On September 9, President Biden announced that he would instruct the U.S. Department of Labor to issue an emergency rule requiring private employers with 100+ employees to ensure that all workers are fully vaccinated or submit to weekly COVID testing. Employers would be required to provide paid leave for the time it takes workers to get vaccinated or to recover from vaccine-related symptoms. The requirement would be implemented and enforced by OSHA. (This is in addition to an Executive Order requiring COVID vaccination for all federal employees and those working for federal contractors.)
At this time, we do not have details regarding effective dates or possible exemptions. When the Department of Labor’s emergency rule and OSHA’s regulations are published, we will provide updated information. In the meantime, you can read more information about the President’s plans for vaccinations and other COVID measures on the White House website. Please contact one of our certified Consultants if you have any specific questions for your business.
On Tuesday, July 26, the California Department of Public Health issued an order for workers in healthcare facilities. In response to the increasing COVID-19 cases in California – caused primarily the Delta variant of the COVID-19 virus – the CDPH is taking action “necessary to protect particularly vulnerable populations, and ensure a sufficient, consistent supply of workers in high-risk health care and congregate settings.” Healthcare facilities were already subject to unique mask mandates, and as a result of this order, requirements for healthcare employers are increasing.
When does this new CDPH order take effect?
This order takes effect August 9, 2021, at 12:01a, and “facilities must be in full compliance with the order by August 23, 2021.”
Who does this new CDPH order apply to?
This order applies to organizations that fall under three broad categories: acute health care and long-term care settings, high-risk congregate settings, and other health care settings. Covered under these categories are facilities from hospitals and skilled nursing facilities to clinics/doctor’s offices, dental offices, and hospice facilities.
What are healthcare facilities required to do?
Healthcare facilities are required to take action documenting employee vaccination status, providing for/enforcing employee masking, and testing employees who are not fully vaccinated on a weekly basis.
All healthcare facilities must verify and track the vaccine status of their employees. Vaccination verification must be accomplished through one of the following:
1. COVID-19 Vaccination Record Card, including the type of vaccine and the date of the last dose administered
2. Photo of a COVID-19 Vaccination Record Card
3. Digital photo of a COVID-19 Vaccination Record Card
4. Documentation from a health care provider
5. A digital record with QR code (including the record available at https://myvaccinerecord.cdph.ca.gov/)
Facilities must have a plan for tracking worker vaccination status. When vaccination status is unknown or unverified, workers must be treated as unvaccinated.
Masks and Respirators
All healthcare facilities must follow current CDPH masking guidance. In an order issued June 15, the CDPH required masks for everyone at healthcare facilities, regardless of vaccination status. Where applicable, healthcare facilities must also follow Cal/OSHA’s Aerosol Transmissible Diseases (ATD) standard. Cal/OSHA’s emergency COVID-19 standard also requires that respirators be provided employees upon request.
For acute health care and long-term care settings, facilities must provide respirators to those not fully vaccinated who work indoors in close proximity to patients/residents or patient/resident areas. Workers are encouraged to wear respirators in these settings. These facilities must also instruct workers on how to wear respirators and perform a seal check.
For high-risk congregate settings and other health care settings, when respirators are not required, facilities must provide those not fully vaccinated with surgical masks. Surgical masks are required indoors whenever workers are nearby others.
For acute health care and long-term care settings, workers who are not fully vaccinated must be tested at least twice weekly. For high-risk congregate settings and other health care settings, workers who are not fully vaccinated must be tested at least once weekly. These tests can be either molecular or antigen as long as they have received Emergency Use Authorization. Facilities must have a plan for tracking test results and conducting contact tracing, and they must report results to the local public health department.
Those who are exempted from the vaccine requirement (e.g., due to a medical condition) are not exempt from this testing requirement. Additionally, those who previously recovered from COVID-19 over 90 days earlier are not exempt from this testing requirement.
Healthcare employers are now faced with a difficult choice – should you pay for expensive weekly testing for employees who are not fully vaccinated, or should you require vaccination as a condition of employment? Unfortunately, this CDPH order forces us into that very choice.
The California Supreme Court determined that employers must use the employee’s regular rate of pay in calculating the premium paid to employees who were not provided a meal, rest or recovery period. (Ferra v. Loews Hollywood Hotel, LLC, Cal.LEXIS 4877 (July 15, 2021).) The issue came before the Court because the Legislature enacted ambiguous legislation that called for employers to pay the meal or rest period premium at the employee’s regular rate of compensation. Prior courts determined that the regular rate of compensation meant the employee’s hourly wage. The Supreme Court rejected this position.
This decision requiring an employer to pay the regular rate of pay for a missed meal or rest period premium will have a devastating effect on California businesses in at least three ways.
The Regular Rate of Pay is Often More than the Hourly Rate of Pay. The only time the regular rate of pay and the regular rate of compensation are the same is when the employee does not receive any compensation other than an hourly rate of pay.
However, if an employee earns compensation in addition to an hourly wage, the regular rate of pay will always be more than the hourly wage. This is because in calculating the regular rate of pay, an employer must include all forms of compensation.
The precise method of calculating the regular rate of pay will differ depending on the type of extra compensation earned. Consider the employee who worked 40 hours and earns $15 plus a production bonus of $100. The regular rate of pay is calculated at dividing total compensation by total hours. Here, the calculation is ($15 x 40 hrs) + $100 = $700
40 = $17.50. The premium which must be paid for a missed meal or rest period is $17.50.
The Premium Could Vary From Week to Week. Consider the example above. In the first week the employee earns a $100 commission. In the subsequent week, the employee earns a $200 commission. The regular rate of pay in the second week is $20. This means employers will need to make constant reviews of compensation earned in each workweek to pay the employee correctly.
In addition, will the employer be required to make adjustments to prior pay periods if a bonus is not paid until the last pay period in a quarter or in the year?
The Court’s Decision is Retroactive. The Court determined that its ruling, requiring employers to pay the regular rate of pay as the premium for missed meal and rest periods, is retroactive. This means employees can make claims for unpaid meal and rest periods for the past four years. Consider the employer who paid its employees a meal or rest period premium calculated at the hourly wage. Will the employer now be required to go back and increase the amount of the premium paid based on the regular rate of pay during that workweek or pay period?
Moreover, consider the employer who does not go back and make additional payments. Or consider the employer who paid a meal or rest period premium based on the hourly wage and the employee has since left the workplace. Since a meal or rest period premium is considered to be a wage, that means the employer did not pay all wages due at the time of termination. That employer could be held liable for 30 days of waiting time penalties calculated at the employee’s daily wage.
Employers should consider whether or not to provide employees with non-discretionary bonuses such as safety or production bonuses, on-call payments, benefits for meals or gym memberships, and any other similar payments. This extra compensation creates a regular rate of pay that is higher than the hourly rate of pay.
Discretionary pay, which is determined in the sole discretion of the employer, is not part of the calculation for the regular rate of compensation. Thus, I recommend employers use discretionary bonuses if they want to provide employees with additional pay for superior performance.
Employers should also consider reviewing their payroll to see what premium payments were made to employees in the past. Employers need to consider whether or not they need to supplement those prior payments so that the premium equals the regular rate of pay.
I recommend every business to contact its legal counsel to consider the impact of the Court’s opinion on its workplace. Wage and hour matters are already complex issues. The Court has now made these issues even more complex and the Court has also opened the door for more potential liability.
Fishman, Larsen & Callister