COVID-19 Employment Law Update: EEOC and Cal/OSHA Developments

COVID-19 Vaccine Rollout Prompts EEOC to Update Guidance Regarding Mandatory Vaccinations in the Workplace

The rollout of the Pfizer and Moderna vaccines in the United States has triggered extensive discussion around the law concerning mandatory vaccine policies in the workplace. This discussion will almost certainly evolve over the coming months, as more becomes known about vaccine availability at the time of widespread office reopening, side effects and other considerations. 

In the meantime, on December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its pandemic-related guidance and FAQs, principally with respect to the interplay between workplace vaccine mandates and federal anti-discrimination laws. Consistent with prior EEOC guidance regarding flu and other vaccinations, the EEOC reaffirmed that, in general, employers may lawfully impose a vaccine mandate as a condition to return to the workplace, and, more specifically, as a lawful qualification standard to address a direct threat to the health or safety of personnel. However, employers must reasonably accommodate employees who cannot comply with the mandate because of a disability and/or sincerely held religious belief, so long as such accommodation does not constitute an undue hardship to the business.

Employers should consult legal counsel as they consider and prepare to implement mandatory, as well as voluntary, vaccine programs, and any such program should be conveyed in a clear written personnel policy.

California Division of Occupational Safety and Health Administration’s Emergency Temporary Standards on COVID-19 Impose New Requirements on Employers

California’s Office of Administrative Law (OAL) approved California Division of Occupational Safety and Health Administration’s (Cal/OSHA) proposed emergency regulations on COVID-19 prevention on November 30, 2020. The Emergency Temporary Standards (ETS) took effect immediately and require California employers to implement strict workplace safety measures to reduce the risk and transmission of COVID-19. Emergency regulations generally remain in effect for 180 days unless the OAL approves a re-adoption of the regulations during that time period.

Many of the ETS provisions were previously mandated by state or local government orders, yet the ETS impose several new requirements on employers, particularly in the event of COVID-19 cases in the workplace. The key provisions of the ETS are described in the following alert.

Which Employers Must Comply

The ETS apply to all California employers and workplaces except: (1) workplaces with only one employee who does not have contact with others; (2) employees working from home; and (3) employees covered by the Aerosol Transmissible Diseases regulation.

COVID-19 Prevention Program

The ETS compel all covered employers to implement a written COVID-19 Prevention Program (“CPP”). A detailed list of what must be included in a CPP can be found in these FAQs, but at a high level, the CPP must (1) identify, evaluate and correct COVID-19 hazards in the workplace; (2) require safety precautions such as physical distancing, providing and requiring face coverings and other controls aimed at reducing transmission risk; (3) provide training on COVID-19 and communicate about the employer’s prevention procedures to employees; (4) keep a record tracking all COVID-19 cases in the workplace, keeping any medical information confidential.  

This recordkeeping must be made available to employees and their authorized representatives (e.g., unions) upon request, with personal identifying information removed. The CPP must also include the employer’s obligations in the event of a COVID-19 case in the workplace, which are described in more detail below.

Cal/OSHA has provided a Model COVID-19 Prevention Program to assist employers in developing their own effective COVID-19 Prevention Program.

Employer Obligations in the Event of a COVID-19 Case in the Workplace

In the event of a COVID-19 case in the workplace—i.e., someone who has a positive COVID-19 test, who is subject to a COVID-19-related order to isolate by a public health official, or who died due to COVID-19—the employer must take the following actions while maintaining employee confidentiality:

• Establish when the COVID-19 case was in the workplace and to the extent possible, the dates of the diagnosis and/or the onset of symptoms.
• Determine which employees were potentially exposed to COVID-19.
• Within one business day, notify employees and employers of subcontracted employees of any potential exposure.
• Investigate whether workplace conditions contributed to the risk of exposure and corrections that would reduce exposure.
• Offer information on and access to COVID-19 testing.
  • Employers must provide information to all employees on how they can obtain a test for COVID-19.
  • Employers must offer testing at no cost, during working hours, to all employees who were potentially exposed to COVID-19 in the workplace. A COVID-19 exposure is defined as being within six feet of a COVID-19 case for at least 15 minutes in any 24-hour period during the “high-risk exposure period”—two days before until ten days after a positive test or the onset of symptoms.
• Exclude COVID-19 cases and potentially exposed employees from the workplace until certain criteria are met.
  • A COVID-19 case with symptoms may not return to work until (1) at least 24-hours have passed since a fever of 100.4 or higher has resolved without fever-reducing medications; (2) COVID-19 symptoms have improved; and (3) it has been at least 10 days since symptoms first appeared. A COVID-19 case need not produce a negative test to return to work.
  • A COVID-19 case who tested positive but never developed symptoms may not return to work until at least 10 days since the date they took their first positive test.
  • Employees exposed to COVID-19 in the workplace may not return to work for 14 days after the last known exposure.
  • If an employee must be excluded from the workplace under these standards, but is otherwise able and available to work, the employer must maintain the employee’s earnings, benefits, seniority and job protection during the quarantine period. 
    • Employers may require employees to exhaust their paid sick leave benefits before providing exclusion pay during quarantine and may offset payments by the amount employees receive from other benefits.
    • The obligations to provide earnings and benefits during quarantine do not apply if (1) the employer can demonstrate that the COVID-19 exposure was not work related; or (2) the employee is unable to work for reasons other than the need to protect the workplace from possible COVID-19 transmission.
• Report any COVID-19 serious illness (requiring inpatient hospitalization) or death to Cal/OSHA immediately.

Additional Requirements for COVID-19 Outbreaks in the Workplace

In the event of a COVID-19 outbreak in the workplace, (currently defined by the State Department of Public Health as three or more laboratory-confirmed cases of COVID-19 among employees who live in different households within a two-week period), or a major outbreak (currently defined by the State Department of Public Health as 20 or more laboratory-confirmed cases within a 30-day period), in addition to a covered employer’s obligations described above in response to a COVID-19 case, it must also (1) notify its local health department immediately (within 48 hours at the latest); and (2) provide more extensive testing.  

For outbreaks, the employer must provide free initial testing and follow-up testing after one week to all employees during working hours. There must be continued testing weekly until there are no new cases in a two-week period.  If an employer has a major outbreak, it must provide testing twice per week until there are no new cases in a two-week period.

Covered employers should review their existing COVID-19 exposure response plans to ensure compliance with the ETS. The California Department of Industrial Relations (DIR) acknowledged that employers will need time to fully implement these standards, but underscored that eliminating COVID-19 hazards and adhering to the new testing requirements are essential. The DIR has published FAQs and a fact sheet to help employers meet the ETS requirements.