HR News

Cal/OSHA Update for Fully Vaccinated Employees

Last month we let you know that Cal/OSHA would soon be providing updates to its Emergency Temporary Standard (ETS) regarding COVID-19 safety in the workplace. After a delay and a few revisions, the proposed changes were approved June 3, and will become effective June 15. We understand that the requirements for face coverings and social distancing in our workplaces are primary concerns, so we address those questions below.

Physical Distancing

Cal/OSHA provides two options for how businesses may approach physical distancing:
1. Employers continue with distancing protocols, with exceptions for 1) those wearing respirators (N95 mask), 2) where distance is not possible, and 3) momentary exposures while employees are in passing.
2. Employers can determine employees’ vaccination status and provide unvaccinated employees with respirators for voluntary use. (This would necessitate the creation of a respirator training/use plan in compliance with the relevant regulations.) In this case, distancing is not required.
These requirements will be in place until July 31, 2021. Cal/OSHA does not indicate what will happen after that date.

Face Coverings

Cal/OSHA still requires employers to ensure that face coverings are worn by employees whenever they are within six feet of another person (indoors or outdoors), with the following exceptions:

1. When an employee is alone in a room, or when all persons in a room are fully vaccinated and do not have COVID-19 symptoms.

2. When employees who are fully vaccinated and do have have COVID-19 symptoms are outdoors.

3. While eating or drinking, with 6 feet of distance between employees, and outside air supply.

4. Employees who cannot wear face coverings due to a medical or mental health condition or disability.

5. When employees are wearing respiratory protection respirators required by the employer.

Face covering rules appear to be indefinite. Further, employers cannot prevent any employee from wearing a face covering if he/she wants to do so, unless it would create a safety hazard.

So, What Do We Do Now???

If everyone in your workplace is fully vaccinated, you can throw a big un-masked, un-distanced party to celebrate! You may need to re-introduce yourselves, as we’ve forgotten what each other’s full faces look like over the past year.

Last month we let you know that Cal/OSHA would soon be providing updates to its Emergency Temporary Standard (ETS) regarding COVID-19 safety in the workplace. After a delay and a few revisions, the proposed changes were approved June 3, and will become effective June 15. We understand that the requirements for face coverings and social distancing in our workplaces are primary concerns, so we address those questions below.

Physical Distancing

Cal/OSHA provides two options for how businesses may approach physical distancing:
1. Employers continue with distancing protocols, with exceptions for 1) those wearing respirators (N95 mask), 2) where distance is not possible, and 3) momentary exposures while employees are in passing.
2. Employers can determine employees’ vaccination status and provide unvaccinated employees with respirators for voluntary use. (This would necessitate the creation of a respirator training/use plan in compliance with the relevant regulations.) In this case, distancing is not required.
These requirements will be in place until July 31, 2021. Cal/OSHA does not indicate what will happen after that date.

Face Coverings

Cal/OSHA still requires employers to ensure that face coverings are worn by employees whenever they are within six feet of another person (indoors or outdoors), with the following exceptions:
1. When an employee is alone in a room, or when all persons in a room are fully vaccinated and do not have COVID-19 symptoms.
2. When employees who are fully vaccinated and do have have COVID-19 symptoms are outdoors.
3. While eating or drinking, with 6 feet of distance between employees, and outside air supply.
4. Employees who cannot wear face coverings due to a medical or mental health condition or disability.
5. When employees are wearing respiratory protection respirators required by the employer.
Face covering rules appear to be indefinite. Further, employers cannot prevent any employee from wearing a face covering if he/she wants to do so, unless it would create a safety hazard.

So, What Do We Do Now???

If everyone is your workplace is fully vaccinated, you can throw a big un-masked, un-distanced party to celebrate! You may need to re-introduce yourselves, as we’ve forgotten what each other’s full faces look like over the past year.

However, if you’re like most companies where some/most employees have received the vaccine and others have not, you’ll need to consider a few tough options. You may require all employees to continue observing the current face covering and distancing protocols, but this is likely to be met with frustration by your vaccinated staff who are more than ready to get back to pre-COVID office life.

In order to allow employees to stop masking and distancing, employers will need to ensure that unvaccinated staff are not coming into close contact with others and/or are wearing a Cal/OSHA approved respirator (generally, this means an N95 mask that is fitted and worn properly). If the employee can work alone in a room, this may be a reasonable option. If the position requires regular contact with others, it will present a greater challenge.

In work environments that are open to the public, such as restaurants, or where physical distancing is not feasible, such as a packing line, all employees should continue to wear face coverings. Non-vaccinated employees must be provided with a respirator for voluntary use.

Employees who are unable to receive a COVID-19 vaccine due to a medical condition or a religious belief must be reasonably accommodated. In these cases, the accommodation still includes face coverings and maintaining physical distance from others. If the employee cannot wear a face covering due to a medical or mental disability, he/she must be tested for COVID-19 weekly during paid time. Employers should require documentation of the need for accommodation, such as a doctor’s note for a medical disability, or a statement confirming the religious tenets prohibiting vaccination.

If an employee is declining vaccination for a reason that is not protected under state or federal law, employers are not obligated to figure out an accommodation or keep the person employed. While this may be a difficult step to take, the disruption to workplace operations may tip the scales toward a termination decision.

What About the State’s “Re-Opening” on June 15th?

California’s Blueprint for a Safer Economy is set to be lifted on that date, which will allow businesses to fully re-open. We also expect relaxed mask mandates in most situations for fully vaccinated individuals. However, employers must still follow Cal/OSHA requirements for employees in the workplace, as described above.

Can I Stop Requiring Employees to Fill Out the Daily Health Screenings?

YES. (Whew!) Employers are still required to screen employees for potential symptoms or exposure to COVID-19, but we can allow staff to self-screen at home prior to arriving at work. Rather than gathering a never-ending stack of paper screening forms, you may instruct employees to inform you if they are experiencing COVID-19 symptoms and stay home from work until you can assess the situation.

Can’t I Just Ignore This Craziness?

We know it has been an ongoing struggle to implement all of these changing requirements, and it’s tempting to take the risk that government agencies will be none the wiser if your business doesn’t follow the letter of the law. The differentiation between vaccinated and unvaccinated employees is likely to create unfortunate tension in the office and pressure on staff who prefer not to receive the vaccine. However, an investigation or audit could be triggered when you least expect it – an angry employee leaving your company, or a person who feels you’re not doing enough to protect employees’ health could easily place a call to Cal/OSHA or other agency. Even if the company prevails in that issue, the time, expense, and worry will take a toll. All businesses are strongly encouraged to abide by our state and local government regulations, and join us in watchful waiting for further gradual changes to be made.

Adding Paid Sick Leave, Including Supplemental COVID-19 PSL to the Paycheck Stub

Written By Doug Larsen

PSL Benefits. Almost every California employee is entitled to 24 hours or three days of PSL annually. Effective on March 29, 2021 the state of California has required employers of more than 25 employees to provide up to 10 days or 80 hours of Supplemental COVID-19 PSL. This supplemental benefit expires September 30, 2021.
Conditions for Supplemental PSL. Supplemental PSL is available if the employee is not able to work because (s)he:

1) is subject to a COVID-19 quarantine or isolation order,
2) has been advised to self-quarantine,
3) is attending an appointment to receive a vaccine,
4) is experiencing symptoms due to a vaccine,
5) is experiencing COVID-19 symptoms and is seeking a medical diagnosis,
6) is caring for a family member who is quarantining, or
7) if a child’s school or place of care is closed.

Required Notice. The law requires an employer to provide written notice of PSL or Supplemental PSL that is available to each employee. Notice must be provided each payday on the itemized wage statement (paycheck stub) or on a separate writing included with each paycheck.
Many employers don’t understand the liability that is incurred in the event the available PSL or available Supplemental PSL is not included on the paycheck stub or on a separate writing with the paycheck.

Liability for Failure to Provide Notice. Per Labor Code § 248.5(b)(1), the Labor Commissioner may order “the payment of an additional sum in the form of an administrative penalty to an employee” whose rights are violated as a result of a violation of the Healthy Workplaces, Healthy Families Act.

Labor Code 248.5(b)(3) describes this administrative penalty. If the employer’s violation of the Act results in harm to the employee or results in a violation of the rights of an employee, the administrative penalty is $50 per day not to exceed $4,000 per employee. The penalty is paid to the employee.
In a hearing in which I (Doug Larsen) participated, the Hearing Officer in a hearing before the Labor Commissioner issued an award on behalf of an employee whose paycheck stubs did not include available PSL. The employee made it clear that he was never sick, that he never sought sick leave, and that he did not ask how much sick leave was available to him. He did not care.
Nevertheless, the Hearing Officer wrote, “Defendant did admit Plaintiff was not provided written notice of available sick leave hours, therefore, Plaintiff is entitled to recover $4,000.00 pursuant to Labor Code section 248.5(b)(3) for other harm or violation of sick leave provisions.”

A seemingly harmless error resulted in a $4,000 penalty. Consider the employer with 26 employees who fails to include available Supplemental PSL on the paycheck stub. The penalty is $104,000.

Conclusion. It is critical for employers to understand and to comply with each of the wage and hour provisions imposed under California law. California has adopted a draconian system of enforcing minor violations of the law, even those violations that do not result in actual harm to an employee. I recommend that employers undergo an audit of their wage and hour practices. While the process is time-consuming and expensive, an audit is dwarfed by the substantial liability for damages, statutory damages, civil penalties and attorneys’ fees that can be imposed for a violation of the law.

COVID-19: Navigating the (Slow) Return to Normal

In Fresno County and surrounding areas, we’re seeing encouraging signs of a return to mostly-normal life. Vaccinations are ongoing, and the decrease in COVID cases has brought us into the state’s Orange Tier for the first time.

While we’re all thankful for these steps in the right direction, there continue to be questions about the interplay of state/local regulations and federal guidance.
Below is a brief list of FAQs based on recent client inquiries.

Q: I heard about a White House announcement concerning new tax credits…are there new incentives for paid time off when employees receive COVID-19 vaccinations?

A: Effective March 29, 2021, the American Rescue Plan Act (ARPA) extended employers’ ability to receive payroll tax credits for Emergency Paid Sick Leave (EPSL) payments to employees through September 30. The Act also added two new qualifying reasons for using EPSL: time off work to receive a COVID-19 vaccination, and recovering from vaccination symptoms/side effects. Strangely, almost a month later, President Biden has made an announcement about tax credit incentives for employees to be vaccinated. A variety of media sources are reporting this as breaking news, but there are no new tax credits or incentives at this time. If your company is paying EPSL (or state Supplemental Paid Sick Leave) when employees have a qualifying reason for time off, including receiving vaccinations, you’re already on the right track.

Q: I had to lay off several people due to the shut-downs last year. Now that I am ready to hire more employees, are there any rules to be aware of?

A: On April 16, 2021, Governor Newsom signed Senate Bill 93, which gives specific rehire and retention requirements for certain types of businesses. Covered employers include: hotels, private clubs, airport hospitality operations and service providers, and employers that provide commercial janitorial, maintenance, or security services. Under the law, within five business days of establishing an open position, an employer must provide a written job offer to all qualified employees who had been laid off due to COVID-19. The former employee(s) must be given five business days to respond. If multiple people respond to offers for a single position, the person who had the most seniority with the company must be given preference for rehire. Employees who had been terminated for disciplinary reasons, as opposed to a COVID-related layoff, do not need to be included.

If your company is covered by this new law, please contact one of our Consultants with any questions you have.

Q: The CDC says that fully-vaccinated people can gather without masks and do not have to quarantine after a COVID-19 exposure. If everyone in our office is vaccinated, can we reduce or eliminate our COVID safety protocols?

A: The CDC provides non-binding recommendations to individuals, which is very different from the regulations imposed by our state and local government agencies. The requirements to conduct daily health screenings, wear face coverings when within six feet of others, and exclude exposed employees from work are set forth by County Public Health Departments and Cal/OSHA, and have not yet been rescinded. On a similar note, the Fresno County Board of Supervisors announced the end of its local emergency order, but this is a largely symbolic effort that has no impact on employers’ required safety measures. These agencies take the CDC guidance seriously, and we hope to see a ripple effect of lifted regulations over time. But employers are wise to stay patient and avoid costly violations until we see official regulatory changes.

Q: I read about a notice that must be given to employees regarding federal COBRA subsidies. Am I supposed to post that with my Labor Law posters or include it in my onboarding materials?

A: The American Rescue Plan Act also includes a 100% COBRA subsidy for employees who lost health care coverage due to an involuntary termination or a reduction in hours. Eligible individuals can receive subsidized coverage from April 1 through September 30, 2021. The U.S. Department of Labor issued a requirement to notify qualified beneficiaries no later than May 31, 2021, and provided a model notice that may be used. If your company uses a third party administrator for COBRA elections, we suggest checking to be sure they are providing notice to all potentially eligible individuals. You may also include the model notice in your exit paperwork for terminated employees, and provide it to those who lose coverage due to reduction in hours through September 30.