More On Cal/OSHA’s Proposed Amendments to its COVID-19 ETS

By Fred Walter

In our May 11th blog article, we covered some of the most important changes to Cal/OSHA’s COVID-19 emergency temporary standard that the Division has proposed for approval at the next Cal/OSHA Standards Board meeting later this week on May 20, 2021. Here we offer some additional insights into the amendments and their likely impact on California employers.

Face coverings: The new language mentions several options for face coverings but does not mention a popular one — gaiters. Responding to a question we presented to the Division, Cal/OSHA confirmed that gaiters can be an acceptable face covering if they are doubled over to create two layers of protection.

Written notice of COVID-19 cases: Verbal notice can be substituted where the employer has reason to know that an employee will not get the written notice or has such “limited literacy” that a written notice will be ineffective.

Testing: The requirement that employers “offer” testing, which was ambiguous from Day One, has been changed to: “Make … testing available…,” an almost completely verbatim copy of a suggestion made in written comments by CMC’s California Employers COVID-19 Prevention Coalition during the Advisory Committee process. You’re welcome Cal/OSHA.

The requirements that the test be free to the employee and conducted on company time remain. In a bit of foresight, the new rule will provide an exception for employees who are fully vaccinated before a close contact and remain symptom-free.

Training: This and other sections of the new regulation signal a shift to what might be called “mandatory-voluntary” use of the N95. Continue reading

Vaccinated Workers Are Not Required to Quarantine Under Cal/OSHA’s COVID-19 ETS, But Masks and Distancing Are Still Required

By Conn Maciel Carey’s COVID-19 Task Force

The California Department of Public Health (CDPH) issued new guidance yesterday – COVID-19 Public Health Recommendations for Fully Vaccinated People – that affects some aspects of Cal/OSHA’s COVID-19 ETS.  For purposes of this discussion, people are considered fully vaccinated for COVID-19 either two weeks or more after they receive the second dose in a two-dose series (Pfizer-BioNTech or Moderna), or two weeks of more after they received a single-dose vaccine (Johnson and Johnson/Janssen).

CDPH Vaccination GuidanceRelevant to application of Cal/OSHA’s COVID-19 ETS requirements to fully vaccinated workers, the new CDPH guidance provides that in a workplace setting, fully vaccinated workers are no longer required to quarantine following a known exposure at work, so long as the exposed vaccinated worker remains asymptomatic.  But that is as far as the guidance goes in providing relief under Cal/OSHA’s COVID-19 ETS for vaccinated workers.

Specifically, employers must still follow all other requirements of the ETS with respect to fully vaccinated workers.  Regardless of vaccination status, an exposed fully vaccinated worker or a fully vaccinated worker who is part of a group of workers covered by an outbreak determination must still Continue reading

Cal/OSHA’s COVID-19 Emergency Temporary Standard and Vaccinated Workers

By Conn Maciel Carey’s COVID-19 Task Force

As the number of vaccinated workers continues to rise, and despite guidance from the CDC lifting certain restrictions against fully vaccinated individuals, Cal/OSHA’s current official position, as reflected in its COVID-19 ETS FAQs, is that “[f]or now, all prevention measures must continue to be implemented” for vaccinated persons.  The same set of FAQs, however, also informs us that “[t]he impact of vaccines will likely be addressed in a future revision to the ETS.”  See Cal/OSHA COVID-19 ETS FAQs “Vaccines” FAQ #1.

Following the February 11, 12, and 16 Cal/OSHA COVID-19 ETS Advisory Committee meetings, in which CMC participated on behalf of our California Employers COVID-19 Prevention Coalition, Deputy Chief of Cal/OSHA Research and Standards shared an updated version of a “Discussion Draft” of the ETS that reflects changes under consideration by the agency.  The issue of how vaccinated employees should be treated under the ETS was a major topic of discussion during the Advisory Committee meetings, and potential changes to the ETS around that are reflected in notes in the Discussion Draft.

While the notes are not necessarily proposed amended regulatory text (rather, they largely incorporate committee members’ feedback ), reading the tea leaves from the Advisory Committee meetings, it is clear that Cal/OSHA Continue reading

California Governor Deploys COVID-19 “Strike Force” Over Holiday Weekend to Enforce Workplace Restrictions

By Conn Maciel Carey’s COVID-19 Task Force 

California increased its efforts to combat COVID-19 over the July 4th holiday weekend by deploying multi-agency strike teams to visit or otherwise make contact with businesses to evaluate and enforce compliance with and/or educate them about the State’s numerous COVID-19 orders, directives, and guidance.

The “Strike Force” includes representatives from at least ten different state agencies.  Approximately 100 agents are from the Alcohol Beverage Control agency and the rest from the Division of Occupational Safety and Health (Cal/OSHA), the California Highway Patrol, the Board of Barbering & Cosmetology, Consumer Affairs, Food and Agriculture, Labor Commissioner’s Office, the Governor’s Office of Business and Economic Development, and other state licensing entities.

Ahead of the July 4th holiday, Governor Newsom ordered bars, indoor restaurants, movie theaters and more to close in a number of counties on a state watch list.  The state monitoring list is ever changing and represents counties with a need for more support and/or enforcement.

Over the holiday, hundreds of state inspectors fanned out across California to enforce health orders related to Coronavirus.

The State’s actions are likely authorized by Executive Order N-33-20, which generally directs all residents immediately to heed current State public health directives to stay home, Calif EOexcept as needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors as the State Public Health Officer “may designate” as critical to protect health and well-being of all Californians.  As for the crackdown, the actions taken are likely be based on recent Continue reading

COVID-19 Pandemic FAQs – What Do Stay-At-Home / Shelter-In-Place Orders Mean For Employers?

By Conn Maciel Carey’s COVID-19 Task Force

Governors across the nation have signed various “stay-at-home” or “shelter-in-place” orders in an increased effort to slow the spread of COVID-19.  Many cities and counties have also signed such orders as well, including in states with no statewide order in place. COVID These orders vary in their scope in the restricted activities and affected industries but they typically address: (1) the continued operations of critical businesses; (2) restrictions on non-essential businesses; (3) the activities individuals may continue to perform; and (4) other limitations on gatherings.

Spotlight: California

On March 19, 2020, California Governor Gavin Newsom signed an emergency order requiring all individuals living in California “stay home or at their places of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.”  Californians may continue working for such critical infrastructure sectors and any other industries the governor designates as critical.  The emergency order cites to federal guidance on the federal critical infrastructure sectors, which identifies the 16 critical infrastructure sectors including critical manufacturing, food and agriculture, transportation, energy, healthcare and emergency services.

The emergency order references a March 19, 2020 Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response issued by the U.S. Department of Homeland Security, which includes more detailed descriptions of categories of workers falling under each of the identified critical infrastructure sectors.  Some of the other state orders also rely on this federal guidance on “essential critical infrastructure workers” in defining the critical business that may continue to operate under the orders.

Californians may Continue reading

2020 Legislative Update for California Employers

shutterstock_San Francisco 4847-6656-4719 v12019 has produced a long list of new employment laws on a myriad of topics that will bring significant changes for California employers in 2020.  Workplace safety laws range from a revamped reporting requirement to a new wildfire smoke regulation.  Additional laws affecting employers include a new test for determining independent contractor status, a ban on no rehire agreements and many more.  Though many of these laws will add items to the employer to-do list, employers have at least secured a one-year reprieve for completing mandatory harassment prevention training introduced last year.

Key changes affecting private sector employers are summarized below.  Unless otherwise indicated, these new laws take effect January 1, 2020.

Continue reading

Calif. Employers Are Not Required To Reimburse Restaurant Workers For the Cost of Slip-Resistant Shoes

By Megan Shaked and Andrew J. Sommer

A recent California Court of Appeals decision in Townley v. BJ’s Restaurants, Inc., has further defined the scope of reimbursable business expenses under California Labor Code section 2802, this time in the context of slip-resistant shoes for restaurant workers.

A former server filed an action under the California Labor Code Private Attorneys General Act of 2004 (PAGA), seeking civil penalties on behalf of herself and other “aggrieved employees” for California Labor Code violations, including the failure to reimburse the cost of slip-resistant shoes.  Plaintiff alleged a violation of Labor Code section 2802, which requires an employer to reimburse employees for all necessary expenditures incurred by the employee in direct consequence of the discharge of their duties.

Plaintiff argued that, because the restaurant required employees to wear slip-resistant, black, closed-toes shoes for safety reasons, such shoes should be provided free of cost or employees should be reimbursed for their cost.

The Court of Appeal, persuaded by the reasoning in an unpublished Ninth Circuit Court of Appeals decision, Lemus v. Denny’s, Inc., and guidance from the California’s Division of Labor Standards Enforcement (DLSE), held that section 2802 did not require the restaurant employer to reimburse its employees for the cost of slip-resistant shoes.  Specifically, the Court held that the cost of shoes does not qualify as a “necessary expenditure” under section 2802.

In reaching its decision, the Court Continue reading