12.14.21

COVID-19 Update: California’s New Mask Mandate For All Indoor Public Spaces

COVID-19

COVID-19 Update:

California’s New Mask Mandate For All Indoor Public Spaces

In a press conference on Tuesday, December 13, 2021, California’s Health and Human Services Secretary, Mark Ghaly, announced a statewide mask mandate between December 15, 2021 and January 15, 2022. Shortly after this announcement, the California Department of Public Health (CDPH) published further guidance.

Specific direction is limited; the guidance simply says, “Masks are required for all individuals in all indoor public settings, regardless of vaccination status from December 15, 2021 through January 15, 2022 (surgical masks or higher-level respirators are recommended).”

The CDPH maintains a page for mask-related questions and answers, but this page has not been updated since November 30, 2021.

The CDPH also reminds workplaces that they are subject to Cal/OSHA regulations, including the COVID-19 Emergency Temporary Standard (ETS) which was effective in June 2021. If you’ve been following Sierra HR Partners’ HR Headliners and other breaking news releases, and if you’ve implemented a compliant COVID-19 Prevention Program, this brief mask mandate is the only necessary change. The requirement is set to expire January 15, 2022, but may be extended.

As reported by The Hill, “It’s unclear whether the mandate will be enforced, and Ghaly said during a briefing that he expects some places to have stronger enforcement than others.” Historically, some California municipalities have refused to enforce past mandates, and we do not have indication of possible penalties for failing to implement this latest requirement. Ghaly acknowledged that people are growing weary of ever-changing rules, but emphasized the effort to minimize COVID cases as much as possible. “We know that there’s going to be people who don’t necessarily agree with this, who are tired, who aren’t going to mask. We hope that those are few and far between, that most people see the purpose of doing this over the next month as something to protect them and their communities during a very tough time.”


11.19.21

HR Headliner November 2021: How Inclusive is Your Holiday Calendar?

HR Headliner
As we know, valuing diversity can foster an inclusive and engaged workplace. But have you given any thought to the diversity of your company’s holiday calendar? For most businesses, these celebrations are focused primarily around traditional Christian holidays, however an increasing number of Americans identify as Jewish, Muslim, Buddhist, Hindu, or no religious affiliation.
Here are a few ways to recognize your workplace’s diversity this holiday season:

 

  • Be sure employees know that holiday parties are not mandatory. Whether for religious reasons or other personal circumstances, some people may prefer to opt out.
  • Consider allowing employees to work on traditional holidays and take a different day off with pay for their own religious celebrations. (Remote work from home may be a great option on these days, when possible.)
  • Allow employees to plan office parties in observance of other religious holidays, and invite staff members to learn more about each other’s cultures. (Again, attendance is always optional.)
  • Take steps to learn more about the religious holidays that may be part of your employees’ lives. It’s great to wish everyone a Merry Christmas, but consider how much your staff members would appreciate proactive recognition of their special celebrations, as well.
Finding ways to not only accommodate, but encourage employees to observe their own religious holidays could be seen as a competitive advantage in attracting and retaining great talent. In a recent study conducted by Yello recruiting software, 83% of candidates consider a diverse workplace to be influential when considering an offer of employment. A 2021 Citrix study found that 86% of employees believe a diverse workforce will become increasingly important over time.
We will be talking about best-practices for office holiday celebrations in our Leadership Academy workshop “Keeping the Jolly in the Holidays” on Wednesday, December 1st. Join us via Zoom to learn more!

11.18.21

COVID-19 Update: OSHA’s Vaccine Mandate Blocked by a U.S. Court of Appeals

COVID-19
On November 4th, we let you know that the Occupational Safety and Health Administration (OSHA) filed a proposed rule requiring employers of 100 or more to ensure that their employees were either vaccinated against COVID-19 or tested weekly for the virus.
The very next day, petitions were filed by individuals, corporations, and States requesting that the rule be struck down. On November 12, 2021, the Fifth Circuit Court of Appeals issued an order staying the implementation of OSHA’s emergency temporary standard (ETS) pending judicial review to determine if a permanent injunction is appropriate. Below is a summary of the Appeals Court’s ruling:
The written decision begins by quoting OSHA’s own statement from June 2020 that an ETS was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19,” and points out that the Mandate does not attempt to explain why the federal government was previously outspoken against vaccine mandates, but now considers them to be an emergency necessity. President Biden is quoted from December 2020 as saying, “No, I don’t think vaccines should be mandatory.” The Court noted that OSHA was not created to enact “sweeping pronouncements on matters of public health” and the Mandate “likely exceeds the federal government’s authority under the Commerce Clause.”
Even if the Mandate were found to be constitutional, the Court recognized several significant flaws in OSHA’s requirements. The Court described the Mandate as a “one-size-fits-all sledgehammer that makes hardly any attempt to account for difference in workplaces and workers.” The ETS makes no distinction in the risks facing “a security guard on a lonely night shift” and a “meatpacker working shoulder to shoulder in a cramped warehouse.” Describing the requirements as both “staggeringly overbroad” and “underinclusive,” the Court points out that COVID-19 poses relatively little risk to the majority of Americans, but that under this rule, “the most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer.” “The underinclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”  
So, what do we do now? Because the ETS cannot be enforced at this time, the December and January deadlines for employees’ COVID vaccinations are no longer in effect. (Other vaccine requirements, such as those for health care workers and federal contractors still remain in place.)
There are a variety of federal petitions on this topic still to be reviewed, and California’s own Cal/OSHA regulation is set to be published in the near future. Smart, reasonable COVID safety measures such as knowing your staff’s vaccination status, monitoring for symptoms, and maintaining good workplace cleaning and hygiene will continue to be best-practices regardless of how the government tries to work through these complex issues.
As always, we’re here to help you navigate the ever-changing landscape of COVID-19 precautions. Stay tuned for more information, and contact one of our Consultants with any questions you have.

11.05.21

COVID-19 Update: OSHA Releases Proposed Vaccine Mandate

COVID-19
COVID-19 Update
OSHA Releases Proposed Vaccine Mandate
As directed by President Biden, on November 4, 2021, the Occupational Safety and Health Administration (OSHA) filed a proposed rule covering employers of 100 or more. The 490-page (!) rule and preamble contain a new Emergency Temporary Standard (ETS) with regulations for face coverings, testing, vaccine mandates, and more. These regulations are summarized for easier reading here.
California employers should note that our state-approved plan (Cal/OSHA) may adopt the federal standard or implement its own regulations that go beyond federal requirements. The state has 30 days to respond, so we will be watching carefully for any new information. In the meantime, employers should understand OSHA’s proposal, and Sierra HR Partners has the highlights:
Covered Employees
While all organizations with 100 or more employees are covered (except federal contractors and healthcare providers already covered by separate regulations), individual employees are not subject to these rules if they:
  • Do not report to a workplace where other individuals are present.
  • Work from home.
  • Work exclusively outdoors.
Vaccination Mandates, Verification, and Paid Time Off
Employers must verify the vaccination status of each of their employees. This won’t be new for California employers, who have been required to verify vaccination status under the revised Cal/OSHA ETS we received in June 2021. Under this federal ETS, though, covered employers cannot simply accept the employee’s attestation – we must request official documentation such as the vaccine card or a copy of medical records, and retain the information in employees’ medical files.
The ETS does allow employees to attest to their vaccination status in a statement only if they are “unable to produce acceptable proof.” That said, all vaccinations in California are recorded by the state and available within minutes at https://myvaccinerecord.cdph.ca.gov/, so it’s unlikely that any California employee will be without the kind of record required.
OSHA requires that employers provide paid time off (up to 4 hours) for employees to receive each vaccination dose and “reasonable” paid sick leave to recover from the side effects of being vaccinated. This paid benefit is in addition to existing company-provided sick leave, and is not tax-deductible.
Mandate Exceptions and Testing
Like other mandates we’ve seen, OSHA allows exceptions for medical conditions and religious objections. Those who are not fully vaccinated must test weekly. Any FDA-approved test may be used, including over-the-counter (OTC) tests, but regulations state that these tests cannot be “both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.” To the degree that employees utilize OTC tests, they’ll need assistance from a third-party for the tests to be legitimate.
Other Safety Measures
Additional measures included in the ETS will be familiar to California employers. Employees who are not fully vaccinated must wear face coverings when indoors or when riding in vehicles with others. Employees may remove masks only when alone in a room, when eating or drinking, or when wearing a face covering creates a safety hazard.
Employers must also provide specific information to employees. This includes:
1. Policies and procedures that comply with the ETS.
2. Information published by the CDC about vaccine safety and efficacy
3. Information about retaliation and discrimination protections.
4. Information about criminal penalties associated with knowingly supplying false statements or documentation (such as a fake vaccine card).
As stated above, we’ll be watching for Cal/OSHA’s response to the federal ETS, as well as any legal challenges that may be brought against either regulation. While we wait for final requirements, it is important for employers to determine employees’ vaccine status if you have not already done so. Stay tuned for more information, and contact one of our Consultants with any questions you have.

 


11.04.21

Federal OSHA Vaccine Mandate for Large Employers

COVID-19
Federal OSHA Vaccine Mandate for Large Employers
On November 4, 2021, federal OSHA announced a new Emergency Temporary Standard on Vaccination and Testing for employers with at least 100 employees.  The ETS requires the following:
  1. Covered employers to require a mandatory vaccination policy unless the unvaccinated employees are required to submit to weekly testing and to wear an appropriate facemask at work.
  1. Covered employers must provide paid time off for workers to obtain a COVID-19 vaccination as well as paid sick leave to recover from side effects that prevent vaccinated persons from working.
  1. Employers must comply with virtually all provisions of the ETS within 30 days after publication. These provisions include:
  1. Establishing a vaccination policy;
  2. Determining the vaccination status of each employee and obtain proof;
  3. Requiring employees to notify you of a positive COVID-19 test or diagnosis;
  4. Excluding COVID-19 positive employees from the workplace;
  5. Requiring employees not fully vaccinated to where face coverings indoors.
California maintains a federally approved state safety and health plan.  As such, it must adopt standards at least as effective as the federal OSHA standards.  Cal/OSHA recently posted this on its FAQ page:
Q: If federal OSHA adopts a standard obligating employers with 100 or more employees to require COVID-19 vaccines or weekly testing, what will happen in California?
A: California maintains an occupational safety and health plan that is approved and monitored by federal OSHA. As a “state plan state,” California is required to adopt occupational safety and health standards “at least as effective” as federal OSHA’s, in accordance with Section 18 of the federal Occupational Safety and Health Act of 1970 (29 USC § 667(c)(2)).
If federal OSHA adopts a standard obligating employers with 100 or more employees to require either vaccines or weekly testing for employees, the State will have 30 days after the date of promulgation of the federal standard to adopt a comparable standard.
Larger California employers can expect a similar requirement.  California may attempt to implement a mandate among smaller employers as well.
We recommend that employers immediately conduct a survey to determine the vaccination standards of employees.  This will give you the ability to quickly respond to any possible changes in the Cal/OSHA ETS.