New labor & employment laws impacting California public agencies in 2021
By Alison D. Alpert and Laura J. Fowler, Best Best & Krieger LLP
COVID-19 has changed the world. It’s led to shutdowns and stimulus packages. It has upended workplaces and delivered an onslaught of novel challenges for public employers. California’s pandemic response dominated the greater part of 2020’s legislative session.
The laws passed, coupled with mandates and regulations handed down by Gov. Gavin Newsom and state regulatory agencies, have created a web of new workplace rules for public employers to navigate.
In this two-part annual Labor & Employment law roundup, Best Best & Krieger LLP provides California public employers with up-to-date information on the State’s latest COVID-19 regulations and legislation impacting their workplaces.
Cal/OSHA Issues Emergency COVID-19 Prevention Regulations
California’s Division of Occupational Safety and Health approved COVID-19 Prevention Emergency
Regulations (or Emergency Temporary Standards regulations) for employees not covered by the division’s Aerosol Transmissible Diseases standard. The state’s ATD standard commonly applies to workers in health care facilities as well as paramedic and emergency response services. The ETS regulations went into effect Nov. 30 and remain in place for at least 180 days, at which time they may be extended.
The ETS regulations require employers to implement a written COVID-19 Prevention Program to address:
- A system for communicating with employees about COVID-19
- Identifying and addressing COVID-19 hazards
- Investigating and responding to COVID-19 cases in the workplace
- COVID-19 training and instruction
- Physical distancing, face coverings and personal protective equipment
- A system for recordkeeping, confidentiality measures, record access and reporting
- Exclusion of COVID-19 cases and those exposed to COVID-19 in the workplace
- Return to work criteria
The CPP must be made available to employees, authorized representatives and Cal/OSHA upon request.
Cal/OSHA’s ETS regulations also provide employers with extensive guidance regarding:
- Notice Provisions: Public employers must provide notice of potential exposures to all employees and contractors with close contact to a COVID-19 case, meaning those who were within six feet of a COVID-19 case for at least a cumulative total of 15 minutes in a 24-hour period within the “high-risk exposure period.” A copy of this notice must be provided to any employee union representatives. Employers are also required to provide information on how employees can report symptoms, exposures and workplace hazards. Also, employers must provide information on how employees can obtain testing and available employer-provided benefits. Additional COVID-19 notice requirements are detailed in Assembly Bill 685.
- Physical Distancing, Face Coverings and More: Where possible, employers are required to ensure that all employees maintain at least six feet of distance from others. In regard to face coverings, employers must either provide employees with face coverings or reimburse employees for the costs of securing their own masks, face shields and the like. Face coverings are to be worn indoors and in outdoor settings when employees are within six feet of one another.
- COVID-19 Training: Public employers must provide employees with training on the spread and symptoms of COVID-19 and the importance of physical distancing, face coverings and handwashing. This includes informing employees on the importance of staying home and getting tested if they have COVID-19 symptoms.
- Outbreaks: Cal/OSHA, in line with other state guidance, defines an outbreak as three or more COVID-19 cases in an exposed workplace within a 14-day period. Per ETS regulations, all employees in a workplace where an outbreak has occurred must be offered testing for COVID-19 immediately and again one week later. Tests should be administered free of charge and on employer paid time. The ETS regulations also lay out measures for major outbreaks, classified as 20 or more cases confirmed in a workplace within a 30-day period, which require on-going testing (for employees who continue to work in the workplace) twice a week until no new COVID-19 cases arise in a 14-day timeframe.
- Exclusion from the Workplace: Employees who are positive for COVID-19 and those who had close contact with a positive COVID-19 case must be excluded from the workplace until the State’s established return to work criteria is met. Quarantine lengths are detailed below.
- Paid Time Off: If employees are excluded from the workplace due to a COVID-19 exposure, their compensation, seniority and benefits cannot be impacted. Employers must inform employees about available benefits (i.e., sick leave, workers’ compensation, etc.). These requirements do not apply to any period of time an employee is unable to work for reasons other than a possible COVID-19 exposure (including if an employee is sick with COVID-19), or if an employer can demonstrate the employee’s exposure did not happen in the workplace.
- Return to Work: The ETS regulations (updated by Executive Order N-84-20 and California Department of Public Health guidance) state that employees exposed to COVID-19 through close contact with a positive case can end quarantine and return to work after day 10 from the date of last exposure if they remain asymptomatic. Health care, emergency response and social services workers can return to work after seven days with a negative COVID-19 test collected after day five when there is a critical staffing shortage and other protocols are followed. Employers should also always check their local county health order for any stricter requirements. Employees with COVID-19 who had symptoms can return to work once they are fever-free for 24 hours (without use of fever-reducing medications), their symptoms have improved, and at least 10 days have passed since the onset of their symptoms. Employees with COVID-19 who were asymptomatic must remain home for 10 days since the date of specimen collection of their first positive test. Except for certain employees subject to a seven-day quarantine, employers cannot require a negative test for an employee to return to work.
On Jan. 8, Cal/OSHA issued ETS Frequently Asked Questions to clarify its earlier guidance:
- COVID-19 Testing: Cal/OSHA confirmed that employers must offer COVID-19 testing to employees who have had close contact with a COVID-19 case and to all employees in the workplace in the case of an outbreak. To comply, public employers may direct employees to free public testing sites. Tests must be without cost to employees and on administered or employer-paid time. While an employee may refuse to submit to testing, a public employer has still complied with Cal/OSHA’s testing mandate by offering the test. Cal/OSHA did not indicate that those who refuse to get tested for COVID-19 need to be excluded from the workplace.
Alison D. Alpert, a partner in Best Best & Krieger LLP’s Labor & Employment practice group, represents private and public employers in a broad range of employment litigation including harassment, wrongful termination, retaliation and discrimination matters. She can be reached at firstname.lastname@example.org.
Laura J. Fowler is an attorney in Best Best & Krieger LLP’s Labor & Employment practice group who represents public and private employers in a variety of court and administrative proceedings including wrongful termination, unpaid wages, discrimination and more. Contact her at email@example.com.