COVID-19

As of May 6, 2022 - Cal-OSHA has released a new ETS. More information can be found here. 

March 29, 2022

It’s been a long road, but pandemic restrictions have been lessened piece by piece in 2022. Mandatory masking roles for indoor public places in California were lifted effective March 1st. The Occupational Safety and Health Administration’s (OSHA) attempts to force large employers to enact “vaccine or testing” rules were put to rest due to litigation. Most attempts at vaccine mandates stalled or never took off the ground. And in California, an endemic approach to COVID-19 has shifted priorities in dealing with the virus from personal and business restrictions to a more comprehensive tactic.    

Since we are constantly bombarded with new updates, guidelines, and rules from the Centers for Disease Control and Prevention (CDC), the California Department of Public Health (CDPH), OSHA, and the California Division of Occupational Safety and Health (CAL/OSHA), we decided it would be helpful to provide you with an FAQ of what employers should be doing in California.  

Where are we with masks in the workplace?   

With the indoor mask mandate lifted in public places across the state, and with the CDC and CDPH relaxing their masking guidance, CAL/OSHA revised their mask rules to match. This means employees are not required to wear masks, irrespective of their vaccination status, should they choose not to. However, employers must allow individuals to wear masks if they choose to, unless doing so would create a safety hazard.1 Additionally, employers must continue to make masks available for employee use upon request.   

Employees in healthcare settings, and all those who are subject to the Aerosol Transmissible Diseases standards, and certain other industries, have different mask rules. Please refer to the CAL/OSHA for further information.

Can employers require masks in the workplace?   

Yes, employers may choose to enact policy with stricter safety rules above CAL/OSHA’s. Should employers choose to enforce mask rules in the workplace, they should keep in mind that reasonable accommodations may be requested due to disability or religious reasons. The standard interactive process should be applied to assess possible alternatives for those employees. 

Are employees required to be vaccinated?   

No, state and federal rules do not require employees to be vaccinated against COVID-19 – outside of certain healthcare settings. Employers may choose to enact policies requiring vaccination for employees working on site, keeping in mind that concessions may be required for disability or religious accommodation requests, should they arise. 

Do employers still have to track vaccination status? Do mask rules tie-in to vaccinations?   

No, employers are not required to document vaccination status of employees with respect to the lifting of masking rules. However, those employers that choose not to document vaccination status must treat all staff as unvaccinated. Treating all employees as unvaccinated can cause complications like lengthier post-exposure isolation times, additional participants in any exposed groups, and additional provisions to be followed in an outbreak setting.    In case of workplace exposure, documenting vaccination status can make contact tracing and notification an easier process. It can also help to shorten the isolation times of exposed employees by being able to treat them as vaccinated. Depending on the employer, it might be recommended to continue or begin to document vaccination status for this reason.  

What does “fully-vaccinated” mean, and when is vaccination status relevant?   

As booster shots have emerged and timelines for effectiveness of vaccines have been changed due to data insights, a fully vaccinated individual is harder to define.    For those who received a single dose, viral vector vaccine like Johnson & Johnson: The “fully-vaccinated” period begins 2 weeks after receiving the last dose and ends after 2 months.   Two-dose mRNA vaccine recipients: The “fully-vaccinated” period begins 2 weeks after the 2nd dose or booster dose and lasts 5 months. A booster is required after the 2nd dose in the vaccine series at or after the 5-month mark to remain fully vaccinated.    Vaccination status is relevant when considering isolation and quarantine guidelines set by the CDC and CDPH. Those who are fully vaccinated generally are not required to isolate as long as those who are not. 

What is California’s Supplemental Sick Leave?  

California’s COVID-19 Supplemental Paid Sick Leave (SPSL) was reanimated in February of 2022 to give employees protected time off for COVID-related reasons. Employers with 26 or more employees are to provide up to 80 hours of supplemental sick leave when an employee or a family member they care for contracts or exhibits symptoms of COVID-19, when they attend vaccination appointments, or when they are recovering from the side effects of vaccines.5 This sick leave is in addition to the state mandated Paid Sick Leave.    

Full-time employees are entitled to 40 hours of SPSL for the reasons stated above. When/if the initial 40 hours of SPSL are exhausted, employees are entitled to an additional 40 hours off if they or their covered family member tests positive for COVID-19. SPSL is to be provided to employees upon written or oral request. The pay rate of SPSL is the same as PSL – the regular rate of pay for the affected workweek, or the weighted average of earnings from the previous 90 days (not including overtime premium).   

How do I account for SPSL entitlements for part-time employees who do not have set schedules?   

The DLSE allows for two acceptable methods to account for SPSL employees in this scenario.   

*Employees who have worked for the employer for more than 7 days are allowed to take seven times the average number of hours the employee worked each day for the employer in the six months preceding the date the employee took SPSL. If the employee has worked less than 6 months, then the calculation would reflect the entire period the employee has worked.

*Employees who have worked for the employer for 7 or less days is entitled to SPSL equal to the number of hours they worked in the preceding week. 

What is Exclusion Pay?   

Exclusion Pay was enacted under the CAL/OSHA Emergency Temporary Standards (ETS). Exclusion Pay is a requirement for employers to continue paying an employee’s regular wages if a workplace exposure to COVID-19 has triggered a mandatory exclusion of the employee from the workplace.    

A workplace exposure occurs when an employee has been in close contact with a COVID case during the “high risk exposure period.” To qualify as a workplace exposure, the exposed employee must have spent a cumulative 15 minutes or more within 6 feet of the positive COVID case during the 2 days prior to symptom onset or positive test sample was collected.    

Exclusion Pay does not apply to employees assigned to telework at the time of exposure, those who work alone, or those employees covered by the Aerosol Transmissible Diseases regulation (Cal. Code Regs., tit. 8, § 5199).

Who pays for COVID-19 testing?   

In short, any time an employer requires an employee to test for COVID-19, the employer must pay for it. This includes any instance where an employer needs to provide testing to employees as a provision of the ETS for workplace exposures or as a condition for returning to work after a COVID case.    

Time spent testing, as well as any costs associated with testing, are to be covered by the employer in these circumstances. Employees should record the time they spend traveling to the testing facility, the time spent getting tested, and time travelled home as hours worked.    

The following scenarios are to be provided testing at no cost and during paid time:   

• To employees with COVID-19 symptoms who are not fully vaccinated;   
• To employees who had a workplace exposure to COVID-19, with an exception for symptom-free employees who recently recovered from COVID-19;   
• During an outbreak, to all employees within the exposed group, at least once or twice per week depending on the severity of the outbreak. Exceptions apply for employees who were not at work during the relevant period and symptom free employees who recently recovered from COVID-19; and   
• When following the CDPH Isolation and Quarantine Guidance to keep employees working or return them sooner, if tested. 

What is a workplace “outbreak” of COVID-19?   

There are two different types of outbreaks defined by CAL/OSHA:    

• A standard “Outbreak” occurs when there are three (3) or more cases among employees of an exposed group within a 14-day period.    
• A “Major Outbreak” is when twenty (20) or more cases occur in an exposed group within a 30-day period.    

An exposed group is any employee who works at the same work location, work area, or common area, where an employee with COVID-19 was present during the high-risk period, as defined above. In either outbreak setting, employers are required to perform some tasks as defined by the CAL/OSHA ETS: 

1. Make testing immediately available for all employees in the exposed group.   For a Major Outbreak – testing must be made available at least twice a week until no new cases are detected in a 14-day period.   
2. Review COVID safety practices and policies and make any necessary changes to ventilation systems.    
3. Require the exposed group, regardless of vaccination status, to wear masks when indoors or when outdoors within 6 feet of others, unless an exception applies. 

For Major Outbreaks, employers must perform the preceding steps as well as:   

• Offer respirators to all employees.   
• Provide social distancing from the exposed group to other employees, where feasible.   
• Determine the need for a respiratory protection program.   Consider halting part or all of operations until viral control is achieved. 

Does my Company still need to have a Covid-19 Prevention Program (CPP)?   

Yes, under the CAL/OSHA ETS, a CPP is still required for employers. Many of the terms and policies we have used in this FAQ are required to be in a valid CPP. CAL/OSHA provides a model CPP for employers to on their website at https://www.dir.ca.gov/dosh/coronavirus/ETS.html.     

When does the CAL/OSHA ETS expire?   

The current ETS was readopted for the second time in 2022 for the period between January 14 and April 14. Normally, a CAL/OSHA ETS can only be readopted twice and cannot be extended further. However, Governor Newsom of California issued an Executive Order to extend the expiration to May 5. Beyond that, it is possible that the ETS may be extended further through Executive Order, or a new ETS may be adopted in early May.