Tag Archives: Coronavirus (COVID-19)

COVID-19 Extension of Group Welfare Plan Benefit Deadlines Clarified Bringing Potential Relief for Employers

Contributed by Rebecca Dobbs Bush, March 9, 2021

hand holding megaphone – benefits

In a previous blog article, we alerted readers to the extension of deadlines related to COBRA, Special Enrollment, Plan Disclosures and more. The prior Joint Notice from the DOL and IRS provided suspension of all deadlines until 60 days after the expiration of the National Emergency, referred to as the “Outbreak Period.”

The issue requiring clarification arose due to the unanticipated length of the Outbreak Period.  Much like all of us, the IRS and DOL did not foresee an Outbreak Period continuing well over a year later.  As the one-year anniversary of the Outbreak Period approached, a conflict began to arise with ERISA section 518 and Code section 7508A(b). Those provisions generally provide that the Secretaries of Labor and the Treasury may prescribe extensions of only up to one-year when it relates to a Presidentially declared disaster. Accordingly, some plans were contemplating a complete disregard of further extensions based on the one-year limitation on the emergency rule-making process.  Anticipating this potential action by plan sponsors, the DOL (also on behalf of the IRS) issued Disaster Relief Notice 2021-01.

However, with Notice 2021-01, the intended “clarification” of the discrepancy has led to a much more administratively complicated process.  Now, plan sponsors and participants must apply the extension on an individual basis for each separate deadline versus the previously declared extension of all deadlines.  Notice 2021-01 confirms that individual deadlines are revised to the earlier of: (1) one year from the date of the original deadline, or (2) the end of the Outbreak Period (previously defined and which has yet to occur).

Several specific examples were provided in Notice 2021-01 to help illustrate the revised administration of plan deadlines:

  • If a qualified beneficiary would have been required to make a COBRA election by March 1, 2020, the Joint Notice delays that requirement until February 28, 2021 – which is the earlier of 1 year from March 1, 2020 or the end of the Outbreak Period (which remains ongoing).
  • If a qualified beneficiary would have been required to make a COBRA election by March 1, 2021, the election deadline is now delayed until the earlier of 1 year from that date (i.e., March 1, 2022) or the end of the Outbreak Period.
  • If a plan would have been required to furnish a notice or disclosure by March 1, 2020, the relief under the Notice would end with respect to that specific notice or disclosure on February 28, 2021.

Note that none of the examples provided allow for a deadline extension of more than 1 year.  For this reason, Notice 2021-01 provides much needed relief for employers that were trying to manage never-ending extensions for COBRA elections, payments, etc. And as additional relief for employers, the DOL specifically indicates that prior notices furnished without relying on the relief set forth in Notice 2021-01, do not need to be reissued.   

Within Notice 2021-01, the DOL also reminds plan sponsors that “The guiding principle for administering employee benefit plans is to act reasonably, prudently, and in the interest of the workers and their families who rely on their health, retirement, and other employee benefit plans for their physical and economic well-being.”  In keeping with this guiding principle, the DOL encourages plan sponsors to consider affirmatively sending notices to those participants that are now facing the end of the relief period advising them of such.  In other words, if you now have COBRA participants or others that will be suddenly subject to election or payment deadlines, it is best practice to provide them with some type of notice or communication to that effect.

URGENT: Workers Can Refuse Work and Receive Unemployment Benefits Due to COVID-19

Contributed by Steven Jados, February 26, 2021

unemployment claim form on desk

On February 25, 2021, the U.S. Department of Labor (DOL) announced three new categories of individuals eligible to collect federally-funded unemployment benefits as the COVID-19 Pandemic continues.  They are:

  • Individuals who refuse to return to work that is unsafe or to accept an offer of new work that is unsafe;
  • Certain individuals providing services to educational institutions or educational services agencies; and
  • Individuals experiencing a reduction of hours or a temporary or permanent lay-off.

These changes are expected to take effect in late March, but could take longer to take hold as each state must adopt and administer to this new guidance in order to receive the additional federal COVID-19 specific funding.

Focusing on the first category, it essentially creates an additional “good cause” reason for an employee to refuse work, but remain eligible for unemployment benefits in situations in which “[t]he individual has been denied continued unemployment benefits because the individual refused to return to work or accept an offer of work at a worksite that, in either instance, is not in compliance with local, state, or national health and safety standards directly related to COVID-19.  This includes, but is not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.”

In order to obtain benefits under this provision, the DOL requires individuals to attest, under penalty of perjury, that they have been denied continued unemployment because they “refused to return to work or accept an offer of work at a worksite that, in either instance, is not in compliance with local, state, or national health and safety standards directly related to COVID-19.  This includes but is not limited to, those related to facial mask wearing, physical distancing measures, or the provision of personal protective equipment consistent with public health guidelines.” 

It is unclear exactly how it would be possible for, e.g., an applicant who never set foot on a worksite or an employee who had not been in the workplace since pandemic-related changes were implemented to credibly complete the attestation.

Beyond the attestation under perjury, specific standards and requirements will largely be left to the states.  Many states previously made clear that a generalized fear of COVID-19 in the workplace was an insufficient basis to refuse work and still receive unemployment benefits, and we anticipate many states will continue to require more than generalized fears when determining eligibility under this new DOL category.

The task for employers in light of this expansion is to demonstrate the safety and security of the workplace from a COVID-19 prevention and mitigation perspective.  Step one in that regard is, of course, to ensure that the business has enacted policies and procedures in-line with the most up-to-date guidance from the CDC and other federal, state, and local agencies.  Step two is to make clear to employees (1) what steps have been taken to improve health security in the workplace; (2) the fact that the business is vigilantly monitoring CDC and public health guidance and is ready to implement further protections in accordance with that guidance; and (3) that employees should feel free to express their questions and concerns to management regarding COVID-19 safety in the workplace without fear of adverse consequences or retaliation. This can take the form of e-mailed announcements and bulletin board postings for current employees. 

But for employees away from work because of pandemic-related concerns, more formal, written correspondence aimed at communicating how the business has directly resolved the employee’s concerns may be appropriate.  As always, we recommend drafting such correspondence with an eye toward an interactive process between the business and employee—and with guidance from experienced counsel. 

Check Local and State Health Department Rules: Some Require Reporting of COVID-19 Cases

Contributed by Peter Hansen, Michael Wong and Sara Zorich, February 23, 2020

COVID-19 Screening Questionnaire form with medical mask and a pen on it.

A question that employers often ask when someone in the workplace reports COVID-19 symptoms or a positive test is, who is the employer required to notify? Typically common sense and CDC guidelines have been that employers must engage in contact tracing and notify individuals who were in “close contact” with the person. In recent months and weeks, local and state departments of public health have continued to issue guidance, and mandates, that employers must also identify and observe and sometimes try to interpret despite conflicting statements.

For example, in December 2020, the Illinois Department of Public Health (IDPH) revised its regulations to add COVID-19, SARS and MERS to the list of Class I(a) diseases that “shall be reported immediately (within three hours) by telephone, upon initial clinical suspicion of disease to the local health authority, which shall then report to the IDPH immediately (within three hours.) Ill. Admin. Code tit. 77, § 690.100. For context, Class I(a) diseases include Anthrax, Plague, Smallpox, and suspected bioterrorist threats or events. The reporting of Class I(a) diseases has historically been the responsibility of the hospital, physician or medical provider who treats or confirms an individual’s positive tests result for such a disease. However, the applicable regulation does have a catchall provision that places reporting responsibility on “Any other person having knowledge of a known or suspected case or carrier of a reportable communicable disease or communicable disease death.” Ill. Admin. Code tit. 77, § 690.200.  Taken together, these provisions arguably require employers who know of a “known or suspected case” of COVID-19 to immediately report the information to their local health authority.

To further complicate the matter, the IDPH updated its “Guidance for Employers and Employees on Workers’ Rights and Safety” webpage on or about January 7, 2021 to state the following:

“If two or more employees report having COVID-19 related symptoms or test positive for COVID-19, the employer must notify their local health department within 24 hours of being informed of the presence of COVID-19 symptoms or positive test results.”

This is a pretty significant change as it modifies the reporting from voluntary to mandatory and is unclear regarding the time period for the two cases occurring (e.g. whether it is two cases over 14 days, two months, or since March 2020). That said, under CDC guidelines for contact tracing and the guidelines of some local public health departments it is reasonable to view the applicable time period for determining whether reporting is required under IDPH regulations as a 14 day period.

To add further confusion, local public health departments may have a higher or lower standard. For example, the City of Chicago and Kane County, Illinois health departments still advise businesses that they may voluntarily report employees with symptoms or confirmed cases, but are not required to do so. While in others areas, like Winnebago County, Illinois, the local health department is telling employers that they are required to report when one (1) or more employee develops COVID-19 symptoms or receives a positive test result, and are requiring employers to submit information regarding their businesses and the individual(s) at issue (including their symptoms and demographics).

Ultimately, no matter the standard for reporting, the employer is required to cooperate with local public health authorities in the investigation of cases, suspect cases, outbreaks and suspect outbreaks. This is fairly consistent throughout the United States.

What happens if you do not comply with reporting or an investigation? – It depends on the state and local laws and regulations regarding the violations of public health laws, but generally violations can result in fines, criminal charges and even result in a business being temporarily closed down. For example, under Illinois law, failure to comply may result in a Class A misdemeanor and the IDPH and local health department have the ability to order a business be closed if it deems immediate action is required to protect the public.

BUT WHAT DOES THIS MEAN WITHOUT THE LEGALESE?

  1. Employers MUST be aware of what requirements or guidance their local public health department has regarding reporting cases of COVID-19 AND should take steps to comply with both the state and local requirement regarding reporting when employees are suspected or confirmed to have COVID-19.
  2. Documentation through COVID-19 Questionnaires for employees who report symptoms will become even more important. Questionnaires should include questions not only about what symptoms an employee has, but where the employee has been in the last 14 days; whether the employee or family members have interacted with individuals outside of their home for more than a cumulative 15 minutes in a 24 hour period; whether the employee or family members have visited stores or other locations within 10 or more people; etc.
  3. Employers should recognize the potential risks, which may include fines, criminal prosecution and even being shut down, when responding to state and local public health departments’ requests for additional information and investigations. Any concerns should be vetted through competent risk management consultants and experienced legal counsel.

What President Biden’s American Rescue Plan Could Mean for Employers

Contributed by Suzannah Wilson Overholt, February 17, 2020

COVID-19 stimulus package, US dollar cash banknote on American flag

Congress is turning its attention to President Biden’s $1.9 trillion economic stimulus package, which is called the American Rescue Plan.  Because the package includes enhanced unemployment benefits that are currently set to lapse in mid-March, Congress is under pressure to take action by then.

The following aspects of the proposal have a specific impact on employers:

  • Restoration and expansion of emergency paid leave
    • President Biden has proposed reinstating and expanding the paid sick and family leave benefits passed as part of the Families First Coronavirus Relief Act (FFCRA) which expired in December. The proposal would reinstate those leave provisions through September. (Read more about the FFCRA leave requirements in our previous blog from March 2020).
    • The proposal expands the leave requirements to cover businesses with fewer than 50 and more than 500 employees, as well as first responders and healthcare workers, who could be exempted from the original leave requirements.  (The proposal would also grant leave to federal workers.) 
    • The government will reimburse employers with fewer than 500 workers for the full cost of providing the leave.
  • Restaurant industry:  The proposal includes the FEMA Empowering Essential Deliveries (FEED) Act that uses the restaurant industry to get food to families in need and helps get laid-off restaurant workers back to work. 
  • Minimum wage:  President Biden’s proposal includes raising the minimum wage to $15 an hour over four years and ending the tipped minimum wage and the sub-minimum wage for people with disabilities. Whether this will actually be considered by Congress as part of the stimulus package is uncertain.
  • Worker safety:  The proposal includes provisions regarding worker safety, which we addressed in a previous blog

Other aspects of the proposal that, while not being specifically workplace related, have an impact on workplace issues are as follows:

  • Vaccines and testing:  The proposal seeks $160 billion for vaccines, testing and related programs to fight COVID-19.  It includes $20 billion for a national vaccination program and $50 billion for testing.  Part of the funding would be directed to hiring public health workers to help administer vaccines and tests.  The goal would be for more people to be vaccinated faster, which should allow more employees to return to work and more businesses to re-open.
  • Extension of pandemic unemployment programs
    • President Biden has proposed increasing federal supplemental unemployment assistance by $100 a week, making it $400 a week instead of the $300 a week that Congress approved in December. 
    • The Pandemic Emergency Unemployment Compensation program, which applies to those who have exhausted their regular state jobless payments, and the Pandemic Unemployment Assistance program, which provides benefits to the self-employed, independent contractors, gig workers and certain people affected by the pandemic, would both be extended.
    • These payments and programs would be extended through September. Currently, they are set to expire in mid-March.
  • Child care: President Biden’s proposal creates an emergency stabilization fund for child care providers to allow them to re-open and stay open. It also contains additional funding to assist families with child care expenses. 

We will provide updates about the status of these proposals as they work their way through Congress.

OSHA’s Latest COVID-19 Guidance

Contributed by guest author Matthew Horn, February 10, 2021

In response to an executive order signed by President Biden, OSHA recently issued updated COVID-19 guidance recommending that all employers adopt a formal COVID-19 prevention plan, incorporating the following activities and elements:

  • Conducting a hazard assessment relating to COVID-19 exposure;
  • Identifying control measures to limit the spread of COVID-19 (such as distancing, masks, barriers, work-from-home, staggered shifts, etc.);
  • Adopting policies that encourage sick workers to stay home and not come into work;
  • Communicating and training employees on the policies and procedures implemented (in their native languages); and
  • Implementing protections from retaliation for workers who raise COVID-19 related concerns and issues.

Also note that the updated guidance advises employers to continue to require all employees — even those who have been vaccinated — to comply with all control measures, including the wearing of masks and social distancing, stating “there is no evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.”

While OSHA rightfully acknowledges that these recommendations do not create new standards or regulations, employers should comply with them nonetheless, with the expectation that OSHA will enforce these recommendations by way of the OSHA General Duty Clause or some other, existing standard. Further, these recommendations will likely become standards within the next thirty days, given the recent executive order directing OSHA to issue any emergency COVID-19 standards by March 15, 2021. We will continue to update you on all developments as that deadline approaches.   

DOL Clarifies that Not All Travel Time is Compensable in the Era of Telework

Contributed by Carlos Arévalo, January 18, 2021

A guy looks at his watch with a train going away in the background.

On the last day of 2020, the US Department of Labor (DOL) issued an opinion letter impacting employers using telework arrangements in light of the COVID-19 pandemic.  While a vaccine is now rolling out and we will hopefully get the pandemic under control in 2021, this opinion letter provides guidance to employers that have had to institute remote and hybrid work policies and/or arrangements with their workforce. 

Specifically, the opinion letter addressed two general scenarios: 

  1. Employee has a parent-teacher conference in the middle of the day and works from the office, attends the conference and then goes home to finish her workday in her “home office”; and
  2. Employee has doctor’s appointment scheduled for mid-morning.  She works a couple of hours from home, goes to her appointment and then travels to her office for the rest of the day.  At the end of the day, she returns home.

So is the employee’s travel time compensable?  The opinion letter concludes it is not.  Travel time under either scenario is deemed “off duty” or normal commuting time.  Even if travel time occurs during the regular work or “office hours,” the employee is interrupting her work time to attend to personal matters.  The time is off-duty and the employee “is free to use her time effectively and for her own purposes before resuming work.” 

The opinion letter also finds that the travel time at issue is not compensable pursuant to the worksite-to-worksite travel or continuous workday doctrine.  First, for the worksite-to-worksite travel analysis to apply travel must be part of the employee’s principal activity – here the employee is not being required to travel as part of her job so it is not compensable. Second, while regulations “contemplate that the period between an employee’s first and last principal activities will ‘in general’ be compensable,” this will not be the case when the employee uses the time for her own purposes.  To support its opinion, the DOL examines a number of court decisions that emphasize the employee’s flexibility and freedom to use time for their own purposes.  As may be appropriate, employers should consult with competent counsel to ensure that these policies and arrangements comply with relevant law.

In light of the “new normal” that has emerged in response to the COVID-19 pandemic, employers are encouraged to examine policies and/or telework arrangement to make sure that despite the flexibility such documents are intended to provide, it is clear to employees that time “effectively used for their own purposes” during their workday will not be compensable. 

STIMULUS 2.0: The Consolidated Appropriations Act 2021 – Key Provisions for Employers

Contributed by Rebecca Dobbs Bush, December 22, 2020

While it has not yet been fully passed and enacted into law, the full text of the Consolidated Appropriations Act, 2021 was released days ago and announced as having bipartisan support. Within the over 5,500-page Act, are several provisions designed to assist smaller businesses and those hardest hit by the economic challenges presented by the COVID-19 pandemic. As is common with legislation, the Act essentially presents only an outline of Congress’ intent and leaves relevant agencies to fill in the details of that outline. Pursuant to mandates in the Act, most agencies, such as the IRS, are directed to publish clarification within weeks of enactment.

While we await further guidance and clarification, the below list highlights those provisions, not specific to particular industries, that businesses should be aware of:

  • Paycheck Protection Program (PPP)
    • Borrowers now have the green light to claim deductions for any and all expenses paid with loan proceeds, regardless of whether or not they obtain forgiveness of their loan amount.
    • Employers are permitted to cover additional categories of non-payroll costs with PPP loan proceeds, such as:
      • “covered operations expenditures” which means “payment for any business software or cloud computing service that facilitates business operations, product or service delivery, the processing, payment, or tracking of payroll expenses, human resources, sales and billing functions, or accounting or tracking of supplies, inventory, records and expenses”
      • “covered property damage costs” which means “a cost related to property damage and vandalism or looting due to public disturbances that occurred during 2020 that was not covered by insurance or other compensation”
      • “covered supplier costs” which means payment to a supplier of goods for goods that are “essential to the operations of the entity at the time at which the expenditure is made; and is made pursuant to contract, order, or purchase order…”
      • “covered worker protection expenditures” which means an “operating or a capital expenditure to facilitate the adaptation of the business activities of an entity” to comply with guidance issued by HHS, CDC, OSHA or any equivalent requirements issued by state or local government since March 1, 2020. This may include expenses to create a drive-through window facility, an indoor, outdoor or combined air or air pressure ventilation or filtration system, a physical barrier such as a sneeze guard, an expansion of indoor or outdoor business space, or onsite or offsite health screening capability.
    • Clarification that “payroll costs” for purposes of PPP loans, includes group life, disability, vision or dental insurance benefit costs.
    • Simplified forgiveness application process for PPP loans up to $150,000.
    • “Second Draw Loans” for the Paycheck Protection Program
      • Eligible entities:
        • includes those employing less than 300 employees (now including nonprofit organizations) AND
        • Those that had “gross receipts” in a quarter during 2020 that represents a 25% reduction from gross receipts of the entity during the corresponding quarter in 2019.
      • Maximum loan amounts are 2.5 times the average monthly payroll costs up to $2 million (NAICS 72 entities can obtain 3.5 times the average monthly payroll costs up to $2 million).
      • An entity that returned all or part of a prior PPP loan has an opportunity to reapply.
      • Entities that did not obtain the maximum amount of PPP loan available to them based upon the regulations in place at the time of their initial application, may request a modification to previous loan amount.
  • Expansion of the Employee Retention Tax Credit
    • Expanded eligibility:
      • Participation in the Paycheck Protection Program does not lead to disqualification where the payroll at issue is not funded by PPP loan proceeds.
      • Gross receipts for the calendar quarter are less than 80% of the gross receipts for the employer in the same calendar quarter during 2019 (was previously required to be less than 50%).
      • Previously, those with more than 100 employees could only take the credit in regard to wages paid to an employee that was not providing services.  Those at or under 100 employees could take the credit in regard to wages paid to any employee. This threshold was increased from 100 to 500 employees.
    • Extension of the program through July 1, 2021
    • 50% credit for qualifying wages increased to 70%
    • Instead of “qualifying wages” capped at $10,000 per employee, revised to $10,000 per employee per calendar quarter.
  • Unemployment Insurance benefits
    • An additional $300 per week for all receiving unemployment benefits through March 14, 2021.

Be assured that we will be providing more insight as more developments unfold to our contacts and clients in the days and weeks to come. 

COVID-19 Relief Bill: FFCRA Leave Mandate Not Extended; Tax Credits Available for Voluntary Leave

Contributed by Kelly Haab-Tallitsch, December, 22, 2020

A $900 billion COVID-19 relief bill passed by Congress late last night is expected to be signed into law by President Trump later today. In addition to an assortment of aid for individuals and businesses, the bill extends several provisions of the CARES Act passed in March, including the tax credit for employers providing paid leave under the Families First Coronavirus Response Act (FFCRA). However, the bill does not extend the mandate for employers to provide paid leave, set to expire December 31, 2020.

What Does This Mean?

Employers are not required to provide paid sick leave or paid family leave for coronavirus-related reasons under the FFCRA after December 31, 2020. But the COVID-relief bill allows employers with less than 500 employees to voluntarily provide this leave and take the tax credit associated with the leave through March 31, 2021. Tax credits are available for qualifying wages (up to a cap) paid while an employee is on leave if (1) the leave would have been required under the FFCRA had the FFCRA been extended through March 31, 2021, and (2) all requirements related to leave under the FFCRA are met.

The bill does not change the maximum amount of paid leave subject to the tax credit for an individual employee. This means that if an employee took 80 hours of paid sick leave to quarantine in 2020, and the employer claimed the tax credit on wages paid during that leave, the employer cannot claim an additional tax credit on wages paid to that same employee for additional paid sick leave in 2021.  

Next Steps

Employers should decide as soon as possible if they will provide voluntary paid FFCRA leave during the first quarter of 2021 – and commit to that decision.  Additionally, employers should administer the leave on a consistent basis and maintain all documentation required to substantiate the leave.

Of course, local and state leave mandates (paid and unpaid), as well as disability-related accommodation and traditional FMLA leave are all still in play. Employers need to continue to carefully navigate the waters of COVID-19 related leaves regardless of the FFCRA.

Click here for a summary of the FFCRA Paid Leave Requirements.

Update: EEOC Issues Guidance Regarding COVID-19 Vaccines in the Workplace

Contributed by Suzannah Wilson Overholt, December 16, 2020

Doctor hand wears medical glove holding syringe and vial bottle with covid 19 vaccine drug multiple dose for injections.

In follow-up to our previous blog regarding mandating the COVID-19 vaccine in the workplace, the U.S. Equal Employment Opportunity Commission (EEOC) has now issued guidance addressing that very issue. According to the guidance, employers may ask employees if they have had the COVID-19 vaccine and require the vaccine pursuant to U.S. Centers for Disease Control (CDC) or other federal or state guidelines. However, any mandates must allow exemptions for employees who are unable to receive the vaccine due to disability or a sincerely held religious belief or practice.

The key takeaways from the EEOC’s guidance are as follows:

  • In order for an employer to require the COVID-19 vaccine, it must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists:
    • the duration of the risk;
    • the nature and severity of the potential harm;
    • the likelihood that the potential harm will occur; and
    • the imminence of the potential harm. 
  • An employer must provide reasonable accommodations to a vaccine requirement for employees who seek accommodation based on disability or a sincerely held religious belief, practice, or observance. The EEOC has consistently required such accommodations, which we described in an earlier blog.   
  • The administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) is NOT a “medical examination” for purposes of the Americans with Disabilities Act (ADA). 
  • Pre-screening questions associated with administering the vaccine may implicate the ADA’s prohibition on disability-related inquiries if the employer requires the vaccine and answering the questions is mandatory. If the employer administers the vaccine, it must show that pre-screening questions are “job-related and consistent with business necessity.” This is not a concern if the vaccine and answering the questions are voluntary.
  • Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is NOT a disability-related inquiry. 
  • Title II of the Genetic Information Nondiscrimination Act (GINA) is NOT implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute.
  • GINA may be implicated if pre-screening questions include questions about genetic information, such as family medical history. If the pre-vaccination questions include questions about genetic information, employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.

Due to the evolving nature of this issue, advice of qualified counsel should be sought before implementing any COVID-19 vaccine program in the workplace.

California Implements New COVID-19 Emergency Temporary Standards Now in Effect

Contributed by Carlos Arévalo, December 4, 2020  

Wooden judge gavel with USA state flag on sound block – California

The California Occupational Health & Safety Standards Board adopted rules implementing Emergency Temporary Standards (ETS) that went into effect on November 30, 2020. The ETS regulations apply to all employers, employees, and to all places of employment except the following:

  • Workplaces where there is only one employee who does not have contact with other people
  • Remote employees
  • Employees covered by California’s Aerosol Transmissible Diseases regulation

In an effort to assist all impacted by the ETS regulations, California’s Department of Industrial Relations has issued a set of Frequently Asked Questions addressing the mandated prevention program requirements that include workforce communication, “outbreak” and “major outbreak” handling procedures, training and record keeping and reporting as well as all other standards in the regulations intended to further control and minimize the spread of the virus in the workplace.

The FAQs address regulation amendments that require employers to maintain written COVID-19 prevention program and training programs. The prevention and training program elements must include internal reporting policies on employee infections, potential exposures, the now familiar physical distancing, face covering and other preventive measures as well as other mitigating risk protocols (Plexiglas, cleaning procedures, PPE).

The FAQs also outline the regulation procedures applicable to COVID-19 infections and/or outbreaks. In non-outbreak situations, employers must notify employees about exposures and positive tests while preserving personal identifying information, offer testing at no cost to the employees, ensure that employees infected/exposed are excluded from work while following applicable requirements regarding benefits and pay, and investigate and address any exposure hazards. Employers are also required to maintain record keeping and reporting requirements with the local department of health.

In outbreak situations, and in addition to requirements summarized above, employers must conduct immediate COVID-19 testing at no cost to the employees and repeat a subsequent test a week later. Any positive tests or exposed employees must then be excluded from work. Employers are also required to continue testing (at least weekly) until the workplace no longer qualifies as an outbreak. An “outbreak” is defined as 3 or more cases within a 14 day period or as a local health department may so determine.

In the case of a “major outbreak”, defined as 20 or more cases within a 30-day period, additional measures are triggered.  These include twice a week testing, ventilation changes and implementation (to at least MERV-13 rating), determination for the need to implement a respiratory protection program if one is not already in place or changes/improvements to an existing program, and most significantly, consideration of a full or partial shutdown of operations.  

While not specifically addressed in the FAQs, the regulations also add new sections on employer-provided housing and transportation. As it relates to housing, which does not apply to emergency response operations such as fire, rescue and utilities, communication and medical support activities, employers are required to prioritize housing assignments, impose physical distancing and face covering requirements as well as screening, testing, isolation and cleaning procedures. Similar requirements are imposed regarding employer-provided transportation.  

Employers are encouraged to review all requirements imposed by these Emergency Temporary Standard regulations, to implement compliance programs as required therein, and to update internal policies and procedures that comply with these regulations. We will continue to monitor any FAQs expansion and new information.