of 50,000 or more California residents, households, or
devices; or (3) derive 50% or more of their annual revenue from selling California residents’ personal information.
A Few Vaccine Considerations to Keep in Mind
What if an employee declines or refuses to disclose their vaccination status?
Cal/OSHA Revised FAQs:
• “An employee has a right to decline to state if they are vaccinated or
• “In that case, the employer must treat the employee as unvaccinated not”
and must not take disciplinary or discriminatory action against an employee”
Mandating Employee Vaccination
• CA DFEH Provided California Provides Employers with Guidelines on Mandating Vaccines (3.4.2021)
• The department said the Fair Employment and Housing Act (FEHA) allows employers to mandate vaccines that have been approved by the U.S. Food and Drug Administration (FDA).
• However, employers may not discriminate against employees or job applicants based on a protected characteristic—such as age, race or sex—and must provide reasonable accommodations related to a
worker's disability or sincerely held religious belief.
• Employers are prohibited from retaliating against an employee who engages in protected activity.
• Fear Doesn't Have to Be Accommodated (not “trust vaccine is safe”).
Vaccine Policy
• Provide a written notice of the policy to employees:
• Whether it is mandatory or voluntary
• If mandatory, why it is necessary for business
• Type of vaccines approved and where they can get vaccinated
• Time off to get vaccination (Supplemental Paid Sick Leave applies to employers with 26 or more employees)
• Whether an incentive is provided (PTO, bonuses, etc.)
• Instructions on how to provide proof of the vaccine
• Information on how to contact HR to request an accommodation
• Flexible language allowing for the continued update of the vaccine policy as new information becomes available.
Documentation
• If employer requests/requires proof of vaccinations then these records:
• should not be kept in personnel files.
• should be kept confidential and separate
• Safe keeping in a separate file (and restrict access to files –paper or electronic)
• Same for other COVID-19 related information from employees
(testing, investigation of outbreaks, reporting, FFCRA request forms, etc.)
Vaccination Side Effects
• Normally, OSHA would require reporting of certain covered adverse health effects related to vaccination if it is required as a condition of employment. OSHA has temporarily waived that requirement for the COVID-19 vaccine.
• Employees who suffer adverse reactions may, however, be entitled to recover benefits under an employer’s workers’ compensation policy.
PHYSICAL DISTANCING
Physical Distancing
• Say goodbye!
• This applies immediately
(rather than July 31 under the previous proposals)
• No physical distancing or barrier requirements
regardless of employee vaccination status
Physical Distancing
A few exceptions to keep in mind:
• Employers must “evaluate” whether it is necessary to implement physical distancing and barriers during an outbreak
• Employers must implement physical distancing and barriers during a major outbreak
• Nothing prohibits employers from voluntarily maintaining physical distancing and barriers
RESPIRATORS
Provision of Respirators (N95s)
• Modest improvement in that
respirators need only be provided for voluntary use to unvaccinated employees “upon request”
• In a “major outbreak” must be offered for voluntary use to all employees in the exposed group (regardless of vaccination status)
• Still going to be some supply challenges
What Does it Mean to “Provide Respirators Upon Request?”
• “An employer must be able to provide the respirator upon request.
Initially, an employer may either stock respirators and offer them to employees or may poll workers to determine which employees wish to be provided a respirator before obtaining them. However, once an
employer has established that it has employees who wish to wear
respirators, it should have enough on hand of the correct size and type to fulfill reasonably foreseeable requests upon demand.”
What Does it Mean to “Provide Respirators Upon Request?”
• “If an employee prefers to select and purchase their own respirator, an employer may permit this alternative, as long as the employer
reimburses the employee in timely manner.”
• “An employer is under a continuing obligation to provide respirators to eligible unvaccinated employees at any time they communicate to the employer their desire to wear one.”
How Soon Do We Have to Provide It?
• “After initial implementation as described above, employers should provide requested respirators to unvaccinated employees as soon as possible.”
What if We Run Out?
• “Cal/OSHA will not cite employers who make a good faith estimate
and effort to provide respirators as soon as possible to employees that request them.”
• “If an employer runs out of respirators, they should order more
respirators immediately. Cal/OSHA lists some but not all vendors that sell N95 respirators in large quantities (vendors able to fulfill orders of more than 100,000 units)
at https://www.dir.ca.gov/dosh/wildfire/List-of-N95-
Vendors.pdf. There are many vendors who have N95s available in smaller quantities.”
How Often Must We Provide an
Employee With a New Respirator?
• “For voluntary use, the need to replace a respirator varies with use and environment.”
• “Filtering facepiece respirators are disposable respirators that cannot be cleaned or disinfected. They must be replaced if they get damaged, deformed, dirty, or difficult to breathe through. Employers should
follow the manufacturer’s instructions.” A best practice is to replace filtering facepiece respirators at the beginning of each shift.
• “CDC recommends replacing a disposable filtering facepiece
respirator, such as an N95, after it has been taken on and off five times. Filtering facepiece respirators may not fit correctly after repeated use.”
Training and Respirators
• Training (in general) must include:
• The employer’s policies for providing respirators
• The right of employees who are not fully vaccinated to request respirators
• Whenever respirators are provided for voluntary use must include:
• How to properly wear the respirator provided
• How to perform a seal check each time the respirator is worn and the fact that facial hair interferes with a seal
• Cal/OSHA FAQs describe this as “basic instruction on how to get a good seal or fit.”
• 5144 Appendix D Acknowledgement
N95s vs. KN95s
EXCLUSION OF
EMPLOYEES
What does the Amended ETS Say?
Employer must exclude employees who had “Close Contacts” (within 6 feet of a COVID-19 case for a cumulative total of 15 minutes or more in any 24-hour period within “high risk exposure period” (COVID-19 symptoms from 2 days before they first develop symptoms until 10 days after
symptoms first appeared)) – unless:
1) Fully vaccinated before the close contact and have no symptoms; or 2) Were previously COVID-19 cases who returned to work and have
remained symptom free for 90 days after initial onset of symptoms or after first positive test if never developed symptoms (“natural
immunity”)
NOTICE REQUIREMENTS
When an Employee Reports a COVID-19 Case
• Mainly conform to requirements of AB 685:
• Must be “written”
• Must be provided to “all employees at the worksite during the high risk exposure period” (as opposed to all employees who “may” have been exposed)
• May include personal service, email or text message if it can reasonably be anticipated to be received by the employee within one business day
New Requirement
New Verbal Follow-Up Requirement:
If the employer should reasonably know that an employee has not
received the notice, or has limited literacy in the language used in the notice, the employer shall provide verbal notice, as soon as practicable, in a language understandable by the employee.
• Many vague and undefined terms
• May be best to provide the initial notice in the employees’ native language if a high percentage of non-English speaking employees
EXCLUSION PAY
Exclusion Pay
• Must be paid at the employee’s “regular rate of pay”
• Must be paid no later than the regular pay date for the pay period(s) in which the employee is excluded
• Unpaid exclusion pay wages are subject to enforcement through
“procedures available in existing law” (will likely lead to private lawsuits and PAGA claims)
NEW TESTING
OBLIGATION FOR NON- VACCINATED
EMPLOYEES
New Testing Obligation
• Begins immediately upon effective date
• (1) Employers must make testing available at no cost to employees with COVID-19 symptoms who are not fully vaccinated during employees’ paid time.
• (2) Inform all employees on how they can obtain testing. Offer testing to employees who are not fully vaccinated or who are vaccinated with symptoms at no cost and during paid time in the event of a close contact at work, with an exception for certain symptom-free employees who recently recovered from COVID-19.
• (3) Make available at no cost periodic (at least weekly or twice per week depending on the
magnitude of the outbreak) COVID-19 testing to all employees within an exposed group during an outbreak, except for those employees who were not at work during the relevant period; for vaccinated employees without symptoms; and—for a limited period—employees who recently recovered from COVID-19 and have not developed COVID-19 symptoms since returning to work.
• (4) Testing must be provided in a manner that ensures employee confidentiality.
TESTING FOLLOWING
COVID-19 CASES IN THE
WORKPLACE
Testing After One COVID-19 Case
• Provides that testing must be made available to all employees who had “close contact” (as opposed to all employees who had
“potential COVID-19 exposure”)
• Do not need to provide testing to:
1) Employees who were fully vaccinated before the close contact and do not have COVID-19 symptoms; or
2) Employees who were previously a COVID-19 case, met the return-to-work criteria and have remained symptom free for 90 days after initial onset of symptoms or after first positive test if never developed symptoms
(“natural immunity”)
OUTBREAKS
“Regular” Outbreaks (3 cases/14 days)
• Employees in the exposed group must wear face coverings
• Must notify all employees in the exposed group of their right to request a respirator
• Must “evaluate” the use of physical distancing or barriers
• Must use MERV-13 or higher filters if compatible (previously only applied to “major” outbreaks)
• Do not have to provide testing to (1) employees who were fully
vaccinated before the outbreak, or (2) were COVID-19 cases in prior 90 days
“Major” Outbreaks (20 cases/30 days)
• Generally clarifies that all of the requirements of “regular” outbreaks apply, with the addition of the following:
• Testing must be provided regardless of vaccination status
• Must provide a respirator for voluntary use and determine need for a respiratory protection program
• Must implement physical distancing
• Must install barriers at work stations where physical distancing not maintained at all times
• “Major” Outbreak ends when there are fewer than 3 cases in the exposed group in a 14 day period (as opposed to no new cases)
KEY ORIGINAL ETS PROVISIONS
THAT REMAIN IN EFFECT
Key Original ETS Provisions That Remain in Effect
• Must establish, implement and maintain an effective WCPP.
• Continue symptom screening.
• Must provide 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.
• Notification requirements.
• Employers must exclude employees who have COVID-19 symptoms and/or are not fully vaccinated and have had a close contact from the workplace and, if that close contact is work-related, ensure continued wages.
• Testing requirements.
• Outbreaks and Major Outbreaks.
NEXT STEPS/ACTION
PLAN
Next Steps/Action Plan
1) Review the Amended ETS
2) Review your Written Plan COVID-19 Prevention Program, notices and other policies that need to be modified.
3) Review the vaccine considerations discussed above and evaluate how you are going to handle documenting vaccination status
4) Prepare to provide N95s
Next Steps/Action Plan
1) Review the Amended ETS
2) Review your Written Plan COVID-19 Prevention Program, notices and other policies that need to be modified.
3) Review the vaccine considerations discussed above and evaluate how you are going to handle documenting vaccination status
4) Prepare to provide N95s
Preparing for a Return to Work
• Formulating a Physical Return to Work Plan
• Consider a phased approach, such as staggered days and weeks employees are physically in the office
• Factor in back to school timeframe in scheduling
• Employee workforce surveys
• In-office protocols such as masks, social distancing, disinfectant cleanings, common area usage, etc.
• Workplace Safety
• Maintain written protocol for confirmed or suspected COVID cases (even for vaccinated employees)
• Consider revising office protocols for vaccinated employees –masks, social distancing, common areas, temp. checks, etc.
Preparing for a Return to Work
• Vaccinations
• Clearly define mandatory or voluntary policy
• Allow for reasonable accommodation requests (religion and disability)
• Keep as confidential medical information
• Incentives for vaccination should not be so large they are coercive and should not be offered for vaccination of family members if given by the employer
• Prepare for Reasonable Accommodation Requests
• Update job-specific documents such as job posting and essential duties
• If have been temporarily excusing performance of essential job functions while teleworking during pandemic, make clear that was temporary and that time is ending as of a certain date
• Finalize written justifications for in-person work & whether any positions will remain remote
CFRA EXPANSION
CALIFORNIA FAMILY RIGHTS ACT (CFRA)
• Effective January 1, 2021
• CFRA currently required private employers and public agencies with 50 or more employees to provide up to 12 weeks of job protected leave to
eligible employees for:
(1) Family care leave for a family member’s serious health condition (2) Medical leave for an employee’s own serious health condition
(3) Bonding leave for the birth, adoption or foster care placement of a child
• The new law expands the CFRA to apply to California employers who employ 5 or more employees
• Eliminates eligibility requirement of working at location with 50 (or 20) employees within a 75-mile radius
• Retains other eligibility requirements of 12 months, 1,250 hours
• Unpaid Leave – however, employee may request paid benefits from EDD
CALIFORNIA FAMILY RIGHTS ACT (CFRA)
• Broadens the definition of family member to include grandparents, grandchildren, siblings, and domestic partners.
• Broadens the definition of child to include adult children (even if not dependent) and children of a domestic partner.
• Deletes the provision specifying that if both parents work for the same employers, the employer is not required to provide more than 12 weeks total leave to both in connection with the birth, adoption or foster care placement of a child. Employers are now required to provide 12 weeks to each parent in that situation.
• Eliminates key employee exception.
• Deletes language from the CFRA that authorizes an employer to refuse
reinstatement to salaried employees who are among the highest 10% of the
Questions?
박수영 변호사
spark@fisherphillips.com
Thank You!
박수영 변호사
spark@fisherphillips.com
