The State of California and many counties across the state are rescinding their mask mandates this week. However, this does not mean that employers can return to “normal.” The Cal/OSHA Emergency Temporary Standards (“ETS”) and California Department of Public Health guidance continues to apply and employers should continue to be vigilant regarding COVID-19 precautions in the workplace.
As for masking, the ETS still requires that employees who are not fully vaccinated wear masks while working indoors, subject to some limited exceptions. As a refresher, under the ETS fully vaccinated means the employer has documented that two weeks have elapsed since the employee has received either both doses of a two dose vaccine (e.g. Pfizer or Moderna) or has received the dose of a single dose vaccine (e.g. Johnson & Johnson). This permissible documentation includes the employee’s vaccine card, a copy or picture of the vaccine card, or other documentation from their healthcare provider indicating their vaccination status. Without this documentation, the employee is considered unvaccinated for purposes of the ETS. It is also important to note that a booster dose is not required for an employee to be considered fully vaccinated under the ETS.
In addition to masking, employers should still be cognizant of current additional requirements. Below is a list of several of the requirements that continue to apply:
Excluding Employees After An Exposure to COVID-19: As discussed in our previous alert, the California Department of Public Health Quarantine and Isolation Guidance now controls when an employee must be sent home after a COVID-19 exposure and when they can return to work. Under the this guidance an employee’s vaccination status and whether they have received the booster dose when eligible makes a big difference in how long they are excluded from the workplace, if at all. Accordingly, it is important for employers to have detailed records of the vaccination status and vaccination dates of their employees so they can take advantage of these exclusion requirements.
Exclusion Pay: Employers are required to maintain an employee’s earnings when they are sent home after a workplace exposure, unless that employee can work remotely or is receiving worker’s compensation or disability payments. Importantly, there is a rebuttal presumption that an employee was exposed at work, so unless the employer has evidence to the contrary, exclusion pay will likely be required. Employers should also note that they cannot require employees to exhaust their new supplemental sick leave entitlement before receiving exclusion pay.
Supplemental Sick Leave: As discussed in our last alert, beginning on February 19 employers must begin offering up to 80 hours of supplemental sick leave to employees retroactive to January 1. There are many nuances to this leave entitlement and we encourage you to review our previous alert if you are uncertain of the requirements.
Notice of COVID-19 In The Workplace: Employers must provide notice to all employees at the workplace when someone with COVID-19 was on the premises during the high risk exposure period. The “high risk exposure period” for employees who develop COVID-19 symptoms is two days before they first developed symptoms until all of the following are true: it has been 10 days since symptoms first appeared; 24 hours have passed with no fever, without the use of fever-reducing medications; and symptoms have improved. If the employee never developed COVID-19 symptoms then the high risk exposure period runs from two days before until 10 days after their first positive test for COVID-19 was collected.
This means that everyone who was at the same worksite during that period must receive notice that they were potentially exposed to COVID-19 within one business day of the employer learning of the positive test. The “worksite” means the building, store, facility, agricultural field, or other location where a COVID-19 case was present during the high-risk exposure period. It does not apply to buildings, floors, or other locations of the employer that a COVID-19 case did not enter, locations where the worker worked by themselves without exposure to other employees, or to a worker's personal residence or alternative work location chosen by the worker when working remotely.
COVID-19 Testing: Testing must still be provided to all employees who had a close contact in the workplace at the employer’s expense. A close contact means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the “high-risk exposure period.” Testing must also be provided to all employees with COVID-19 symptoms who are not fully vaccinated at the employer’s expense. This testing requirement for unvaccinated symptomatic employees applies regardless of whether the employee was exposed to COVID-19 at work.
Written COVID-19 Prevention Plan: Employers must continue to maintain a written prevention plan with all the necessary information as outlined in the ETS.
COVID-19 Training: Employers must continue to train employees on COVID-19 prevention and the other topics outlined in the ETS.
While masks requirements have relaxed, there is still plenty to keep track of. Employers should continue to stay on top of the other requirements to ensure compliance.
