At Long Last: Cal/OSHA Approves Revisions to ETS and EEOC Brings Some Clarity to Vaccine Incentives and Policies

Stradling Yocca Carlson & Rauth

Stradling Yocca Carlson & Rauth

Updates to the Cal/OSHA ETS

Last week, Cal/OSHA approved several significant changes to the Emergency Temporary Standards (“ETS”) that relax the ETS standards for vaccinated employees, physical distancing, and face coverings. These changes are still subject to the approval of the Office of Administrative Law but will likely become effective on June 15, 2021.

Exclusion from the workplace: The revised ETS creates broad exemptions for workers who have been fully vaccinated with an FDA- approved or emergency use authorized (“EUA”) vaccine, as well as for workers who have tested positive for COVID-19 within the past 90 days (“naturally immune workers”). Fully vaccinated means two weeks have elapsed since the last dose of the vaccine. Fully vaccinated or naturally immune workers would not need to be excluded from work after a close contact with at the workplace with a COVID-19 case so long as they remain symptom-free. However, fully vaccinated and naturally immune employees who test positive must still be excluded for 10 days even if asymptomatic. Notably, this exemption does not include vaccines which do not have EUA so if you have employees who received vaccines in other countries that don’t have EUA in the U.S. then they will not be considered fully vaccinated.

Under the prior version of the ETS employees had to be excluded from the workplace if they were a COVID-19 case or came in close contact with a COVID-19 case during the high risk exposure period. A COVID-19 case is a person who has tested positive, was ordered to isolate, or has died due to COVID-19. A close contact means being within 6 feet of a COVID-19 case for more than 15 minutes in a 24 hour period. And finally, the high risk exposure period is two days before the COVID-19 case tested positive or exhibited symptoms of COVID-19 until they meet the requirements to return to work.

Face Coverings: Under the new version of the ETS, fully vaccinated employees are exempt from masking if everyone in the same room is fully vaccinated and asymptomatic. While not specifically addressed in the revised ETS, based on requirements of the existing ETS it seems the door to the room containing fully vaccinated employees must be closed and masks still must be worn in the common areas unless all employees at the workplace are required to be vaccinated. Furthermore, masking is not required if the fully vaccinated employees are working outside and asymptomatic. Employees working outdoors who cannot feasibly perform tasks while wearing a face covering must remain at least six feet from other employees unless that employee is fully vaccinated or tested for COVID-19 weekly at no cost to the employee. Employees who cannot wear a mask due to a disability or medical or mental health condition or due to a sincerely held religious belief also must remain at least six feet from other employees. Where an employer has a mandatory vaccination policy, this physical distancing requirement must be considered when evaluating possible reasonable accommodations for employees who cannot wear makes due to disability or other health condition or sincerely held religious belief. Unlike the physical distancing requirements discussed below, there is no sunset date associated with this requirement. Additionally, naturally immunized workers are not excepted from the face covering requirements. The new ETS provisions also refines the definition of “face covering” to exclude “a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric,” and specifies the face covering must be a medical, surgical, or two fabric layer mask, or respirator—meaning many of the more fashionable masks that employees may have personally purchased and been using will no longer be sufficient to meet the safety standard.

Finally, starting July 31, 2021, all employees who are not fully-vaccinated shall be provided N95 filtering respirators or other NIOSH approved respirators for voluntary use. Employers must train all employees who are provided those respirators on how to properly wear the respirator, how to perform a seal check, and the fact that facial hair interferes with a seal. Although the ETS requires employers to encourage respirator use and requires providing the correct size respirator to non-vaccinated employees, they do not have to wear respirators – they just have to be available for them. Of course, this requirement does not apply to employees still working remotely.

Physical Distancing: The revised ETS provisions ends all physical distancing requirements as of July 31, 2021. Until then, physical distancing only applies to employees working indoors, or at outdoor mega-events (more than 10,000 attendees). These requirements apply regardless of whether the employees are vaccinated. However, the revisions add an exception for employees wearing respirators, like an N95 mask. Employers can voluntarily choose to provide N95 masks to employees to avoid the physical distancing requirements. The prior version of the ETS required all employees to be six feet apart except where an employer could demonstrate that six feet of separation is not possible.

Employer Provided Testing: Under the revised ETS, employers are no longer required to offer COVID-19 testing to workplace close contacts if the exposed employees were fully vaccinated or had natural immunity (previously infected within the prior 90 days). Under the prior version of the ETS an employer had to provide testing to any employee who had a close contact with a COVID-19 case.

Outbreak Testing: Under the existing version of the ETS, employers had to offer weekly testing to employees at an “exposed worksite.” The revisions to the ETS eliminate the term “exposed worksite” and replace it with the term “exposed group.” Exposed group encompasses all persons at a work location, working area, or a common area at work, where the people present included a COVID-19 case (except for short passing through while masked) at any time during the high-risk exposure period. This includes common areas like bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. However, employees who are part of a distinct group, like a shift that does not overlap with another, would be considered a separate exposed group even if a second shift later worked in the same location. Outbreak testing would kick in when there are three or more COVID-19 cases in an exposed group. Significantly, the revised ETS removes when the local public health department identifies the workplace as the location of an outbreak as a trigger for “outbreak testing.” This should eliminate the challenge many employers have faced with inconsistency in how local public health departments identify outbreaks.

Training Requirements: The revised ETS adds required training topics including information on COVID-19 vaccinations, COVID-19 testing accessibility, and for employers who provide respirators for voluntary use, training on how to properly wear the respirator and how to perform a seal check. Additionally, employers would need to train employees that N95s and other respirators protect users from airborne diseases like COVID-19, as opposed to face coverings which primarily protect people around the user.

Notification After COVID-19 Case at the Worksite: The revised ETS adds and clarifies several of the requirements around COVID-19 notifications to align with previous legislation, including but not limited to, a requirement that COVID-19 notifications include the employer’s disinfection plan. Verbal notice of a COVID-19 case in the workplace if the employer has reason to know that an employee has not received the written notice. This is an important change for the many employers who have had difficulty complying with existing written notification requirements. In cases where the employer has reason to believe an employee has limited literacy in the language of the written notice, the revised ETS also require that verbal notification be provided in a language understandable by the employee. (Employers are required to provide the notification in both English and in the language understood by a majority of employees.)

Additionally, the notice requirement now kicks in if the employer knew or “should have known” that a COVID-19 case visited the worksite. Previously the requirement only applied if the employer actually knew that a COVID-19 case visited the worksite. In doing so, Cal/OSHA is signaling that employers should be vigilant in determining when employees and visitors are exhibiting COVID-19 symptoms and should have methods in place for employees to easily report symptoms and COVID-19 cases.

Engineering Controls: The existing version of the ETS requires “cleanable solid partitions” when employees are assigned to work at work stations such as cash registers, desks, production lines, and other locations where physical distancing is not maintained at all times. The revised ETS ends the requirement for these “solid cleanable partitions” on July 31, 2021. However, the face covering requirements discussed above continue beyond July 31, 2021, so employees will still need to wear masks unless all other employees are vaccinated.

Exclusion pay: Under the revised ETS, employers must pay all excluded employees their full wages and maintain all benefits as if the employer had not excluded them (i.e., for whatever shifts they missed). The revised ETS also provides that this exclusion pay must be paid no later than the next regular pay date after the pay period(s) in which the employee is excluded. The exclusion pay requirement does not apply “where the employee received disability payments or was covered by workers’ compensation and received temporary disability.” Nor is it required when the employer can demonstrate the close contact was not work related.

Notably, the revised ETS eliminates an exception in the current ETS stating that exclusion pay is not required when the excluded employee is not “otherwise able and available to work.” Therefore, under the revised ETS even if an excluded employee is not able to work – due to severe COVID symptoms or otherwise – the revised ETS still requires that the employer provide exclusion pay.

Vaccine-verification not required: The ETS revisions do not require blanket vaccine-verification, of employees or third parties, along the lines of the onerous requirements in Santa Clara County.

Vaccination Requirements – Unanswered Question: The most significant question left unanswered by the new guidance is how can managers or co-workers know who is vaccinated so that they can enforce the revised ETS masking requirements. There are several options and each has some risk. Which option to use depends on the specific employer and their risk tolerance. One option is to only allow vaccinated employees in the workplace. This is tantamount to a mandatory vaccination policy and may require employers to terminate employees who cannot work remotely. Another option is to only allow in person meetings and conferences between vaccinated employees. This way employers could take advantage of the relaxed masking requirements discussed above. Both these options require that the accommodation process be followed for employees who cannot receive the vaccine due to a religious or disability based exemption as those employees otherwise would not be afforded the same employment opportunities as other employees. A further option for some employers may be to separate vaccinated and non-vaccinated employees into different work groups to make enforcement easier. Importantly, any separation or other method of identifying which employees are fully vaccinated risks unlawful discrimination or harassment of unvaccinated employees by co-workers or managers. These options are by no means the only ones available. Because of the risks involved, we suggest reaching out to legal counsel if the employer is considering a mandatory vaccination policy or a policy aimed at identifying which employees are vaccinated.

Further revisions: Cal/OSHA approved a three person panel to explore further revisions to the ETS, so stay tuned for further updates and FAQs explaining the new requirements. This panel is needed as the current revisions, while a step in the right direction, still leave some questions unanswered. In addition to questions about how employers determined which employees are vaccinated, other questions include whether masking requirements apply if all employees are vaccinated but a customer is not (answer is masking is likely required)? What is the approved method for determining whether an employee is vaccinated? The ETS only states than an employer must have “documentation” showing that an employee is fully vaccinated, but does not state what documentation is sufficient. Based on the guidance thus far, the best practice is to have employees complete a form certifying that they have received the vaccine and the date of their final dose. All of these questions, and more, were raised in Cal/OSHA’s public meeting and employers should expect to see additional FAQs addressing these points.

EEOC Vaccine incentives

The EEOC recently updated its FAQs to address several concerns employers raised after it issued its guidance regarding mandatory vaccine policies. The new guidance reduces the risk of offering vaccine incentives, brings some clarity to requesting vaccination status, and mandatory vaccination policies.

Vaccine Incentives

Resolving an issue that has given rise to considerable uncertainty, the revised FAQs provide that employers who wish to encourage, rather than mandate, COVID-19 vaccines may incentivize their employees to be vaccinated, although limitations apply when the employer (or its agent) administers the vaccine.

  • Employers may offer unlimited incentives for employees who present proof that they have been vaccinated through third parties such as a government vaccination site, doctor, or pharmacy. While the FAQs do not give examples of incentives, monetary incentives such as bonuses or the opportunity to enter a lottery for a larger cash prize and additional paid time off are options that some employers have already implemented which appear to be consistent with the scope of the EEOC guidance.
  • When the employer administers the vaccine itself or contracts with a vendor to do so, incentives for such employer-provided vaccinations are permissible only if they are not “so substantial as to be coercive.” An incentive may become coercive when it is so large that it effectively makes getting the vaccine involuntary because the reward is so big. The FAQs do not elaborate on what would be considered “coercive.” As a result, employers who wish to offer incentives should consider requiring employees to provide proof of vaccination from an independent source rather than administering vaccines itself or providing them through a vendor.
  • An employer may offer an employee’s family member the opportunity to be vaccinated if no incentive is offered.
  • Employers may also encourage vaccination through other means, such as educating their employees about COVID-19 vaccines, raising awareness of the benefits of vaccination, addressing common questions and concerns, and providing transportation to vaccination sites. The FAQs provide links to federal resources about getting vaccinated that employers can share with employees.

Vaccine Status Inquiries

The FAQs confirm that employers may ask employees whether they have received a COVID-19 vaccination, and may require proof of vaccination, without running afoul of federal equal employment opportunity (EEO) laws. Employers may not, however, ask follow-up questions (“Why are you not vaccinated?”) that could elicit disability-related information or genetic information, including information about the employee’s family medical history. But if an employee indicates that they cannot get vaccinated due to a disability, physical or mental health condition, or sincerely held religious belief and if not being vaccinated means the employee cannot perform work or cannot enjoy all terms and conditions of employment, then the employer must engage in an interactive process to determine if any reasonable accommodation can be made.

Although employers may ask about vaccination status, the EEOC emphasizes that employee vaccine information is confidential and, like medical information, must be stored securely and separately from employees’ personnel files. This means that managers and supervisors ordinarily should not be told about an individual employee’s vaccination status.

Mandatory Vaccine Policies

the FAQs confirm the EEOC’s existing guidance that under the federal EEO laws, employers may require all employees to be vaccinated to enter the workplace, provided that reasonable accommodations are offered for disability and sincerely held religious belief. The new guidance also makes clear that pregnant employees may be entitled to exceptions to a vaccine mandate.

Under the EEOC’s existing guidance, employers may not exclude from the workplace employees who are unable to be vaccinated due to disability or religious belief unless the employee’s presence onsite constitutes a “direct threat,” meaning a “significant threat of substantial harm” to the employee or others that cannot be eliminated or reduced by reasonable accommodation. The new FAQs elaborate that, in conducting the individualized inquiry that must be made to determine whether returning the employee to work creates a direct threat, employers may consider several factors, including, for example:

  • the current level of COVID-19 community spread;
  • the extent of direct interaction the employee typically has with others during the workday;
  • the proportion of individuals in the workplace who are already vaccinated; whether others will be wearing masks; and
  • whether social distancing is practicable.

The EEOC has not indicated how these factors should be balanced. But as a practical matter, employers in lower-risk settings such as office buildings may be unable to establish that an unvaccinated employee’s presence in the workplace rises to the level of a direct threat at this stage of the pandemic, because the threat can be reduced or eliminated with mitigation measures. While allowing employees to continue to work remotely may be a reasonable accommodation in some cases, employers should consider alternatives accommodations. The FAQs provide specific examples of reasonable accommodations for qualified unvaccinated employees such as wearing a face mask; socially distancing; working a modified shift; getting periodic COVID-19 tests; teleworking; and reassignment (which the EEOC states should be a last resort).

Certain fully vaccinated employees may still be entitled to COVID-19-related accommodations. For example, the FAQs state that the COVID-19 vaccine may not offer immunocompromised individuals the same protections as other vaccinated individuals. According to the EEOC, it is a best practice for employers mandating COVID-19 vaccines to notify employees that accommodation requests will be considered based on disability and religion on an individual basis.

Finally, the FAQs caution that employers with mandatory vaccine programs “may need to respond to allegations that the requirement has a disparate impact—or disproportionately excludes” employees based on protected characteristics such as race, color, religion, sex, national origin, or age. Employers “should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.” Unfortunately, the FAQs do not specify what circumstances may support a disparate impact claim, or how employers should respond to employee complaints that a mandatory vaccine policy has a disparate impact. If you receive any complaints of discrimination, we recommend reaching out to legal counsel to help guide you through the process.

As a cautionary note, while it appears highly likely that mandatory vaccination requirements are lawful, currently there is no definitive determination and there is no appellate court decision pertaining to COVID-19 vaccination requirements. We are aware of some lawsuits that have been filed on suspect grounds such as since the vaccine only has emergency approval by the FDA, requiring vaccinations is the equivalent of human experimentation. Employers should consult with their legal advisors if they have concerns related to implementing a vaccination requirement for their employees.

While this new guidance provides helpful insight, employers should stay tuned for updates, as the FAQs state that the EEOC is still considering the impact of the CDC’s recent guidance for fully vaccinated individuals on the EEOC’s current guidance. Additionally, other federal, state, and local laws may impose additional limitations on employer vaccine programs.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.

Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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