Here is installment #22 of our ongoing series of COVID-related posts of interest to California employers.

CAL-OSHA ISSUES REGULATIONS REGARDING EMPLOYER SAFETY REQUIREMENTS APPLICABLE TO MOST EMPLOYERS

For employers not subject to specific aerosol transmissible disease safety standards (such as medical offices, hospitals and other healthcare settings), Cal-OSHA has issued new safety regulations that impose specific requirements for most general industry employers.  As emergency regulations, these are effective immediately.  Violation of Cal-OSHA safety standards may result in inspections, fines, and in some cases orders to shut down. So, it’s important for employers to implement immediate compliance measures.

In summary, the new regulations require employers to do the following

  • Develop a written “COVID-19 Prevention Program.”  The contents of the program are detailed in the regulations linked below. The agency has developed a model program, also linked below.
  • Provide effective training and guidance to employees regarding the spread of COVID-19; how to prevent infection; as well as the federal, state and local benefits employees may obtain related to COVID-19 illnesses
  • Implement and maintain accurate COVID-19 record keeping
  • Comply with testing and reporting requirements imposed by law

The following resources are available from Cal-OSHA (or will be):

  • New regulations: Here
  • FAQs here
  • Fact sheet here
  • OSHA-created training webinars (to be posted here)
  • Model COVID-prevention program here

VACCINES ARE COMING.WILL EMPLOYERS BE READY? 

As you have read in the news, COVID-19 vaccines are in the final stages of approval. Employers will face a number of employment law-related issues when these vaccines roll out.  Some of these issues may be addressed legislatively.  However, employers may have to confront a number of issues that are not handled by lawmakers. These could include:

  • Time off for vaccinations?  Paid or unpaid?  What leave laws may apply?
  • Legal implications of mandatory vaccinations or voluntary vaccinations.  For example, employees’ objections to mandatory vaccinations and attendant issues (religious, disability, pregnancy, medical privacy).  Note that mandatory vaccination policies are not new.  The EEOC addressed them in previous guidance here. herehere. and here.  But all that was pre-COVID, and pre-COVID vaccine. There may be new guidance, and new laws to deal with.
  • Bullying / harassment / peer pressure, and other peer-related issues attendant to vaccinations.
  • Providing incentives for vaccinations and how they must be accounted for (regular rate of pay? discrimination issues?)
  • What, if any, liabilities will employers face if employees experience complications from a mandatory vaccine?
  • Dealing with fraudulent vaccine paperwork and other employee misconduct

These are just some of the employment law challenges that may arise.  Employers should consult with counsel about these issues in advance of the vaccine rollout.

COVID SUPPLEMENTAL PAID SICK LEAVE AND SPECIAL COVID FAMILY LEAVE MAY BE ENDING?

Unless extended by an act of Congress and signed by the president, the special 80 hours of COVID-related paid sick leave under the federal Families First Coronavirus Response Act will end as of December 31, 2020.  The amendments to the federal Family and Medical Leave Act will also expire as of that date. Of course, once inaugurated, President Biden could sign into law an extension to the FFCRA sick leave provision, or a new paid sick leave law.  But that wouldn’t happen until after the January 20 inauguration and after such a law passes through Congress.  So, there may be a gap.  Alternatively, an extension to the law could be enacted as part of a “stimulus” in the waning hours of the “lame duck” Congress and administration, which could close that gap.  Stay tuned.

But what of California’s COVID-19 Supplemental Sick Leave?  California’s Supplemental COVID sick leave, AB 1867, now codified at Labor Code section 248 and 248.1 (article here), will also expire on December 31, 2020, unless (1) federal law is extended, or (2) the Legislature passes an extension as an “urgency” measure.  See Labor Code section 248(e); 248.1(f) (here).

And the local ordinances? The local Supplemental Sick Leave ordinances (San Francisco, LA, LA County, San Jose, etc.) originally were set to expire December 31 as well.  But employers must  check each locality / county’s website to make sure, because those counties could independently extend them, or they could have amended their ordinances already.

GENERALLY

Along the way, we have tried to collect and publish resources for employers in this series of posts.  By now, many of them are stale because of governments’ changing guidance and rules. Our latest previous update with to other resources (such as federal and county sites) is here. From those linked pages to federal or other websites, you can find updated information.

Here’s a quick set of additional updates:

Latest “Limited Stay at Home Order” effective November 21, 2020 (here)

California Dept. of Public Health COVID Page and Links here.

“Blueprint for a Safer Economy” with Links to Status of Counties’ Re-Opening Efforts here.

Generally, keep up with the Labor Workforce Development Agency’s COVID resources for employers here.  There are links on that page.

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Stay safe and informed.

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