Part 1: New Labor & Employment Laws for Businesses and Public Agencies in 2021
California lawmakers and regulatory agencies spent the greater part of 2020 responding to the coronavirus pandemic, passing legislation, creating regulations and issuing mandates and executive orders impacting both public and private employers.
In Part 1 of this annual Labor & Employment Legal Alert series, Best Best & Krieger LLP provides California employers updated information on the state’s COVID-19 regulations and legislation impacting workplaces. Unless otherwise noted, all California laws went into effect Jan. 1.
COVID-19 and the legislation enacted in response to the pandemic will continue to impact workplaces in 2021 and beyond. Many of the laws explored below do not expire until 2023.
Where previous Legal Alerts were written on any new law, links are provided.
Cal/OSHA Emergency Temporary Standards
California's Division of Occupational Safety and Health approved COVID-19 Prevention Emergency Regulations (or Emergency Temporary Standards) in November. Almost all California employers were required to implement the ETS, which went into effect Nov. 30 and remains in place for at least 180 days.
Many of the provisions are consistent with earlier public health guidance and mandates on physical distancing and face coverings. Other new or added provisions, including a new paid time off requirement and COVID-19 exposure notice requirements, require employers to implement new actions.
The regulations do not apply to: workplaces with one employee with no contact with others, employees working from home and employees who are already covered by an Aerosol Transmissible Diseases Plan in accordance with California Code of Regulations, Title 8 section 5199. The ATD regulations most commonly apply to employees working in health care facilities, laboratories, public health and paramedic and emergency response services.
One of the most significant requirements of Cal/OSHA’s ETS regulations is that employers implement a written COVID-19 Prevention Program, which can be a part of an Injury and Illness Prevention Program.
The CPP must address:
- A system for communicating key information with employees about COVID-19;
- Identifying and addressing COVID-19 hazards;
- Investigating and responding to COVID-19 cases in the workplace;
- COVID-19 training and instruction;
- Physical distancing, face coverings and personal protective equipment;
- A system for recordkeeping (including confidentiality measures), record access and reporting;
- Exclusion of COVID-19 cases and those exposed to COVID-19 in the workplace and
- Return to work criteria.
Employers are required to maintain records of the steps taken to implement the written CPP, and to make it available to employees, authorized employee representatives and Cal/OSHA upon request.
The ETS regulations also detail instructions for employers regarding:
- Notice Provisions: The standards require employers to provide notice of potential exposure to COVID-19 to all employees who may have been exposed. This means notifying those who were within six feet of a COVID-19 case for a cumulative total of 15 minutes or more in any 24-hour period within the “high-risk exposure period.” This includes notifying independent contractors who were present during the high-risk exposure period. Within this notice (a copy of which must be provided to any employee union representatives), employers are required to explain how employees can report symptoms, exposures and hazards without fear of reprisal. Employers should identify and address hazards in the workplace as well as include a disinfection and safety plan. Finally, employers should provide employees information on obtaining testing and available employer-provided benefits.
- Exclusion from Workplace: Employees who are considered to be a positive COVID-19 case and those who have had close contact with a positive COVID-19 case must be excluded from the workplace until the established return to work criteria has been satisfied (either based on the ETS regulations or under Executive Order or California Department of Public Health guidance). See below for additional information about the length of quarantine.
- Physical Distancing, Face Coverings and Other Controls: Employers must ensure that employees maintain at least 6 feet of distance from others, where possible. When it is not possible to maintain 6 feet of distance, individuals should be as far apart as possible. Momentary contact while in movement, such as in a hallway or aisle, is not considered a violation. Consistent with past guidance, employers must provide face coverings to (or reimburse the costs for) employees. Face coverings must be worn indoors as well as outdoors when within 6 feet of others. Limited exceptions apply. The standards also require employers to evaluate and implement protective measures regarding ventilation, cleaning and disinfecting, handwashing and personal protective equipment.
- Required Training: Employers are required to provide employees with training and instructions on physical distancing, face coverings and the importance of handwashing. They must also provide training on how COVID-19 spreads and its symptoms. Lastly, employers are required to instruct employees about the importance of not coming to work and getting tested if they have symptoms, as well as the COVID-19-related benefits available to them.
- Outbreaks: The regulations separate outbreaks in the workplace into two categories: outbreaks and major outbreaks. An outbreak is defined as three or more COVID-19 cases in an exposed workplace within a 14-day period. In an outbreak situation, all employees in the exposed workplace must be offered testing for COVID-19 immediately and one week later. This is true even if the employee has not knowingly had “close contact” with any positive COVID-19 case. For employees who remain in the workplace, ongoing testing should be offered at least every week until there are no new COVID-19 cases for 14 days. Employers must offer testing to employees free of charge and during employer-paid time. A major outbreak is classified as 20 or more cases within a 30-day period. Such outbreaks require the employer to offer initial testing and, for employees who remain in the workplace, on-going testing twice a week until no new cases arise in a 14-day period for those remaining in the workplace. Testing must be paid for by the employer and administered during employer-paid time. Following an outbreak, employers must investigate possible workplace-related hazards and implement any necessary changes to prevent further spread.
- Paid Time Off: If the ETS regulations require an employee to be excluded from work due to a COVID-19 exposure, their compensation, seniority and benefits must be maintained (and employers may require employees to draw from their accrued sick leave benefits). There are exceptions to the compensation continuation requirement, however. This does not apply to any period of time an employee is unable to work for reasons other than protection from possible COVID-19 exposure (including if an employee is sick with COVID-19 and unable to work), or if an employer can demonstrate that the employee’s exposure was not work related. Employers must inform employees about available benefits (i.e., sick leave, workers’ compensation, etc.) at the time of exclusion.
- Return to Work: The ETS regulations (as updated by Executive Order and CDPH guidance) prescribe criteria for returning affected employees to work. For employees with COVID-19, those individuals can return to work once fever-free for 24 hours, symptoms have improved, and at least 10 days since onset of symptoms or, if asymptomatic, 10 days since first positive test. For close contacts of a COVID-19 positive case, those employees who are asymptomatic can return to work after 10 days from last exposure. The ETS regulations make clear that employers cannot require a negative test for an employee to return to work.
On Jan. 8, Cal/OSHA issued updated COVID-19 and ETS Frequently Asked Questions. Among other things, these updated FAQs provide the following guidance:
- COVID-19 Testing: The ETS regulations require employers to “offer” or “provide” testing to employees in certain circumstances, including when an employee has close contact with a COVID-19 case in the workplace and in the case of an outbreak. Based on these different terms used in the ETS regulations, it was unclear if there were different obligations based on different circumstances. In the updated FAQs, Cal/OSHA has confirmed that the terms “offer” and “provide” are synonymous. This means that employers need only “offer” testing where it is mentioned in the ETS regulations. If employees refuse to submit to testing, the employer has still complied with the testing mandate. There is nothing that indicates that those refusing to test must be excluded from the worksite. In addition, it clarifies that employers are not required to provide the testing themselves, and may direct employees to free public testing sites, and must just ensure that it is without cost to the employee and on paid time.
- Determination of “Workplace” in an Outbreak: The updated FAQs clarify that, when determining whether an outbreak has occurred, a single building can include more than one “exposed workplace” and an area passed through while wearing a mask is not included.
- Asymptomatic Exposed Employees: The updated FAQs embrace DPEH guidance permitting health care, emergency response and social services workers to return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage.
The updated FAQs also address the scope of the exception for employers with existing ATD plans and separately confirm that an employee who is unable to work due to COVID-19 symptoms is not eligible for exclusion pay and benefits under the ETS regulations, but may be eligible for workers’ compensation or SDI benefits. Additionally, for those wanting to secure a waiver from Cal/OSHA from the otherwise applicable return-to-work requirements for employees exposed to or with COVID-19, the updated FAQs provide some insight into the process to follow and relevant information to provide.
Other COVID-19 Workplace Rules
COVID-19 Quarantine Requirements for Employees Updated by Governor’s Order
In December, Gov. Gavin Newsom and, later, the CDPH, issued additional guidance, following updated CDC guidance, on quarantine periods for employees exposed to COVID-19. Under the guidelines, employees exposed to COVID-19 (defined as close contact within 6 feet of an infected person for a cumulative 15 minutes or more over 24 hours), who remain asymptomatic, can end their quarantine and return to work after the 10th day from the date of the last exposure with or without testing. Additionally, health care, emergency response and social services workers can return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage. All exposed asymptomatic employees who return from quarantine after less than 14 days must wear a face covering at all times and maintain a distance of at least 6 feet from others, and for those returning after 7 days must wear a surgical face mask at all times and self-monitor for symptoms, through day 14.
Employer Obligation to Report COVID-19 Exposure in the Workplace – AB 685 Imminent hazard to employees: exposure: notification: serious violations
Employers have new notice and recordkeeping requirements when a COVID-19 infection is confirmed in the workplace. Employers who receive “notice of a potential exposure” from a “qualified individual” are required to provide various notifications to its employees and local health agencies. Most significantly, employers must provide notice within 1 business day to all employees and contractors who were in the same workplace during the infectious period of the COVID-19 case. This notice is broader than the Cal/OSHA required notice because it requires it to everyone in the same workplace, not only close contacts. The law grants the California Division of Occupational Safety and Health the new authority to shut down workplaces if employees are deemed to face an “imminent” hazard of COVID-19 infection. The workplace reporting requirements laid out expire Jan. 1, 2023.
Workers’ Compensation Presumption for COVID-19 Contracted in the Workplace – SB 1159 Workers’ compensation: COVID-19: critical workers
SB 1159, which took immediate effect in September, extended the COVID-19 presumptions that were contained in the now-expired Executive Order N-62-20 issued in May. The law created a rebuttable presumption that certain employees who have contracted COVID-19 did so in the workplace, for purposes of receiving workers’ compensation benefits. This presumption extends to: employees who reported to work between March 19 and July 5, and tested positive within 14 days of reporting to work; first responders and health care workers diagnosed with COVID-19 after working on or after July 6 and employees diagnosed with COVID-19 after their workplace had an “outbreak” on or after July 6.
AB 2537 Personal protective equipment: health care employees
Responding to the stockpile shortage and significantly high risk of exposure to COVID-19 faced by frontline workers and health care professionals, AB 2537 requires general acute care hospitals to provide personal protective equipment to employees administering direct patient care or whose services directly support such care. Starting April 1, 2021 (and subject to limited exceptions), these employers are required to maintain a stockpile of items including, but not limited to, N95 masks, surgical masks, isolation gowns, eye protection and shoe coverings, in an amount equal to three months of normal consumption.
These employers must implement written procedures that determine the quantity and types of PPE used in their normal consumption. They must also be prepared to report these reports as well as their highest 7-day average of consumption of PPE in the 2019 calendar year upon request to the Division of Occupational Safety and Health. Also, upon request, employers must provide the content of their stockpile inventory to the Division of Occupational Safety and Health. Those who fail to maintain the requisite stockpile will be penalized up to $25,000 for each violation, except in certain circumstances.