In ordinary times, employment law is no walk in the park.
Throw into the mix a sudden global pandemic: fast-moving and serious enough to shut down vast sections of the nation for … who knows how long. Then toss in the erratic course of this highly infectious disease: multiple cycles of flare ups, reopenings, and retrenchments.
Employers – businesses and nonprofits alike – now face a crush of new laws, rules, and guidelines from all levels of government. They touch on many of the usual hot-potato topics: pay and benefits, leave, working conditions, collective bargaining, discrimination, wrongful termination, occupational safety and health, and workers compensation.
But some of the newly enacted requirements and recommendations quickly become irrelevant or obsolete because of the shifting realities on the ground. Even employment-law specialists are tearing their hair out trying to keep up.
The bottom line: This is not a do-it-yourself moment. Get professional help. Keep in touch with your lawyers and accountants on these critical issues that are as dangerous as quicksand.
And that other professional help? It’s probably a good idea to keep them on speed dial, too.
COVID-19 Statutes Affecting Employers
A few months ago, after the California Legislature adjourned in late summer, we discussed two new statutes beefing up employee leave and pay rules in light of the COVID-19 emergency. See Newest CA Employee Leave Laws (October 29, 2020).
Here, we cover two more of those 2020-Session state laws. The first is an important change in the workers compensation rules; it went into effect immediately in mid-September.
The second is a health-and-safety-reporting statute that starts on New Year’s Day 2021. Here is where the new developments are flying at us fast and furious. In August, the lawmakers were acting through the prism of the apparent facts-on-the-ground then. The situation in December is quite different.
The most consequential turn of events, of course, is the approval and rollout of not one but two vaccines – with more on the way. They bring not only great hope but lots of issues and questions. Those same frenzied and slowly balding employment attorneys across the U.S. kept busy in the past several days. They’ve churned out an astonishing volume of blog posts and articles with important insights and – of course – more questions than answers.
Workers Compensation Rules
California Senate Bill (SB) 1159 (2020) adds several sections to the Labor Code to “protect the health and safety of all employees and the public by facilitating the provision of workers’ compensation benefits.” Effective September 17, 2020 (but relating back to events on and after July 6th) they remain in effect through January 1, 2023.
The California Department of Industrial Relations has published a detailed but plain-English explanation of what these changes do and why they were enacted. See Workers’ Compensation Presumption (SB 1159) Frequently Asked Questions.
In a nutshell, the new statutes turn some of the usual workers’ comp rules on their heads to make it easier for certain groups of workers to claim and receive benefits (medical care, disability, etc.) due to workplace COVID-19 exposure and illness. Specifically, there is a “rebuttable presumption” that an employee who contracted the disease while working at a job or office site during a designated period of time is eligible.
Back in May 2020, Governor Gavin Newsom had issued Executive Order N-62-20 (effective through July 6, 2020). It “… covered all California employees who worked at a jobsite outside their home at the direction of their employer between March 19 and July 5, 2020, including first responders, farmworkers, grocery store workers, warehouse workers and others.”
Between that initial stay-at-home order on March 19th and early July, the situation on the ground had eased up with corresponding loosening of who could go out to work. The Legislature responded with SB 1159. Although it applies to fewer categories of workers than Executive Order N-62-20, it keeps in place that COVID-19 presumption and adds two new rebuttable presumptions that a worker’s illness related to the disease is an “occupational injury.”
The two new categories of workers are:
- “First Responders and Health Care Workers” (more particularly listed); and
- “Employees whose employers have five or more employees, and who test positive for COVID-19 during an outbreak at their specific workplace.”
These eligible workers “… who are sick can stay home and be provided workers’ compensation benefits, thereby reducing the spread of the virus to others at work and in the community.”
Potential Exposure Notification
California Assembly Bill (AB) 685 (2020) is titled “COVID-19: imminent hazard to employees: exposure: notification: serious violations.” It, too, was signed into law on September 17, 2020, but the effective date is January 1, 2021. It continues until January 1, 2023 (when other provisions take over.)
Under AB 685, employers must promptly notify workers of potential COVID-19 exposure on notice that any person at the worksite has received a laboratory-confirmed COVID-19 case, medical diagnosis, or isolation order.
More specifically, within a single business day of learning about that potential exposure, the employer has to notify in writing “potentially infected employees about the potential exposure” and also let them know about COVID-19-related benefits and protections as well as the employer’s “disinfection and safety plans.”
There’s more: Within 48 hours of “becoming aware of a COVID-19 outbreak,” the employer must notify local health agencies.
In addition, while the boss is telling the agencies and the “potentially infected” fellow workers about all this, care must be taken not to improperly disclose private medical information or retaliate against any worker, including the “qualifying individual” aka the COVID-19-infected employee, who wants to spread the word far and wide about the danger.
Also, under AB 685, the Legislature gave Cal/OSHA more authority to close down a worksite if that state health-and-safety agency determines there is an “imminent hazard.”
Even lay readers of this blog post are likely sophisticated enough to hear alarm bells about all these ambiguous terms and definitions. Who is a “qualifying individual”? What is an “outbreak”? What is “potential exposure”?
For the record, AB 685 (written during the summer months) defines “outbreak” as “three or more laboratory-confirmed COVID-19 cases among employees who live in different households within a two-week period.” But what’s the meaning of “different households” here? And about those lab tests? Whatever the legislators had in mind several months ago, it still takes forever to get results, and the FDA has just approved the first of what will be many at-home and rapid COVID-19 tests.
Happily – again – the California Department of Industrial Relations (DIR) has posted a useful guide: COVID-19 Infection Prevention Requirements (AB 685): Enhanced Enforcement and Employer Reporting Requirements. It’s updated as of November 13, 2020.
As soon as you open that website page, up pops an adorable chatbot bear dressed in safety helmet and goggles, asking: “Any questions? Talk to me.”
The site appears to be working 24/7 albeit with a disclaimer: “Just to let you know, you’re talking to a bot. These responses aren’t coming from a real person.”
In line with the earlier advice: Call your lawyer. Don’t rely on the cute bear. You’ll see why in the next section.
More COVID-19 Developments
The plot thickens.
The folks at the California Department of Industrial Relations include on the help page for SB 1159, the following: “The new law encourages employers to comply with all local health directives and guidance concerning safely reopening businesses to reduce risk of exposure and mitigate outbreaks in the workplace.”
It goes without saying that employers must have on their radar as well directives and guidelines from other state agencies [see, for instance, the Department of Public Health’s webpage on AB 685] as well as from federal agencies including the CDC and the FDA.
Cal/OSHA Emergency Rules
There’s an important new emergency COVID-19 Order from Cal/OSHA, effective November 30, 2020 through October 2, 2021. The 21-page regulation is intended to minimize the spread of the disease in nearly all California workplaces.
With few exceptions, California employers must either revise their existing policies and procedures or implement a new written COVID-19 Prevention Program (CPP) meeting specific requirements. The agency has posted a Model Plan here.
Among the mandatory elements are:
- Train workers on the CPP
- Identify, evaluate, and correct COVID-19 hazards
- Socially distance 6 feet, if possible; mandate face coverings and controls and PPE to reduce transmission risk
- Institute procedures to investigate and respond to COVID-19 cases
- Test workers exposed to a COVID-19 case; for multiple infections or a major outbreak, implement regular workplace testing
- Exclude from the workplace COVID-19-infected workers as well as those exposed “until they are no longer an infection risk”
- Maintain records and report serious illnesses and multiple cases to Cal/OSHA and local health agencies
Each of these elements “has a laundry list of additional requirements, some of which – like the outbreak reporting requirements – appear to conflict with existing California laws, such as AB 685 and SB 1159.”
See Effective immediately, California employers must comply with emergency COVID-19 regulation (December 2, 2020) Benjamin J. Kim, Esq. et al, Nixon Peabody LLP. See also A Deeper Dive Into The New Cal/OSHA Temporary Emergency Standards For COVID-19 Prevention (December 8, 2020) Shauna Correia, Esq., Weintraub Tobin.
On December 1, 2020, Cal/OSHA published a “much-anticipated FAQs … to clarify the regulation and provide practice guidance to employers for compliance….” The agency adds it will continue to expand the FAQs “on an ongoing basis to assist stakeholders in understanding the regulation” and will “hold a stakeholder meeting this month to further explain the regulation and answer questions.”
Click on the Frequently Asked Questions and the cute little chatbot bear appears – again with the same message: “Any questions? Talk to me.”
Same advice, but even more so in light of this problematic regulation that conflicts with other rules. Speed-dial human legal counsel.
Governor’s Executive Order
On December 16, 2020, Governor Gavin Newsom issued Executive Order N-84-20.
At the time Cal/OSHA’s temporary regulation was being drafted, the Centers for Disease Control and Prevention had certain guidelines in place on when workers exposed to COVID-19 but who are asymptomatic may discontinue quarantine. Since then, the CDC shortened some of these time frames, and the California Department of Public Health followed suit.
The Governor’s Executive Order modifies the Cal/OSHA regulation to reconcile it with the modified CDC guideline. See Newsom Signs Executive Order Modifying CalOSHA’s Emergency Temporary COVID-19 Regulations (December 17, 2020) Ramona Carillo, Esq., Weintraub Tobin.
COVID-19 Vaccines
Way ahead of the most recent events involving COVID-19 vaccine emergency use authorizations, lawyers were busy thinking about what it would all mean for the reopening or normalizing of American life. See for example COVID-19 Vaccinations Arriving For the Holidays: What Employers Need to Know and Can Do (November 24, 2020) Bret Daniel, Esq. et al., Ogletree Deakins.
But just in the last 10 days or so, there have been major developments, including:
- FDA emergency use authorization for two vaccines in a faster-than-expected time-frame, and with apparent efficacy vastly higher than the most optimistic hopes
- The initial inoculations of some front-line medical workers and nursing home personnel and residents
- The first sudden break in the supply chain, and a shaky and speculative inoculation schedule for the population as a whole that could range as long as into mid-summer 2021
All along, one of the major points of speculation and debate has been about whether employers will or should make vaccination mandatory. Then, on December 16, 2020, the U.S. Equal Employment Opportunity Commission chimed in to this conversation in a big way: see What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws: Technical Assistance Questions and Answers (updated 12/16/20).
The long and the short of it – according to the EEOC – is that an employer may mandate COVID-19 vaccines for its workers except for two narrow exceptions: (1) when a person cannot be vaccinated due to a disability or (2) if a worker objects because of a “sincerely held religious belief.” This EEOC guidance also covers thorny issues including, for example, pre-vaccination medical screening questions. See, for instance: EEOC Updates COVID-19 Guidance on Employer Administered or Mandated Vaccinations (December 17, 2020) Jennifer Barna, Esq. et al, Epstein Becker & Green; see also EEOC Issues Revised Guidance Addressing COVID-19 Vaccines (December 17, 2020) Michael Eckhard, Esq., Ogletree Deakins. This is just the tip of the iceberg of commentary emerging on this significant issue.
Conclusion
There is hope on the horizon but a complicated path to getting through the winter COVID-19 surge and to the other side of whatever normalcy we can or should regain.
— Linda J. Rosenthal, J.D., FPLG Information & Research Director
The post More COVID-19 Heads Ups for CA Employers appeared first on For Purpose Law Group.