Duane Morris LLP – New Year, New Rules: 2022 Brings a Barrage of Changes to California COVID-19 Obligations for Employers

The latest supplemental paid sick leave requirements should be familiar to employers with a few notable differences.

After two tumultuous years reacting to COVID-19 in the workplace, the one constant has been change. In recent months, the state of California has changed course on several workplace requirements, leaving businesses, schools and organizations scrambling to keep up. While the differences from past requirements lie in the details, the landscape is a familiar one: masks, paid sick leave and another iteration of the Cal/OSHA Emergency Temporary Standards (ETS).

California Lifts Statewide Mask Mandate

California imposed a statewide mask mandate on December 15, 2021, initially for 30 days and later extended for another 30 to February 15, 2022. On February 7, 2022, Governor Gavin Newsom announced that the statewide mask mandate would not extend beyond February 15. While businesses will no longer be required to mandate masks, they are permitted to do so if they choose. In recent days, numerous counties announced similar lifting of mask mandates.

This recent announcement does not mean the end of mask requirements going forward. Select workplace environments and industries including hospitals, K-12 schools, nursing homes, mass transit (including airports) and others subject to existing but separate mask mandates must continue to follow those face covering requirements. Additionally, businesses in counties that have not lifted mask mandates, such as Santa Clara County, must continue to require masks. Finally, as discussed more thoroughly below, the Cal/OSHA ETS remain in effect, requiring unvaccinated employees continue to wear masks in the workplace and dictating what constitutes acceptable face coverings.

California Passes New Supplemental Paid Sick Leave Law – Retroactive but More Limited

Previously, California has twice provided for supplemental paid sick leave for COVID-19-related reasons that an employee must exhaust first before they can be required to use their own paid sick leave, PTO and vacation balances. The original legislation provided for paid sick leave through the end of 2020, while a second law extended the requirements through September 30, 2021. After the last supplemental paid sick leave law expired, employers were left wondering what would follow. Employers finally received their answer in the form of a new supplemental paid sick leave law, signed on February 9, 2022, which requires employers with more than 25 employees to provide additional paid sick leave for certain COVID-19-related reasons. The latest supplemental paid sick leave requirements should be familiar to employers with a few notable differences.

Covered Reasons and Length of Leave

The basis for the leave in the new legislation is largely the same as in prior iterations. As before, leave is unavailable for employees who are able to work or telework. The reasons for taking the leave are the same seven reasons relating to COVID-19 symptoms, quarantine, isolation, vaccinations and caring for others for specified COVID-19 reasons. However, the most significant difference between the new law and the old one is the amount of leave available, which depends on the reason for the need for leave:

For employees subject to a quarantine or isolation order issued by the state or local health official; or who have been advised by a healthcare provider to quarantine or isolate due to COVID-19; or who are experiencing symptoms of COVID-19 and seeking a diagnosis; or are caring for a family member who is subject to a quarantine or isolation order; or who have a child in school or day care that is closed or unavailable due to COVID-19-related reasons, up to 40 hours of supplemental paid sick leave is available.
For employees attending an appointment to get a vaccine or booster shot, or who are taking a family member to such an appointment, up to three days (i.e., 24 hours) for each shot is available and includes the time spent actually getting the shot. This limit does not apply if the employee has symptoms of COVID-19.
For employees who have been diagnosed with COVID-19 or are caring for a family member who has been diagnosed with COVID-19 (with proof to the employer), up to 40 hours of paid sick leave is available. However, employees who also qualify for leave based on another reason may not be limited to a total of 40 hours of leave.

For those employees diagnosed with COVID-19 or are caring for a family member diagnosed with COVID-19, the new law allows employers to require proof. Further, employers may require employees diagnosed with COVID-19 to submit to a diagnostic test made available by the employer at no cost on or after the fifth day after an initial positive test and to provide documentation of those results as that may permit a return to work.

Supplemental paid sick leave is paid at an employee’s regular rate of pay. Formulas are available to calculate the regular rate for employees who work irregular or variable-rate schedules and who work on commission.

The leave is retroactive to January 1, 2022, if employees who qualified but did not receive paid leave since the beginning of the year request it verbally or in writing.

As with prior supplemental paid sick leave laws, the full amount of leave is available for full-time employees who regularly work 40 hours per week. Employees who work part time, or who work irregular schedules, are eligible for a prorated amount of leave.

Supplemental paid sick leave is currently available through September 30, 2022.

Revised Cal/OSHA Emergency Temporary Standards Remain In Effect

The new supplemental paid sick leave follows changes to the Cal/OSHA ETS, which took effect January 14, 2022, a day after the Supreme Court of the United States blocked the Emergency Temporary Standards issued by the federal Occupational Safety and Health Administration. The California revised ETS modified existing obligations imposed on California employers of all sizes in response to the ongoing COVID-19 pandemic and ensures that such restrictions will continue for at least another six months.

Background of the Cal/OSHA ETS

First Cal/OSHA ETS: On November 18, 2020, Cal/OSHA issued Emergency Temporary Standards to clarify employer obligations during the COVID-19 pandemic and to prevent outbreaks at workplaces in California. The initial ETS applied to all California employers and employees with limited exceptions. It required employers to create and implement a written, site-specific COVID-19 prevention program and mandated mask-wearing, social distancing, providing face coverings and other personal protective equipment, implementing cleaning and disinfecting procedures, training employees and addressing building ventilation standards and other engineering and administrative controls. It also required that employers take specific actions upon learning of positive cases in the workplace and set forth investigation, notification and testing requirements. See our previous Alert.

Second Cal/OSHA ETS: On June 3, 2021, Cal/OSHA adopted controversial new standards relating to masking and testing of fully vaccinated employees that were withdrawn six days later following public outcry. Two weeks later, on June 17, 2021, the agency voted again and adopted new Emergency Temporary Standards. Those standards updated the initial ETS, continuing indoor and outdoor workplace mandates for the unvaccinated and site-specific COVID-19 prevention programs, discontinuing most physical distancing requirements, modifying training, disinfecting and personal protective equipment protocols and updating requirements for investigating and responding to COVID-19 in the workplace. See our previous Alert.

Third Cal/OSHA ETS: On December 14, 2021, Cal/OSHA issued another iteration of the ETS, effective January 14, 2022, further modifying the COVID-19 standards. This iteration of ETS rolls back some of the changes in the June 2021 ETS and clarifies requirements regarding safety protocols such as testing and face coverings as discussed below.

Continuation of and Modifications of Previous Standards

As with previous iterations of the ETS, the latest ETS from December 2021 require employers to create a written, site-specific COVID-19 prevention program addressing the same detailed topics in the original ETS. Employers must continue to conduct regular training of employees and inspect health hazards, provide notices to employees of workplace exposures within prescribed periods of time, provide N95 respirators to employees upon request and quarantine certain exposed employees. The key changes to the ETS involve face coverings and return-to-work criteria.

More Stringent Face Covering Requirements

The latest ETS reiterate that employers must abide by any applicable state or local mask mandates. As discussed above, most of these have since been lifted. The standards specify that acceptable face coverings are limited to surgical masks, medical procedure masks, respirators worn voluntarily or tightly woven fabric or nonwoven material of at least two layers. Face coverings may not have visible holes or openings and must cover the nose and mouth. Scarves, ski masks, balaclavas, bandanas, turtlenecks, collars, gaiters or face coverings made of a single layer of fabric are not acceptable.

Current Return-to-Work Criteria

Previous ETS provided criteria for returning to work for COVID-19 cases. However, the latest return-to-work criteria have been overridden by California Department of Public Health (CDPH) isolation or quarantine recommendations pursuant to Executive Order N-84-20 issued by Governor Newsom. That executive order provides that employer may follow CDPH designated periods if they are shorter than those recommended by the ETS.

These are the latest return-to-work criteria for employees in California:

Employees who test positive for COVID-19 may return to work as follows:

Asymptomatic employees may take a test on the fifth day after their initial positive test.
- If the test is negative, the employee may return to work, but must wear a well-fitting mask around others and socially distance for the next five days.
- If the employee tests positive or does not take a test at all, the employee must stay out until 10 days have passed since the positive test.
Symptomatic employees may return to work after all of the following are true:
- At least 10 days have passed since symptoms first appeared;
- At least 24 hours have passed with no fever without fever-reducing medication; and
- Other symptoms of COVID-19 are resolving.

Employees who are exposed to a COVID-19 case may return to work as follows:

Those who are boosted or vaccinated but not yet booster eligible:
- May return to work without having to quarantine;
- Should wear a well-fitting mask around others for 10 days, especially in indoor settings; but
- If they test positive or develop symptoms, they must follow the guidance above for those who test positive.
Those are who are unvaccinated or who are vaccinated and booster-eligible but have not yet received their booster dose:
- Must quarantine;
- May return to work
  - After staying home for at least five days after contact with a person who has COVID-19;
  - After testing negative on the fifth day; and
  - After not having symptoms after the fifth day.
- Must wear a well-fitting mask around others for a period of 10 days, especially in indoor settings; but
- If they test positive or develop symptoms, they must follow the guidance above for those who test positive.

Local governments may enact more restrictive return-to-work criteria. Therefore, employers in counties that have passed their own health orders and return-to-work criteria should ensure that both are followed. The more protective standard generally prevails.

Notices to Employees

The current ETS in effect modified notice requirements to require specific notices for close-contact employees, along with safety information about steps to take following a close contact. These ETS also confirm that locations where employees work alone, or employees who work from home, are not in “workplaces” for purposes of these notices, and therefore such employees do not need to receive such notice.

Definition of “Fully Vaccinated”

The latest ETS confirm that an employee is fully vaccinated two weeks after completing primary vaccination with a COVID-19 vaccine that is: (1) approved or authorized for emergency use by the FDA; (2) listed for emergency use by the World Health Organization; or (3) administered as part of a clinical trial. Booster shots are not expressly addressed in the ETS.

Testing of Fully Vaccinated Employees

Through the earlier June 2021 ETS, Cal/OSHA rolled back the obligation for employers to offer weekly or twice-weekly testing during paid work time to fully vaccinated employees who were part of any exposed group during an outbreak. The latest ETS reinstated this requirement, and all employees, regardless of vaccination status, must be offered such testing. Further, under separate guidance, employers must cover the cost of all tests and either provide, pay for or reimburse mileage for transportation to any off-site vaccination.

Rapid Testing Must Be Observed

Finally, the latest ETS permit employers to use rapid testing for employees when testing is required so long as the tests are observed by either the employer or a telehealth provider hired by or contracted with the employer.

Beware of “Enterprise-wide” and “Egregious” Cal/OSHA Violations

Following the Cal/OSHA ETS is particularly important in light of the California Legislature’s January enactment of two new categories of violations in Senate Bill 606: “enterprise-wide” and “egregious,” giving rise to potential penalties.

Egregious Violations

An egregious violation is one in which one or more of the following is true:

The employer intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate a known violation;
Violations resulted in worker fatalities, three or more hospitalizations or a large number of injuries or illnesses;
Violations resulted in persistently high rates of worker injuries or illnesses;
An employer has an extensive history of prior violations;
An employer has intentionally disregarded its health and safety responsibilities;
An employer’s conduct amounts to clear bad faith in the performance of its duties; or
An employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that may be in place.

Employers who have high rates of COVID-19 cases across multiple worksites, or who have previously been in violation of the ETS, may end up in the crosshairs of Cal/OSHA and face an “egregious” violation. Moreover, SB 606 provides for a five-year lookback for enterprise-wide violations.

Enterprise-wide Violations

If an employer has multiple worksites and either of the following is true, there will be a rebuttable presumption that a violation is “enterprise-wide”:

The employer’s written policy or procedure violates Cal/OSHA regulations; or
Cal/OSHA has evidence of a pattern or practice of the same violation committed by the employer at one or more of its worksites.

If an employer fails to rebut the presumption, Cal/OSHA may issue an enterprise-wide citation requiring enterprise-wide abatement, and may issue monetary penalties up to a maximum of $124,709 per violation.

What This Means for Employers

Following a period of relative calm, changes to COVID-19 workplace rules are resurgent. For some employers, depending on industry and local regulations, mask mandates are no longer required as of February 16, 2022. However, all employers with 26 or more employees must once again provide paid sick leave to eligible employees for COVID-19-related reasons, though on a more limited basis than in the past. All employers are subject to Cal/OSHA standards, which continue to evolve as the COVID-19 pandemic slowly transitions to endemic. Employers with employees in California are encouraged to stay abreast of changes and update policies, practices and notifications as needed. Further, employers are encouraged to review policies and practices across work sites to ensure that effective infection control protocols are in place, to avoid outbreaks and to promote consistency.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Lori Ocheltree, Brooke B. Tabshouri, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm’s full disclaimer.

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