This article was reviewed January 2021 and the information is up-to-date.

 

On December 14, 2020, Governor Gavin Newsom issued Executive Order N-84-20 (the “Order”), addressing a number of issues related to COVID-19 and the present public health emergency.

In this bulletin, we address several issues of significant importance to employers, including revisions to the quarantine period provided in the newly adopted Cal/OSHA regulation, the requirement that “emergency response workers” observe modified quarantine requirements, and the suspension of certain rules limiting the use of retired annuitants to “mitigate the effects of the COVID-19 pandemic.”

Revisions to Cal/OSHA Quarantine Period

The Order revises the regulatory provision requiring that employees quarantine for 14 days following “close contact” exposure[1], aligning the Cal/OSHA quarantine standard with that articulated in an updated California Department of Public Health (“CDPH”) guidance released in conjunction with the Order.

Cal/OSHA previously required employers to exclude from the workplace any employee who had “close contact” exposure to someone with COVID-19 until the employee quarantined for 14 days following that contact.[2] That requirement, which took effect on November 30, almost immediately came into conflict with more permissive guidance issued by the Centers for Disease Control and Prevention (“CDC”) on December 2 and by CDPH on December 7.

The Order suspends the more restrictive quarantine requirements adopted by Cal/OSHA, bringing the regulation into compliance with the updated December 14 CDPH guidance. As a result, following a “close contact” exposure, an employer must exclude employees from the workplace according to the following framework:

  • An employee may discontinue quarantine and report back to the workplace after the tenth day following “close contact” exposure, so long as the employee did not present any symptoms associated with COVID-19 during the quarantine period;
  • During a critical staffing shortage[3], certain employees, including health care workers, emergency response worker and certain social service workers[4], may discontinue quarantine and report back to the workplace after the seventh day following “close contact” exposure if: (1) the employee did not present any symptoms associated with COVID-19 during the quarantine period; (2) the employee received a PCR[5] COVID-19 test no earlier than the fifth day following the “close contact” exposure; and (3) that test produced a negative result.

The CDPH guidance further provides that all asymptomatic employees who discontinue the quarantine prior to 14 days must observe the following:

  • Adhere strictly to all recommended non-pharmaceutical interventions, including wearing face coverings and observing physical distancing; and
  • Self-monitor for symptoms associated with COVID-19, and if such symptoms occur, immediately self-isolate, contact the local health department or their health care provider, and seek testing.

Finally, the essential employees, described above, who return to the workplace after the seventh day following the “close contact” exposure must wear a surgical face mask while at work and should continue to use a face covering when outside the home through the 14th day after the “close contact” exposure.

Emergency Responders Now Covered by the Quarantine Guidance

A significant unanswered question related to the newly adopted Cal/OSHA regulations concerns whether the regulations cover safety employees, including police and firefighters, or whether such employees are exempt by virtue of the fact that they may be subject to the Cal/OSHA regulation related to aerosol transmissible diseases (“ATD”)[6].

While the Order does not directly address the general question concerning the scope of the Cal/OSHA regulations, it does clarify that “emergency response workers” are subject to the updated quarantine guidance and revised return to work criteria described above, and that these employees are not entirely exempt from the regulatory requirements because they are subject to the Cal/OSHA ATD regulation.[7]

While Cal/OSHA has still not provided specific guidance on the scope of its newly adopted regulation and whether it covers all safety employees, the Order and the updated CDPH guidance confirm that “emergency response workers” are, at a minimum, subject to a quarantine should they have a “close contact” exposure.

Suspension of Certain Limitations Regarding the Use Retired Annuitants

The Order also suspends certain limitations regarding the use of retired annuitants where the annuitant is or will be engaged in “mitigating the effects of the COVID-19 pandemic.” This change will make it easier for employers to use retired annuitants during the present public health emergency.

Under Government Code section 21221, subsection (h), a governing body may temporarily appoint a CalPERS retired annuitant to a vacant position during either: (1) the recruitment for a permanent appointment in a position deemed by the governing body to require specialized skills; or (2) in an emergency to prevent stoppage of public business. However, the Government Code generally limits governing bodies in making such appointments by providing that the governing body may only appoint an individual to a position once and that the annuitant’s appointment cannot exceed 960 hours in a fiscal year.

The Order suspends the “reinstatement and work hour limitations… [including, in particular, the limitation that a retiree may only be appointed to a vacant position once]” set forth at Government Code section 21221, subsection (h), if the governing body determines the retired annuitant is or will be engaged in “mitigating the effects of the COVID-19 pandemic.” While this term is not defined, and it is not clear whether the Order also suspends the requirement that retired annuitants be appointed to a vacant position “during recruitment for a permanent appointment”, the Order provides some additional discretion to employers to use retired annuitants who have specialized skills or whose services are needed in order to ensure the continuity of public business.

Liebert Cassidy Whitmore attorneys are available to assist employers that have any questions about the new Executive Order and CDPH COVID-19 Guidance or the related changes they entail.

 

[1] While Cal/OSHA uses the term “COVID-19 exposure”, the CDPH uses the term “close contact”. We elect to use “close contact” because it is more descriptive and less likely to be confused with potential COVID-19 exposures. Nevertheless, both terms – COVID-19 exposure and close contact exposure – mean being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the COVID-19 positive individual’s “infectious period.” The “infectious period” means the following time periods: (1) For persons who develop COVID-19 symptoms: from two (2) days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved; or (2) For persons who test positive who never develop COVID-19 symptoms: from two (2) days before until ten days after the specimen for their first (1st) positive test for COVID-19 was collected.

[2] 8 C.C.R § 3205(c)(10).  Additionally, for public school districts, the CDPH had issued guidance specifically for all students, teachers, and staff with the same return to work criteria.  (https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/Schools%20Reopening%20Recommendations.pdf)

[3] A “critical staffing shortage” exists when “there are not enough staff to provide safe patient care, essential critical infrastructure workers … ” See CDPH “COVID-19 Quarantine Guidance”, https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID-19-Quarantine.aspx (Last updated on December 14, 2020.)

[4] Only social service workers who “work face to face with clients in the child welfare system or in assisted living facilities” are covered. See CDPH “COVID-19 Quarantine Guidance”, https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID-19-Quarantine.aspx (Last updated on December 14, 2020.)

[5] PCR refers to polymerase chain reaction, which is the methodology that certain COVID-19 tests employ to identify the presence of the virus’s genetic material in a specimen. PCR tests are regarded as more accurate than alternative tests.

[6] 8 C.C.R. § 5199; See also 8 C.C.R. § 3205(a)(1)(A)(3) [exempting “employees when covered by [Title 8] section 5199.”

[7] The Cal/OSHA regulation exempts three (3) groups of employees from Title 8 of the California Code of Regulations Section 3205. (See 8 C.C.R. § 3205(a)(1)(A)-(C).) One of the three groups exempted are “employees when covered by [Title 8 CCR] section 5199.” (8 C.C.R. § 3205(a)(1)(C).) Section 5199 covers “[p]aramedic and emergency medical services including these services when provided by firefighters and other emergency responders.” ((8 C.C.R. § 5199(a)(1)(A)(8).) Section 5199 also covers to “[p]olice services, provided during transport or detention of persons reasonably anticipated to be cases or suspected cases of aerosol transmissible diseases; and police services provided in conjunction with health care or public health operations.” Thus, firefighters and police may, depending on the circumstances of the duties performed, be exempt from Section 3205 because they would be covered by Section 5199.

On November 19, 2020, the Occupational Safety and Health Standards Board (“OSHSB”) issued a series of new regulations related to COVID-19, which are set forth in Title 8 of the California Code of Regulations (“C.C.R.”) Sections 3205 through 3205.4 (“Cal/OSHA regulations”). While employers have rightfully focused on their obligation under Section 3205 to adopt and implement a COVID-19 Prevention Program , obligations under Section 3205.1, which apply in the event of a workplace outbreak, warrant specific attention.  Because these regulatory obligations may impose new costs and operational challenges, employers should immediately familiarize themselves with the requirements under Section 3205.1 and plan their response to COVID-19 outbreaks in the workplace.

Section 3205.1 applies to workplaces that experience a COVID-19 “outbreak” meaning three (3) or more COVID-19 cases in a 14-day period.[1] When there is a COVID-19 outbreak in a workplace, Section 3205.1 requires that employers take the following actions to prevent the further spread:

(1) Report the outbreak to the local health department;

(2) Implement additional monitoring measures to inquire into the COVID-19 cases and investigate potential hazards;

(3) Provide testing to employees who were present at the “exposed workplace”[2];

(4) Exclude from the workplace employees who have tested positive for COVID-19 and those who had “close contact”[3] exposure to them;

(5) Investigate the outbreak; and

(6) Continue to notify the local health department of new developments.

Once there is an “outbreak,” an employer has certain continuing obligations described herein that extend until the outbreak ends.

Application

Section 3205.1 applies to any workplace where there is a COVID-19 “outbreak.” Employers – including public agencies, community college districts, schools, and nonprofits alike – should note that the definition of an “outbreak” does not depend on the size of the workplace or the number of employees who may report to a particular worksite or facility.

When an “outbreak” occurs, Section 3205.1 requirements remain in effect until there are no new COVID-19 cases detected at the workplace for 14 days.[4] Accordingly, each new COVID-19 case at the workplace will prolong the employer’s duty to take the above-described actions to prevent the further spread.

To bring added response obligations to an end, it is important that employers act quickly and decisively to resolve outbreaks.  Only then may the employer return to its “normal” modified operations.

Notify the Local Health Department

In the event of a workplace outbreak, employers are required to inform the local health department of the existence of the outbreak[5] as soon as possible, but no more than 48 hours after the employer knew or reasonably should have known about the outbreak.[6]

This notice should include the information required under Section 3205.1 as well as that required under Labor Code section 6409.6, subsection (b), including:

(1) The number of COVID-19 cases;

(2) The COVID-19 cases’ names;

(3) Each case’s contact information;

(4) Their respective occupations;

(5) Their workplace locations;

(6) The cases’ medical status (e.g., hospitalization and/or fatality status); and

(7) The business addresses and NAICS codes of any workplaces where the COVID-19 cases work.[7]

Furthermore, following an outbreak, the employer must continue to update the local health department as the employer discovers more information about the outbreak, the employees affected, and their medical status.[8]

Provide Testing to All Employees at the Exposed Workplace

After an outbreak, an employer must provide COVID-19 testing to all employees who were present at the “exposed workplace” during the outbreak period.[9] This could potentially require that the employer provide testing to numerous employees who work in the “exposed workplace”.

The employer must provide employees COVID-19 testing at no cost and must provide the testing to employees during their working hours.[10] The regulation is silent as to whether an employer can satisfy these obligations by reimbursing employees for costs that they incurred in order to be tested or pay employees to be tested outside their normal working hours.

Furthermore, the employer must offer a second round of testing one week after the first tests in order to satisfy the testing requirement.[11]

Finally, if the employer elects to direct its employees to return to the “exposed workplace” following an outbreak, the employer must provide these employees with COVID-19 testing on a weekly basis, unless the local health department recommends more frequent testing.[12] The employer must continue to provide testing to employees reporting to the exposed workplace until there are no new COVID-19 cases detected at the workplace for 14 days.[13]

Monitor COVID-19 Cases and Hazards and Investigate the Outbreak

After an outbreak, an employer has obligations to monitor its workplace for new cases of COVID-19 and hazards that may contribute to the spread of COVID-19 in the workplace,[14] as well as to investigate the COVID-19 outbreak.[15]

To discharge their post-outbreak duties, employers must make “diligent inquiry” into the presence of new COVID-19 cases and investigate potential hazards, including potentially infectious material and objects or surfaces that may be contaminated with the virus that causes COVID-19.

Employers must also investigate the COVID-19 outbreak by taking action to determine the following:

(1) The day and time of each COVID-19 case;

(2) Where the COVID-19 case was present within the workplace;

(3) The dates of any COVID-19 tests and diagnoses;

(4) The date(s) when symptoms presented; and

(5) Who may have been exposed to the virus.

Employers should be mindful of the notification, confidentiality, and other requirements that accompany such investigations.[16]

The investigation must also include a review of the employer’s COVID-19 policies, procedures, and controls.[17] The employer must document the review and include findings from an investigation into any new or unaddressed COVID-19 hazards.[18] The employer must, on an ongoing basis, update the review according to the following:

(1) Once every 30 days;

(2) Whenever the employer discovers new information or previously unrecognized COVID-19 hazards; and

(3) When otherwise necessary.

Employers should update their review every 30 days, and should update the review more frequently if and when they discover new information, such as new COVID-19 hazards or any other issue requiring an update.[19]

Finally, the employer must implement any changes that would reduce the transmission of COVID-19 based on its investigation findings.[20]  The regulation describes this by saying that “the employer shall consider moving indoor tasks outdoors or having them performed remotely, increasing outdoor air supply when work is done indoors, improving air filtration, increasing physical distancing as much as possible, respiratory protection, and other applicable controls.”

Exclude COVID-19 Positive Employees and Employees with Close Contact Exposures

In the event of a workplace outbreak, the employer has an obligation to exclude from the employer’s worksites and facilities any employee with COVID-19, as well as any employee who had close contact exposure to an individual with COVID-19.[21] The employer must not allow these employees to report to any worksite or facility until they satisfy the applicable return-to-work criteria.[22]

Under certain conditions, employers may request that Cal/OSHA authorize an asymptomatic employee with close contact exposure return to work before finishing the full quarantine period. Cal/OSHA may allow the employee’s return to work if “the removal of the employee would create undue risk to a community’s health and safety.”[23] If Cal/OSHA permits the employee to return to work, it will require the employer to further develop, implement, and maintain effective control measures to prevent transmission in the workplace including providing isolation for the employee at the workplace and, if isolation is not possible, the use of respiratory protection in the workplace.

Conclusion

Employers should familiarize themselves with the significant obligations set forth in Section 3205.1 in order to prepare and plan for a potential COVID-19 outbreak at one of their worksites or facilities.

The regulation imposes numerous requirements, and understanding these requirements ahead of any workplace outbreak will facilitate the employer’s response and return to “normal” modified operations without unnecessary delay.

Liebert Cassidy Whitmore attorneys are available to assist employers that have any questions about the new Cal/OSHA regulations and how to prepare and plan for an outbreak.

[1] “Outbreak” also means a period of time identified by a local health department. (See 8 C.C.R. § 3205.1(a)(1).)

[2] “Exposed workplace” means any “work location, working area, or common area at work used or accessed by a COVID-19 case during the high-risk period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. The exposed workplace does not include buildings or facilities not entered by a COVID-19 case.” (See 8 C.C.R. § 3205(b).) Employers should note that the regulatory definition of “exposed workplace” is broad, and employers do not possess authority under the regulation to subdivide the workplace in order to minimize testing obligations under 8 C.C.R. § 3205(b).

[3] “Close contact” (referred to in the Cal-OSHA regulations as a “COVID-19 exposure”) means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the COVID-19 positive individual’s “infectious period.” The “infectious period” means the following time periods: (1) For persons who develop COVID-19 symptoms: from two (2) days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved; or (2) For persons who test positive who never develop COVID-19 symptoms: from two (2) days before until ten days after the specimen for their first (1st) positive test for COVID-19 was collected.  This is a close contact, regardless of the use of face coverings.

[4] See 8 C.C.R. § 3205.1(a)(2).

[5] 8 C.C.R. § 3205.1(f).

[6] 8 C.C.R. § 3205.1(f)(1).

[7] 8 C.C.R. § 3205.1(f)(2); Lab. Code § 6409.6(b).

[8] 8 C.C.R. § 3205.1(f)(2)–(3); Lab. Code § 6409.6(b).

[9] 8 C.C.R. § 3205.1(b)(1); See also fn. 2, supra; The outbreak period means the period of time identified by the local health department or the period of time during which three (3) or more COVID-19 cases were present at an employer’s workplace within a 14-day period. Unless instructed by the local health department, employers may determine the outbreak period by identifying: (1) the date on which the first COVID-19 positive individual was in their “infectious period” (See fn. 3) and at an employer’s workplace; and (2) the date on which the third, or final, COVID-19 positive individual was in their “infectious period” and at an employer’s workplace. These dates should be within a 14 days of one another.

[10] 8 C.C.R. § 3205.1(b)(1).

[11] 8 C.C.R. § 3205.1(b)(2)(A).

[12] 8 C.C.R. § 3205.1(b)(2)(B).

[13] See fn. 4, supra.

[14] 8 C.C.R. § 3205.1(f)(1).

[15] 8 C.C.R. § 3205.1(d).

[16] See 8 C.C.R. § 3205(c)(3).

[17] 8 C.C.R. § 3205.1(e).

[18] Id.

[19] 8 C.C.R. § 3205.1(e)(2).

[20] 8 C.C.R. § 3205.1(e)(3).

[21] 8 C.C.R. § 3205.1(c); See also 8 C.C.R. § 3205(c)(10)(A)-(B); See also Executive Order N-84-20, https://www.gov.ca.gov/wp-content/uploads/2020/12/12.14.20-EO-N-84-20-COVID-19-text.pdf [revising quarantine guidance under 8 C.C.R. § 3205(c)(10)(B); CDPH “COVID-19 Quarantine Guidance, https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/COVID-19-Quarantine.aspx (Last updated on December 14, 2020.)

[22] 8 C.C.R. § 3205(c)(11).

[23] See 8 C.C.R § 3205(c)(11)(E).

On December 7, the California Department of Public Health (“CDPH”) issued updated guidance concerning the recommended quarantine period for individuals following a “close contact” exposure to someone with COVID-19. This guidance now aligns with comparable advice provided by the Centers for Disease Control and Prevention (“CDC”) on the same subject on December 2.

Now, both the CDC and CDPH advise as follows:

  • The quarantine period may end after the tenth day, so long as the individual did not present any symptoms associated with COVID-19 during the quarantine period; or
  • The quarantine period may end after the seventh day if: (1) the individual did not present any symptoms associated with COVID-19 during the quarantine period; (2) the individual was tested for COVID-19 no earlier than the fifth day following close contact exposure; and (3) the test produced a negative result.

Despite the fact that both the CDC and CDPH revised their respective recommended quarantine periods, newly adopted Cal/OSHA regulations still require a 14-day quarantine period following a COVID-19 exposure. (See 8 C.C.R. 3205(c)(10)(B).) Therefore, Liebert Cassidy Whitmore recommends that employers continue to adhere to the Cal/OSHA regulatory requirements and require that employees with close contact exposures observe the full 14-day quarantine period. If the Cal-OSHA regulations are modified to be consistent with the CDC and CDPH, we will let employers know of the change immediately.

Furthermore, local health orders may also require that individuals with close contact exposure quarantine for 14 days.  As always, employers should follow the most restrictive requirements applicable in their jurisdiction.

Liebert Cassidy Whitmore attorneys are available to assist employers that have any questions about the new CDPH recommendations.

On December 7, the California Department of Public Health (“CDPH”) issued updated guidance concerning the recommended quarantine period for individuals following a “close contact” exposure to someone with COVID-19. The CDPH guidance now aligns with the Centers for Disease Control and Prevention’s (“CDC”) guidance issued on the same subject on December 2.

Now, both the CDC and CDPH advise as follows:

  • The quarantine period may end after the tenth day, so long as the individual did not present any symptoms associated with COVID-19 during the quarantine period; or
  • The quarantine period may end after the seventh day if: (1) the individual did not present any symptoms associated with COVID-19 during the quarantine period; (2) the individual was tested for COVID-19 no earlier than the fifth day following close contact exposure; and (3) the test produced a negative result. The CDPH notes that this option is not recommended for persons who are in contact with individuals at high-risk for severe disease from COVID-19, or for those who work in high-risk settings.

The CDPH updated guidance states that public health authorities may choose to maintain the 14-day quarantine period, especially in settings where even a small risk of post-quarantine transmission could result in secondary clusters.

Despite the fact that both the CDC and CDPH revised their respective general recommended quarantine periods, newly adopted Cal/OSHA regulations still require a 14-day quarantine period following a COVID-19 exposure. (See 8 C.C.R. 3205(c)(10)(B).)  Further, the CDPH “COVID-19 and Reopening In-Person Learning Framework for K-12 Schools in California, 2020-2021 School Year” still requires that K-12 public school districts implement the 14-day quarantine period when a student or staff member has had close contact with a COVID-19 case.   This would also apply to students at high schools on community college campuses.  Moreover, for districts operating an early education center, the CDPH “COVID-19 Case and Contact Management within Child Care Facilities” also states that negative test results will not shorten 14-day exclusion/quarantine period for exposed people.

Therefore, Liebert Cassidy Whitmore recommends that districts continue to adhere to the Cal/OSHA regulatory requirements and the CDPH requirements for K-12 school districts and early education centers and require that employees and students with close contact exposures observe the full 14-day quarantine period. If the Cal-OSHA regulations and CDPH guidance are modified to be consistent with the broader CDC and CDPH guidance, we will notify districts of the change.

Furthermore, local health orders may also require that individuals with close contact exposure quarantine for 14 days.  As always, districts should follow the most restrictive requirements applicable in their jurisdiction.

Liebert Cassidy Whitmore attorneys are available to assist employers that have any questions about the new CDPH recommendations.

Given the recent news coverage concerning COVID-19 vaccines and the government’s distribution plan for such vaccines, many of our clients have inquired whether it will be permissible to require school and community college district employees be vaccinated for COVID-19. This question is important from a public health perspective, complicated from a legal one, and almost certain to create controversy.[1]

This bulletin is intended to provide a high-level summary of our current legal analysis[2] on this issue, including on the following subjects: (1) the permissibility of requiring COVID-19 vaccinations; and (2) the exceptions to a vaccination requirement.

While this bulletin addresses each of these subjects in greater depth, Liebert Cassidy Whitmore’s general position on the subjects is as follows:

(1) It is seemingly permissible for districts to require that employees be vaccinated for COVID-19, so long as the requirement is narrowly tailored to cover only those employees who report to school worksites or facilities and who would pose a direct threat to the health and safety of others if not vaccinated; and

(2)  Districts must engage employees with qualified disabilities or sincerely held religious beliefs[3] in a good faith accommodations process to determine whether they can be accommodated in such a way that will not pose a direct threat to the health and safety of others or an undue hardship on the district.

Is It Permissible for School and Community College Districts to Require that Employees be Vaccinated for COVID-19?

Under the California Occupational Safety and Health Act, districts must provide their employees a healthy and safe workplace. To comply with this requirement, districts likely possess authority to establish legitimate health and safety standards, policies, and requirements.

However, the authority to require vaccinations is limited, even where a district’s actions are legitimately related to protecting the health and safety of its workplace. Federal and state laws, including the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Fair Employment and Housing Act (“FEHA”)[4], require that mandatory vaccinations address the following:

(1)  Be job-related and consistent with the district’s business necessity;

(2) Extend protections to employees who, because of a disability or religious belief, are unable or unwilling to be vaccinated; and

(3) Provide employees an accommodations process to determine whether they can perform their essential job functions in a way that does not pose a threat to the health and safety of the district’s workplace or impose an undue hardship on the district and its operations.

EEOC Guidance on the Permissibility of Requiring Employees to Receive Vaccinations

To date, the Equal Employment Opportunity Commission (“EEOC”), which enforces both the ADA and Title VII, has not specifically answered the question concerning the permissibility of requiring COVID-19 vaccinations. However, the EEOC has provided a framework by which to analyze the question.

That EEOC framework provides that employers may not “compel all of [their] employees to take the vaccine regardless of their medical conditions or their religious beliefs during a pandemic.”[5] This implies that districts possess authority to require vaccination for employees who do not have a qualifying disability or a sincerely held religious belief to the extent it is job-related and consistent with business necessity, as further discussed below.

Job-Relatedness and Consistency with Business Necessity

As a threshold matter, a district may not require vaccinations unless doing so is “job-related and consistent with business necessity.”[6] In order to satisfy this standard, a district must establish that it has a reasonable belief, based on objective evidence, that an employee will pose a “direct threat” to the health and safety of the workplace absent such a vaccination.

In the present public health emergency, the EEOC concluded that COVID-19 presents a significant risk of substantial harm to the health and safety of the workplace and that COVID-19 satisfies the direct threat standard under the ADA.[7] Schools likely may rely on such guidance in order to require vaccination for COVID-19 because of the potential threat that employees pose to the workplace if not vaccinated.

While the EEOC guidance suggests that districts seemingly possess authority to require vaccinations for their employees, the EEOC also limits the scope of such authority.  The EEOC recognizes that employees with qualifying disabilities under the ADA and employees with sincerely held religious beliefs under Title VII are entitled to certain statutory protections.[8] These protections entitle qualified employees to an accommodations process under which the district must determine whether there is a reasonable accommodation that will allow the employees to continue to perform their essential job functions despite their inability or unwillingness to vaccinate.

Which Employees May be Entitled to an Accommodations Exempting Them from the Vaccination Requirements?

EEOC guidance provides that, under the ADA, an employer must provide a “reasonable accommodation”[9] to employees with qualified disabilities that prevents them from safely receiving a vaccine.[10] With respect to Title VII, the EEOC provides that an employer must provide a reasonable accommodation to employees who sincerely hold religious beliefs that preclude them from being vaccinated.[11]

However, the EEOC also provides that a district is not required to provide an accommodation if doing so would compromise the health and safety of the district’s workplace or if the accommodation would present an “undue hardship” to the district.[12] To the extent that an unvaccinated employee is not able to perform work remotely or outside of regular working hours, a district may reasonably determine that such an employee poses a direct threat to the health and safety of the workplace, and is therefore unqualified for a workplace accommodation under the ADA[13], Title VII and the FEHA.[14] However, the district must still make an individualized assessment as to the cost and difficulty of providing the employee an accommodation outside of the workplace in order to determine whether such accommodation would impose an undue hardship on the district.[15]

Should a district receive a request for a medical accommodation under the ADA or religious accommodation under Title VII, the district should—as a matter of policy—require that the employee produce supporting information substantiating the employee’s qualifying disability or sincerely held religious belief and that such disability or religious belief precludes their vaccination.[16] If the employee does not cooperate with a district’s reasonable request for such supporting information, the district may deny the employee’s request.

Individualized Assessment for Reasonable Accommodations

If a district determines that an employee qualifies for protection under either the ADA or Title VII, the district must analyze potential accommodations, taking into account the nature of the employee’s disability or religiosity, the health and safety threat posed by COVID-19, the conditions of the employee’s job, and the district’s budgetary and operational circumstances.

In the case of an employee who cannot be vaccinated because of a qualifying disability or sincerely held religious belief, a district should consider accommodations that will allow the unvaccinated employee to perform their essential job functions and will impose neither:

(1)   A direct threat to the health and safety of the district’s workplace and employees; nor

(2)   An undue hardship on the district.

Given these significant limitations, a district should, at a minimum, consider the following accommodations:

(1)  Providing the employee the opportunity to telework from a remote location other than an district worksite or facility; and

(2)  Providing the employee a modified work schedule that would permit the employee to work during hours when there are no other unvaccinated employees in the district worksite or facility[17].

These accommodations would protect both the employee from the risk of infection as well as other employees, students, parents and other members of the district community who may be exposed to the virus.

Other accommodations, such as requiring the use of personal protective equipment (“PPE”) and implementing increased social distancing measures, may not remove the direct threat posed by an unvaccinated employee and are likely not reasonable.

Conclusion Regarding Schools’ Authority to Require COVID-19 Vaccinations under the ADA and Title VII 

While the EEOC states that employers covered by the ADA and Title VII may not “compel all of [their] employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic”[18], given the direct threat of COVID-19 to the health and safety of employees, districts seemingly possess sufficient authority to require COVID-19 vaccinations for all employees who do not have a qualifying disability under the ADA or a sincerely held religious belief under Title VII and who report to work at school worksites and facilities.

What are District Bargaining Obligations Should They Wish to Require COVID-19 Vaccinations?

In addition to the substantive limitations under the ADA, Title VII, and the FEHA, school and community college districts that want to require that employees be vaccinated must also navigate the bargaining obligations set forth under the Education Employment Relations Act (“EERA”).[19] To date, the Public Employment Relations Board (“PERB”), which enforces the EERA, has not issued guidance or a decision concerning bargaining obligations related to an agency’s decision requiring a COVID-19 vaccination of its represented employees.

Under the EERA, districts must provide employee organizations notice and an opportunity to bargain any decision that directly relates to a matter within the scope of representation, and must do so before making such a decision.  PERB case law interpreting the EERA provides districts a limited emergency exception to the statutory bargaining obligations. The exception permits agencies, in certain circumstances requiring immediate administrative action, to make a decision that affects a matter within the scope of representation before providing employee organizations notice of the decision or an opportunity to bargain the decision.  However, the exception is very narrow and may only be used where the district can “establish a compelling operational/business necessity as justification for acting unilaterally before completing its bargaining obligations. The employer must demonstrate ‘an actual financial emergency which leaves no real alternative to the action taken and allows no time for meaningful negotiations before taking action.’”[20]  Where the emergency exception is properly applied, agencies must still bargain the underlying decision, but may do so after the decision is made.

In the absence of PERB guidance or a decisional law to the contrary, it is likely that mandatory vaccinations for COVID-19 are within the scope of representation and that districts must bargain a decision to require that employees be vaccinated for COVID-19 before implementing such a decision. However, it is possible that PERB could conclude that vaccinations are either a necessity for some or all of an agency’s employees and outside the scope of representation and therefore not subject to bargaining or that a decision requiring vaccinations is a legitimate emergency and that an agency may bargain the decision requiring vaccinations after adopting and implementing the decision.

However, because the law concerning this issue is unsettled, the safest course of action is for districts to bargain over the decision to require vaccinations. As such, districts that are interested in requiring vaccinations should reach out to the district’s labor organizations to begin the negotiations process as soon as possible, even though vaccines are not likely to be widely available for all employees until the spring.  We recommend speaking with counsel about whether any exceptions to bargaining obligations may be applicable.

Conclusion

Until the federal and state agencies responsible for enforcing the statutory schemes implicated by the question of mandatory vaccinations issue guidance directly address this question, Liebert Cassidy Whitmore advises districts that are interested in requiring the COVID-19 vaccination for their employees to undertake the following actions:

(1) Limit the scope or applicability of such decision to employees who report to district campuses or facilities and who would pose a direct threat to the health and safety of others if not vaccinated (i.e., exclude employees who exclusively telework);

(2) Offer a good faith interactive process to any employees who, because of qualified disabilities under either the ADA or the FEHA, cannot receive a vaccination;

(3) Offer a good faith interactive process to any employees who, because of an established sincerely held religious belief, under either Title VII or the FEHA are not willing to receive a vaccination;

(4) Provide information to all employees who are subject to the vaccination requirement concerning the benefits of the vaccine; and

(5) Notify employee organizations and engage in negotiations or contact labor counsel to discuss bargaining obligations and any possible exceptions from such obligations as soon as possible.

Liebert Cassidy Whitmore attorneys are available to assist schools that have any questions about this guidance.

 

[1] A separate, forthcoming Special Bulletin will address student vaccinations.

[2] The analysis provided in this special bulletin is current as of this writing, but may change as the circumstances change and as the agencies responsible for enforcing the pertinent statutes provide guidance on this subject.

[3] Religious schools may limit employment based on religious belief.  As a result, this requirement may not apply to religious schools.

[4] The Department of Fair Employment and Housing enforces the FEHA, which prohibits discrimination on the bases of both disabilities and religious beliefs. (See Gov. Code § 12940 subd. (a).) While the DFEH has not provided any specific guidance concerning the permissibility of requiring that employees be vaccinated for COVID-19, it is likely that the DFEH will follow the guidance provided by the Equal Employment Opportunity Commission (“EEOC”) on this question given the similar substantive requirements under FEHA, the ADA and Title VII.  Please note that schools incorporated as religious non-profits are not subject to the FEHA but must comply with the ADA and Title VII, though there are important exceptions.

[5] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” III,B.13., https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)

[6] 42 U.S.C. § 12113.

[7] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)(providing that “[b]ased on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard.”); See also 29 C.F.R. § 1630.2 subd. (r).

[8] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)

[9] The ADA requires employers to provide reasonable accommodations for known limitations of applicants and employees with disabilities. (See 42 U.S.C. § 12112 subd. (b)(5)(A).)

[10] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)

[11] The EEOC authorizes public agencies to request that the employee produce supporting information to establish that the employee’s religious belief or practice is sincerely held. See EEOC “Section 12 Religious Discrimination” https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination (Uploaded on July 22, 2008), See also EEOC “EEOC Informal Discussion Letter,” https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-254 (Uploaded on December 5, 2012; Last updated on January 10, 2013.)

[12] 42 U.S.C. § 12112 subd. (b)(5)(4) (it is a form of discrimination to fail to provide a reasonable accommodation “unless such covered entity can demonstrate that the accommodation would impose an undue hardship . . .”)

[13] EEOC “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act” at 38, 8 FEP Manual (BNA) 405:7601 (2002) https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#N_39 (Uploaded on October 17, 2002.)

[14] We believe that the same analysis would disqualify an employee under the FEHA as it would under the ADA and Title VII.

[15] For the ADA, see 42 U.S.C. § 12111 subd. (10) (defining “undue hardship based on factors assessing cost and difficulty); For Title VII, the undue hardship standard is much less rigorous, and only requires that the employer show only a “more than de minimis” cost or burden. See 9 C.F.R. § 1630.15 subd. (d).

[16] Under the ADA, the school should require that the employee provide written certification from the employee’s health care provider stating that the employee has a qualified disability and that the employee cannot safely take the vaccine because of the disability. See 29 C.F.R. § 1630.14 subd. (c); 29 C.F.R. § 1630.2 subd. (o)(3), and EEOC “Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations,” https://www.eeoc.gov/laws/guidance/enforcement-guidance-preemployment-disability-related-questions-and-medical (Uploaded on October 10, 1995.) Under Title VII, the school should require provide written supporting information verifying that the employee sincerely holds a religious belief and that the religious belief prevents their vaccination. This information need not be provided by clergy or a congregant, but may be provided by anyone with knowledge of the employee’s religious beliefs that preclude their vaccination.

[17] Note: The guidance regarding this possible accommodation assumes that individuals vaccinated for COVID-19 cannot transmit the virus to others. As of this writing, there is no public health guidance to support this assumption. Accordingly, schools should not provide this accommodation until there is additional guidance from public health authorities that vaccinated individuals cannot transmit the virus to others.

[18] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” III,B.13., https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)

[19] Gov. Code § 3540, et seq.

[20] Oakland Unified School District (1994) PERB Decision No. 1045 (Oakland)

Given the recent news coverage concerning COVID-19 vaccines and the government’s distribution plan for such vaccines, many of our public agency clients have inquired whether it will be permissible to require that agency employees be vaccinated for COVID-19. This question is important from a public health perspective, complicated from a legal one, and almost certain to create controversy.

This bulletin is intended to provide a high-level summary of our current legal analysis[1] on this issue, including on the following subjects: (1) the permissibility of requiring COVID-19 vaccinations; (2) the exceptions to a vaccination requirement; and the (3) bargaining obligations related to requiring a vaccination.

While this bulletin addresses each of these subjects in greater depth, Liebert Cassidy Whitmore’s general position on the subjects is as follows:

(1)  It is seemingly permissible for public agencies to require that employees be vaccinated for COVID-19, other  so long as the requirement is narrowly tailored to cover only those employees who report to agency worksites or facilities and who would pose a direct threat to the health and safety of others if not vaccinated;

(2)  Public agencies must engage employees with qualified disabilities or a sincerely held religious beliefs in a good faith accommodations process to determine whether they can be accommodated in such a way that will not pose a direct threat to the health and safety of others or an undue hardship on the agency; and

(3)  The vaccination requirement may be either outside the scope of representation or subject to the emergency exception under the Meyers-Milias-Brown Act (“MMBA”), but until those propositions are settled, agencies that want to require a vaccine for their represented employees should consider providing notice and an opportunity to bargain the requirement with affected employee organizations.

Is It Permissible for a Public Agency to Require that Employees be Vaccinated for COVID-19?

Under the California Occupational Safety and Health Act, public agencies must provide their employees a healthy and safe workplace. To comply with this requirement, public agencies possess authority to establish legitimate health and safety standards, policies, and requirements.

However, the authority to require vaccinations is limited, even where a public agency’s actions are legitimately related to protecting the health and safety of its workplace. Federal and state laws, including the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Fair Employment and Housing Act (“FEHA”)[2], require that mandatory vaccinations address the following:

(1)  Be job-related and consistent with the agency’s business necessity;

(2) Extend protections to employees who, because of a disability or religious belief, are unable or unwilling to be vaccinated; and

(3) Provide such employees an accommodations process to determine whether they can perform their essential job functions in a way that does not pose a threat to the health and safety of the agency’s workplace or impose an undue hardship on the agency and its operations.

EEOC Guidance on the Permissibility of Requiring Employees to Receive Vaccinations

To date, the Equal Employment Opportunity Commission (“EEOC”), which enforces both the ADA and Title VII, has not specifically answered the question concerning the permissibility of requiring COVID-19 vaccinations. However, the EEOC has provided a framework by which to analyze the question.

That EEOC framework provides that agencies may not “compel all of [their] employees to take the vaccine regardless of their medical conditions or their religious beliefs during a pandemic.”[3] This implies that agencies possess authority to require vaccination for employees who do not have a qualifying disability or a sincerely held religious belief to the extent it is job-related and consistent with business necessity, as further discussed below.

Job-Relatedness and Consistency with Business Necessity

As a threshold matter, a public agency may not require vaccinations unless doing so is “job-related and consistent with business necessity.”[4] In order to satisfy this standard, an agency must establish that it has a reasonable belief, based on objective evidence, that an employee will pose a “direct threat” to the health and safety of the workplace absent such a vaccination.

In the present public health emergency, the EEOC concluded that COVID-19 presents a significant risk of substantial harm to the health and safety of the workplace and that COVID-19 satisfies the direct threat standard under the ADA.[5] Public agencies likely may rely on such guidance in order to require vaccination for COVID-19 because of the potential threat that employees pose to the workplace if not vaccinated.

While the EEOC guidance suggests that agencies seemingly possess authority to require vaccinations for their employees, the EEOC also limits the scope of such authority.  The EEOC recognizes that employees with qualifying disabilities under the ADA and employees with sincerely held religious beliefs under Title VII are entitled to certain statutory protections.[6] These protections entitle qualified employees to an accommodations process under which the agency must determine whether there is a reasonable accommodation that will allow the employees to continue to perform their essential job functions despite their inability or unwillingness to vaccinate.

Which Employees May be Entitled to an Accommodations Exempting Them from the Vaccination Requirements?

EEOC guidance provides that, under the ADA, an employer must provide a “reasonable accommodation”[7] to employees with qualified disabilities that prevents them from safely receiving a vaccine.[8] With respect to Title VII, the EEOC provides that an employer must provide a reasonable accommodation to employees who sincerely hold religious beliefs that preclude them from being vaccinated.[9]

However, the EEOC also provides that a public agency is not required to provide an accommodation if doing so would compromise the health and safety of the agency’s workplace or if the accommodation would present an “undue hardship” to the agency.[10] To the extent that an unvaccinated employee is not able to perform work remotely or outside of regular working hours, an agency may reasonably determine that such an employee poses a direct threat to the health and safety of the workplace, and is therefore unqualified for a workplace accommodation under the ADA[11], Title VII and the FEHA.[12] However, the agency must still make an individualized assessment as to the cost and difficulty of providing the employee an accommodation outside of the workplace in order to determine whether such accommodation would impose an undue hardship on the agency.[13]

Should a public agency receive a request for a medical accommodation under the ADA or religious accommodation under Title VII, the agency should, as a matter of policy, require that the employee produce supporting information substantiating the employee’s qualifying disability or sincerely held religious belief and that such disability or religious belief precludes their vaccination.[14] If the employee does not cooperate with an agency’s reasonable request for such supporting information, the public agency may deny the employee’s request.

Individualized Assessment for Reasonable Accommodations

If an agency determines that an employee qualifies for protection under either the ADA or Title VII, the agency must analyze potential accommodations, taking into account the nature of the employee’s disability or religiosity, the health and safety threat posed by COVID-19, the conditions of the employee’s job, and the agency’s budgetary and operational circumstances.

In the case of an employee who cannot be vaccinated because of a qualifying disability or sincerely held religious belief, a public agency should consider accommodations that will allow the unvaccinated employee to perform their essential job functions and will impose neither:

(1)   A direct threat to the health and safety of the agency’s workplace and employees; nor

(2)   An undue hardship on the agency.

Given these significant limitations, an agency should, at a minimum, consider the following accommodations:

(1)  Providing the employee the opportunity to telework from a remote location other than an agency worksite or facility; and

(2)  Providing the employee a modified work schedule that would permit the employee to work during hours when there are no other unvaccinated employees in the agency worksite or facility[15].

These accommodations would protect both the employee from the risk of infection as well as other employees and members of the public who may be exposed to the virus because of transmission by the unvaccinated employee.

Other accommodations, such as requiring the use of personal protective equipment (“PPE”) and implementing increased social distancing measures, may not remove the direct threat posed by an unvaccinated employee and are likely not reasonable.

Conclusion Regarding Public Agencies’ Authority to Require COVID-19 Vaccinations under the ADA and Title VII       

While the EEOC states that employers covered by the ADA and Title VII may not “compel all of [their] employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic”[16], given the direct threat of COVID-19 to the health and safety of agency workplaces, public agencies seemingly possess sufficient authority to require COVID-19 vaccinations for all employees who do not have a qualifying disability under the ADA or a sincerely held religious belief under Title VII and who report to work at agency worksites and facilities.

What are Public Agency Bargaining Obligations Should They Wish to Require COVID-19 Vaccinations?

In addition to the substantive limitations under the ADA, Title VII, and the FEHA, public agencies that want to require that employees be vaccinated must also navigate the bargaining obligations set forth under the Meyers-Milias-Brown Act (“MMBA”).[17] To date, the Public Employment Relations Board (“PERB”), which enforces the MMBA, has not issued guidance or a decision concerning bargaining obligations related to an agency’s decision requiring a COVID-19 vaccination of its represented employees.

Under the MMBA, public agencies must provide employee organizations notice and an opportunity to bargain any decision that directly relates to a matter within the scope of representation, and must do so before making such a decision. However, the scope of representation does not include “consideration of the merits, necessity, or organization” of any service provided by law.[18] Therefore, if the COVID-19 vaccination is determined to be a necessity for some or all of an agency’s employees, the vaccination requirement would be outside the scope of bargaining and an agency would only be obligated to negotiate the effects of the decision to require vaccination, as opposed to the decision itself. The MMBA also provides public agencies a limited emergency exception to the statutory bargaining obligations.[19] The exception permits agencies, in certain circumstances requiring immediate administrative action, to make a decision that affects a matter within the scope of representation before providing employee organizations notice of the decision or an opportunity to bargain the decision. Where the emergency exception is properly applied, agencies must still bargain the underlying decision, but may do so after the decision is made.

In the absence of PERB guidance or a decisional law to the contrary, it is likely that mandatory vaccinations for COVID-19 are within the scope of representation and that public agencies must bargain a decision to require that employees be vaccinated for COVID-19 before implementing such a decision. However, it is possible that PERB could conclude that vaccinations are either a necessity for some or all of an agency’s employees and outside the scope of representation and therefore not subject to bargaining[20] or that a decision requiring vaccinations is a legitimate emergency and that an agency may bargain the decision requiring vaccinations after adopting and implementing the decision.

However, because the law concerning this issue is unsettled, the safest course of action is for public agencies to bargain over the decision to require vaccinations. As such, agencies that are interested in requiring vaccinations should reach out to the agencies’ labor organizations to begin the negotiations process as soon as possible, even though vaccines are not likely to be widely available for all employees until the spring.

Conclusion

Until the federal and state agencies responsible for enforcing the statutory schemes implicated by the question of mandatory vaccinations issue guidance directly address this question, Liebert Cassidy Whitmore advises public agencies that are interested in requiring the COVID-19 vaccination for their employees undertake the following actions:

(1) Limit the scope or applicability of such decision to employees who report to agency worksites or facilities and who would pose a direct threat to the health and safety of others if not vaccinated (i.e., exclude employees who exclusively telework);

(2) Offer a good faith interactive process to any employees who, because of qualified disabilities, under either the ADA or the FEHA cannot receive a vaccination;

(3) Offer a good faith interactive process to any employees who, because of an established sincerely held religious belief, under either Title VII or the FEHA is not willing to receive a vaccination;

(4) Provide information to all employees who are subject to the vaccination requirement concerning the benefits of the vaccine; and

(5) Contact labor counsel to discuss bargaining obligations and any possible exceptions from such obligations as soon as possible.

Liebert Cassidy Whitmore attorneys are available to assist public agencies that have any questions about this guidance.

 

[1] The analysis provided in this special bulletin is current as of this writing, but may change as the circumstances change and as the agencies responsible for enforcing the pertinent statutes provide guidance on this subject.

[2] The Department of Fair Employment and Housing enforces the FEHA, which prohibits discrimination on the bases of both disabilities and religious beliefs. (See Gov. Code § 12940(a).) While the DFEH has not provided any specific guidance concerning the permissibility of requiring that employees be vaccinated for COVID-19, it is likely that the DFEH will follow the guidance provided by the Equal Employment Opportunity Commission (“EEOC”) on this question given the similar substantive requirements under FEHA, the ADA and Title VII.

[3] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, III,B.13., https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)

[4] 42 U.S.C. § 12113.

[5] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.) (providing that “[b]ased on guidance of the CDC and public health authorities as of March 2020, the COVID-19 pandemic meets the direct threat standard.”); See also 29 C.F.R. § 1630.2(r).

[6] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)

[7] The ADA requires employers to provide reasonable accommodations for known limitations of applicants and employees with disabilities. (See 42 U.S.C. § 12112(b)(5)(A).)

[8] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)

[9] The EEOC authorizes public agencies to request that the employee produce supporting information to establish that the employee’s religious belief or practice is sincerely held. See EEOC “Section 12 Religious Discrimination” https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination (Uploaded on July 22, 2008), See also EEOC “EEOC Informal Discussion Letter”, https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-254 (Uploaded on December 5, 2012; Last updated on January 10, 2013.)

[10] 42 U.S.C. § 12112(b)(5)(4) (it is a form of discrimination to fail to provide a reasonable accommodation “unless such covered entity can demonstrate that the accommodation would impose an undue hardship . . .”)

[11] EEOC “Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act” at 38, 8 FEP Manual (BNA) 405:7601 (2002) https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#N_39 (Uploaded on October 17, 2002.)

[12] We believe that the same analysis would disqualify an employee under the FEHA as it would under the ADA and Title VII.

[13] For the ADA, see 42 U.S.C. § 12111(10) (defining “undue hardship based on factors assessing cost and difficulty); For Title VII, the undue hardship standard is much less rigorous, and only requires that the employer show only a “more than de minimis” cost or burden. See 9 C.F.R. § 1630.15(d).

[14] Under the ADA, the agency should require that the employee provide written certification from the employee’s health care provider stating that the employee has a qualified disability and that the employee cannot safely take the vaccine because of the disability. See 29 C.F.R. § 1630.14(c); 29 C.F.R. § 1630.2(o)(3), and EEOC “Enforcement Guidance: Pre-employment Disability-Related Questions and Medical Examinations,” https://www.eeoc.gov/laws/guidance/enforcement-guidance-preemployment-disability-related-questions-and-medical (Uploaded on October 10, 1995.) Under Title VII, the agency should require provide written supporting information verifying that the employee sincerely holds a religious belief and that the religious belief prevents their vaccination. This information need not be provided by clergy or a congregant, but may be provided by anyone with knowledge of the employee’s religious beliefs that preclude their vaccination.

[15] Note: The guidance regarding this possible accommodation assumes that individuals vaccinated for COVID-19 cannot transmit the virus to others.  As of this writing, there is not public health guidance to support this assumption. Accordingly, agencies should not provide this accommodation until there is additional guidance from public health authorities that vaccinated individuals cannot transmit the virus to others.

[16] EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act”, III,B.13., https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act (Last updated on March 21, 2020.)

[17] Gov. Code § 3500, et seq.

[18] Gov. Code § 3504.

[19] Gov. Code § 3504.5 (b).

[20] Gov. Code § 3504.

On December 3, in order to slow the unprecedented rise in the rate of increase in COVID-19 cases and hospitalizations in the state, Governor Gavin Newsom announced a new Regional Stay At Home Order (the “Order”).

The Order will take effect on December 5, 2020 in any region of the state, as designated by the California Department of Public Health (“CDPH”), where intensive care unit (“ICU”) bed capacity is less than 15%. Should a region’s ICU’s bed capacity drop below that threshold, the Order would become operative, prohibiting non-essential activities by individuals and requiring that most businesses either close entirely or modify their operations to remain open.

While the Order will have a profound effect on the individuals and businesses in the regions where the Order becomes operative, the Order expressly exempts critical infrastructure sectors, which includes government operations. As a result, the Order should not affect public employers that are performing essential government operations.

Public employers should continue to ensure that worksites and facilities are healthy and safe workplaces and that employees who are able to telework are permitted to do so.  Those employees who are unable to telework shall observe all applicable health and safety protocols, including, but not limited to, observing face covering requirements, proper social distancing, and hand hygiene protocol.

Liebert Cassidy Whitmore attorneys are available to assist public employers that have any questions about the new Order.

On December 2, the Centers for Disease Control and Prevention (“CDC”) issued updated guidance concerning the recommended quarantine period for individuals following a “close contact” exposure to someone with COVID-19. The guidance reduces the recommended quarantine period from 14 days to either 10 days or seven days, depending on whether the individual tested negative for COVID-19 during the quarantine period.

The CDC guidance provides that the quarantine may end after the tenth day, so long as the individual did not present any symptoms associated with COVID-19 during the quarantine period. Additionally, the CDC provides that the quarantine may end after the seventh day if the individual was tested for COVID-19 no earlier than the fifth day following close contact exposure, the test produced a negative result, and the individual did not present any symptoms associated with COVID-19 during the quarantine period. Under both circumstances, the CDC provides that the individual must continue monitoring for symptoms associated with COVID-19 and wear a face covering through the standard 14 day quarantine period.

However, despite that the CDC revised downward its recommended quarantine period following a close contact exposure, state public health authorities, including the California Department of Public Health (“CDPH”), have not yet provided comparable guidance. The CDPH guidance currently provides that “workers should quarantine at home 14 days after the last know close contact with the case patient.”

Until such time as the CDPH revises its guidance to align with the CDC guidance, Liebert Cassidy Whitmore recommends that public agencies and nonprofits continue to adhere to the CDPH guidance and require that employees with close contact exposures observe the full 14 day quarantine period. Furthermore, local health orders may also require that individuals with close contact exposure quarantine for 14 days. As always, public agencies and nonprofits should follow the most restrictive requirements applicable in their jurisdiction.

Liebert Cassidy Whitmore attorneys are available to assist public agencies and nonprofits that have any questions about the new CDC recommendations.

This year saw perhaps the largest public protests in American history, one of the most contentious election years, vast public use of social media to achieve political and social goals, and harsh debate on whether government mandates designed to combat the pandemic infringe constitutional rights, including the right to free expression.  Free speech challenges rose to a top priority for public employers and educators, and Courts in 2021 will set groundbreaking precedent in this area.

The following are five significant areas of First Amendment law in which Courts will likely set new precedent in 2021.

  1. Public Employee Speech on Social Media:

What if an agency employee makes public statements on Twitter that harshly and unfairly criticize the agency’s response to the pandemic?  What if a police officer repeatedly jokes on Facebook that he favors harsh use of force against protestors or that he personally might not protect all members of the community in the same way?  Case law will likely develop in 2021 that clarifies when and how public employers can take action in response to such conduct, and when an employee can rely on their First Amendment rights.

Generally, public employees only have limited constitutional free speech rights against their employers.  The United States Supreme Court has ruled that public employees can sue their employers for retaliation under the First Amendment if, among other things, they spoke on a matter of “public concern,” spoke in a way that was not pursuant to their “official duties,” and suffered an “adverse employment action” as a result.  Even if the employee’s claim meets these tests, the employer can still prevail if the reasons for the adverse action satisfy a balancing test between the government interests of the employer and the speech rights of the employee.

In a pending case, Moser v. Las Vegas Metropolitan Police Department, the United States Court of Appeals for the Ninth Circuit (covering Western states including California) will likely clarify how courts should conduct the last element of the test for protection, i.e., the balancing test between government interests and employee speech rights.  In Moser, a Las Vegas police officer was shot and injured when off duty, and the Police Department several days later arrested a suspect.  Plaintiff Officer Moser, employed as a SWAT team sniper for the Department, stated on Facebook he thought it was “a shame” that the suspect “didn’t have a few holes in him.”  The Department believed the officer’s social media statement negatively impacted the agency, and it implemented a disciplinary transfer of the Plaintiff out of the SWAT position to another assignment.  He sued for infringement of his First Amendment rights.

The Ninth Circuit Court of Appeals heard oral argument on September 5, 2020 and questioning from the Court in part focused on whether an agency, to satisfy the balancing test, needed to show threatened or actual disruption of its operations.  The Court questioned counsel on why, regardless of whether co-workers or the public had complained, the employee’s statements on social media in themselves could not show the employee lacked qualification for their job or assignment and in that way tip the balance in the agency’s favor.  The Court signaled that its decision in the case might set precedent more favorable to public employers with regard to the balancing test.  The Ninth Circuit’s decision in the case will issue any day.

  1. Academic Freedom:

Public employee free speech questions take on added complexities for employees serving as college and university professors.  In the Ninth Circuit (again, the appellate judicial district including California), Courts apply a slightly different rule for First Amendment speech protection than the rule for public employees generally.  A professor’s or other educator’s speech as part of his or her “scholarship or teaching” in fact has First Amendment protection, even though it constitutes speech pursuant to the individual’s “official duties.”  (Under the landmark decision Garcetti v. Ceballos, a public employee’s speech pursuant to his or her “official duties” normally lacks First Amendment protection.)  The United States Supreme Court, however, has not decided yet whether the Ninth Circuit has correctly implemented this rule, or instead whether – as with other employee “official duties” speech – speech as part of scholarship or teaching should also lack First Amendment protection so that a public employer can freely discipline an employee for such speech.

The question may be decided in a case currently pending in the U.S. Court of Appeals for the Sixth Circuit, which covers Ohio, Michigan, Kentucky, and Tennessee.  In Meriwether v. Trustees of Shawnee State University, a professor of political science and philosophy alleges that he received a written warning in violation of his First Amendment rights after he struggled in class to interact with a transgender student who asked him to address her in class by her appropriate gender pronoun.  Meriwether argues that his sincerely held Christian beliefs precluded him from referring to the student as “she” or “her.”  The university enforced the applicable non-discrimination policy against the professor, taking the position that he had created a hostile environment in his class for the transgender student.  Meriwether argued his own free speech rights prevented the university from disciplining him.  The trial court, however, rejected his claims and dismissed his complaint, reasoning that the gender pronouns by which he addressed his students in class constituted speech pursuant to his “official duties” for the university, and thus lack First Amendment protection.  On appeal, Meriwether has argued that the same rule applicable in California should apply in Ohio, in particular, that he in fact has free speech rights as part of his “scholarship” and “teaching.”

Once the Court of Appeals for the Sixth Circuit issues its decision in this case, the U.S. Supreme Court might take this case as an opportunity to clarify the law in this area and resolve the issue of whether the rule applicable in the Ninth Circuit, i.e., in California, is correct.  Meriwether has the support of a number of religious liberties groups, and his case has gained notoriety.  This may persuade the U.S. Supreme Court to take up the case to resolve the issue.

  1. Student Speech:

School districts, community college districts, and other public educators often face First Amendment issues when they seek to discipline students who post on social media inflammatory racist, sexist, homophobic, threatening, or otherwise cruel and injurious content.  Under the law federal courts have developed in the Ninth Circuit and a number of others, Courts look to whether the student’s expression has a sufficient “nexus” to the school, in particular whether it creates a disruption or threat of disruption that has a sufficient negative effect on the school’s operations.

The United States Court of Appeals for the Third Circuit, covering Pennsylvania and nearby states, has recently departed from this line of authority.  The Third Circuit has a track record of pro-free speech decisions in the context of education.  In two prominent cases from 2011, J.S. ex rel. Snyder v. Blue Mountain School District and Layshock ex rel. Layshock v. Hermitage School District, that Court ruled that constitutional protection applied to puerile and profane social media speech by students, even when it harshly mocked faculty and school administrators.  (Unlike for public employees, public school student speech does not need to be on a matter of “public concern” to have First Amendment protection.)

In the 2020 case B.L. v. Mahony Area School District, the Third Circuit held, as a matter of first impression, that existing legal rules which allow schools to punish students for sufficient actual or threatened disruption of the learning environment do not apply at all to “off-campus speech.”  The Court described this as “speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”  This definition appears to include much student speech that occurs on social media, even if it impacts the school’s operations.

In B.L., the student, frustrated at her lack of ability to advance in cheerleading, posted a short vulgar post to Snapchat dismissive of “school” and “cheer.”  The Third Circuit found that the post, created off campus on a Saturday, could not as a matter of constitutional law expose the student to discipline by the school district.  The school district, having lost the case at the appellate level, has asked the U.S. Supreme Court to review the case, arguing that the rule the Third Circuit has created is too extreme, and does not allow educators enough control over the educational environment.  Many organizations have joined in amicus curiae (i.e., “friend of the court”) briefing to urge the Supreme Court to take up the case.  There seems to be a fair prospect that the Court will in fact take this opportunity to clarify this area of the law.

  1. Speech Areas and Speech Codes on College and University Campuses:

A case pending before the U.S. Supreme Court will shed light on how easily students, employees, and members of the public can make First Amendment challenges to policies in educational institutions.  The opinion will have particular importance for institutions maintaining more stringent policies on “speech areas” or maintaining “speech codes.”

By way of background, some public higher education institutions maintain specific areas on campus where students, employees, and member of the public can engage in such activities as protests, leafleting, circulating petitions, and gatherings for other expressive purposes.  Courts have held, however, that public colleges and universities cannot maintain areas so small and remote that users of the areas cannot reach a sufficiently large audience.  Courts have also invalidated policies that impose many-day wait periods to gain access to the speech area or requiring substantial registration and approval processes prior to use.

“Speech codes” constitute campus rules that seek to avoid conflict and foster collegiality.  For example, they can prohibit students, faculty, and others from engaging in “offensive,” “un-civil,” or “harmful” speech.  Courts have struck down vague language and overbroad requirements in such codes as violating the First Amendment, reasoning that free expression on campus needs breathing space, that some protected expression does in fact lack civility because of the emotions invoked by many important issues, and that the speech codes overall present a chilling effect on free speech.

For someone to make a legal challenge a speech area policy or speech code however, they must have standing to sue.  To have standing, they must generally show they have suffered some type of injury and that their lawsuit will make a difference by correcting a deficient policy or practice of the institution.

The U.S. Supreme Court has taken up an important case, Uzuegbunam v. Preczewski, from Georgia in the Eleventh Circuit Court of Appeals, which will address when and how students have standing to challenge university and college policies.  In practice, some institutions, faced with a lawsuit by plaintiffs who claim that speech codes are improper or that speech area policies are invalid, will simply change the policies and make them more expansive.  Courts will, under the appropriate circumstances, then dismiss the lawsuits as moot, delivering a victory to the educational institution even though the institution may actually have had a constitutionally invalid policy in place.

This is what allegedly happened in the Uzuegbunam case.  A student sought to distribute religious literature and talk to his fellow students about religion outside the free speech areas at their university.  A campus official stopped him from doing so, citing the speech area policy.  Faced with a lawsuit by this student and another who sought to use the speech areas, the university changed the policy to make it broader.  Also, one of the students graduated.  The university moved to dismiss the case as moot, and the trial court granted the motion.  The Court of Appeals found no error, reasoning that that case was moot, and that the plaintiffs’ claims for nominal damages did not constitute a sufficient reason to keep the case alive.  As the losing parties, the plaintiffs could not obtain their attorneys’ fees from the university, even though they and their lawyers could potentially argue that the threat of a lawsuit was what really made the institution change its policies.  In asking the Supreme Court to review the case, plaintiffs argued, as they often do in these cases, that nothing will stop the university from reinstituting the same strict policies years later when the students had gone and no longer have standing to make a legal challenge.

The U.S. Supreme Court will hear argument in the case in 2021, and may issue a ruling that makes it easier for students to sue public colleges and universities, obtain attorneys’ fees awards, and obtain declaratory and injunctive relief.

  1. Social Media Platforms and Government-Hosted Speech:

The last year has seen extensive public debate on how far the right to censor should extend on social media, with some contending social media platforms suppress conservative views and some contending they do not do enough to combat hate speech and misinformation.  Case law will develop in 2021 further clarifying how the First Amendment applies both to the private companies that own and operate social media platforms and the government agencies that host speech on their own pages on those platforms.  Courts have applied different rules in these two contexts.

As to the private social media platforms, civil rights lawyers representing individuals who have posted content later removed by Facebook, Twitter, or YouTube, or who have been blocked by those sites, have argued that social media has such a prominent role in the everyday lives of the public that the First Amendment must provide users some protection from having views censored.  It is a fundamental rule of constitutional law, however, that the First Amendment does not apply to private companies, and the major social media organizations are all private.

Some fairly obscure precedent exists (for example, a  case from the 1940’s, Marsh v. Alabama, involving a privately owned “company town”) which establishes that sometimes the First Amendment does, in fact, extend to private actors.  But the U.S. Court of Appeals for the Ninth Circuit in California rejected that notion for social media in the case Prager University v. Google decided earlier this year.  Prager University did not seek review in the U.S. Supreme Court, but another case against social media companies, Lewis v. Google, is currently pending before the Ninth Circuit, and the plaintiff in that case, a political commentator removed from YouTube for controversial views, has asserted similar First Amendment theories.  The plaintiff may seek to present the issue to the U.S. Supreme Court, and litigants in other circuits may do so as well.

Having the First Amendment apply to social media companies, who have vast social and financial scope, would have far reaching consequences.  It remains an issue to watch, among other reasons for how Courts’ decision making will affect related areas.

Indeed, an important related area is whether and how the First Amendment applies to government-hosted commentary on social media.  Courts have begun to apply First Amendment strictures to government agencies that have their own presence on social media, albeit on platforms of private companies.  Examples include Facebook pages by police departments, or Twitter accounts by public universities.  A number of Courts have held that government actors have to abide by First Amendment standards in decisions whether to censor public comments or block users.  This constitutional rule limiting censorship applies even though those government agencies have to abide by the private social media company’s terms and conditions, which could in theory and under existing law, have restrictions incompatible with First Amendment norms.

The United States Supreme Court may weigh in next year on this issue of how the First Amendment applies to government-hosted social media.  The most notorious case of this nature is Trump v. Knight Institute, in which the Second Circuit Court of Appeals, which encompasses New York, held that President Trump violated the First Amendment by blocking some of his critics from access to his Twitter account.  The Court found that the public comment part of the account constituted a public forum in cyberspace, to which First Amendment free speech principles did apply.  The President has filed a petition for writ of certiorari with the U.S. Supreme Court, and the Court may indicate any day whether it has decided to hear the case.

Our firm regularly handles matters concerning free speech rights in education and public employment, and we will keep you apprised of developments in this area.

On November 19, 2020, pursuant to emergency rulemaking authority, the California Occupational Safety and Health Standards Board (“OSHSB”) adopted temporary regulations regarding measures that all employers must undertake in order to prevent the spread of COVID-19 in the workplace (“emergency regulations”).

The emergency regulations take effect today, November 30, 2020, and apply to all employers and places of employment, with very limited exceptions (such as businesses where all employees work remotely, or only one employee is employed who does not have contact with others).[1] Therefore, schools and colleges must take immediate action to ensure that their policies and practices conform to and comply with the new regulations. Most significantly, employers must prepare, implement, and maintain a written COVID-19 Prevention Program (“CPP”), as described below.

The emergency regulations supplement general and industry-specific guidance that the Division of Occupational Safety and Health (“Cal/OSHA”) has provided since the beginning of the present public health emergency.

 COVID-19 Prevention Program

School and community college districts are already required to implement many of the protocols in the COVID-19 Prevention Program, such as screening employees for COVID-19 symptoms, adopting physical distancing measures, requiring face coverings, cleaning and disinfecting procedures, and communicating to employees when there has been possible exposure to COVID-19 in the workplace.  However, the regulations require that the CPP include and address many other very specific issues.

In summary, the CPP must address each of the following eleven (11) subjects:

1) System for communicating to employees about the following subjects related to COVID-19:

(a) the symptoms associated with COVID-19;
(b) possible exposures;
(c) potential hazards related to COVID-19:
(d) the policies and procedures for providing COVID-19 related accommodations;
(e) information about COVID-19 testing.

2) Identification and evaluation of COVID-19 related hazards, including developing and implementing a system that provides for the following:

    • screening employees for symptoms associated with COVID-19;
    • responding to employees who present symptoms associated with COVID-19;
    • responding to individuals and employees who are present at the workplace who are positive for COVID-19; conducting an assessment of potential workplace hazards, such as areas where people congregate.

3) Investigating and responding to COVID-19 cases in the workplace, including developing a procedure that provides for the following:

      • the investigation of COVID-19 cases;
      • the determination of important information about possible workplace exposures related to the COVID-19 case;
      • the provision within one (1) business day of notice to employees who may have been exposed to the virus that causes COVID-19 (as required by Assembly Bill 685);
      • offer free COVID-19 testing to all employees who had potential exposure to the virus; and
      • the preservation and protection of confidential medical information pursuant to the Confidentiality of Medical Information Act (“CMIA”).

4) Correcting COVID-19 related hazards, including implementing policies and procedures to timely address unsafe or unhealthy workplace conditions.

5) Training of and instruction for employees, including on the following subjects:

(a) the symptoms associated with COVID-19;

(b) the school’s COVID-19 prevention policies and procedures;

(c) COVID-19 related benefits, including leaves rights;

(d) information about the transmission of the virus that causes COVID-19;

(e) information about physical distancing and the benefits of physical distancing;

(f) information about face coverings and the benefits of face coverings; and

(g) information about hand washing and hand hygiene and the benefits of hand washing and hand hygiene.

6) Physical distancing requirements and procedures to ensure that employees remain at least six (6) feet apart from one another, if possible.

7) Face covering requirements and the availability of face coverings for employees.

8) Site-specific engineering and administrative controls and procedures for the provision of personal protective equipment (“PPE”), including, but not limited to, the following:

(a) installing partitions between work stations where it is not possible to maintain the physical distancing requirement;

(b) increasing the supply of fresh air where possible;

(c) implementing cleaning and disinfecting procedures;

(d) evaluating the availability and adequacy of  handwashing locations; and

(e) evaluating the need for additional PPE.

9) Reporting, recordkeeping, and providing access to such reports and records, including the following:

  • reporting cases of COVID-19 to the local health department;
  • reporting disabling work-related COVID-19 illnesses to Cal/OSHA;
  • maintaining records of the steps that the school undertook to implement the CPP;
  • providing employees access to the CPP;
  • recording and tracking all COVID-19 cases with identifying information about the employee; and
  • providing employees access to the records of COVID-19 cases with identifying information removed.

10) Removal from worksites and facilities individuals who have COVID-19 or were exposed to the virus that causes COVID-19. 11) Minimum criteria to return to work for employees who have COVID-19.

The descriptions provided above summarize the information that schools must provide for in their CCPs, but are not a comprehensive summation of the regulatory requirements.

Significant Changes in the Law

Schools and colleges should take note the following regulatory requirements, which are likely to be new for most districts:

  • Districts must offer COVID-19 testing at no cost to employees, during their working hours, to all employees who had a potential COVID-19 exposure in the workplace.  The regulations define potential COVID-19 exposure as being within six (6) feet of a positive COVID-19 case (with or without a face covering) for a cumulative total of 15 minutes or greater in any 24 hour period within or overlapping with the “high-risk exposure period.”  The regulations define the “high-risk exposure period” as the following:
    • For persons who develop COVID-19 symptoms, the two (2) days before the symptoms develop until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
    • For persons who test positive for COVID-19 and never develop symptoms: from two (2) days before until 10 days after the specimen for their first positive test was collected.
  • Districts must continue to provide compensation to employees who may not report to work because they have COVID-19 or are under an isolation order issued by a local or state health official. While this requirement effectively constitutes a new leave benefit, the regulations expressly provide that employers may use an employee’s sick leave for this purpose.  The regulations do not address whether employers may require employees to use Emergency Paid Sick Leave, as provided for by the Families First Coronavirus Response Act (“FFCRA”).
  • Districts may not require a negative COVID-19 test for an employee to return to work.  However, the regulations do not prohibit schools from testing employees at regular intervals for COVID-19 consistent with California Department of Public Heath recommendations.

Protocol Where There are COVID-19 Outbreaks and Major Outbreaks

While not required as part of the CPP, the emergency regulations separately require that employers implement the following protocols in the event the there is a COVID-19 “outbreak” in the workplace, consisting of three (3) or more positive cases in a 14-day period:

    • Provide testing (immediately and one (1) week later) at no-cost to all employees who were present at the workplace during the outbreak period;
    • Require that all employees with COVID-19 and who were exposed to the virus that causes COVID-19 do not report to work for the requisite period of time;
    • Investigate the exposure, review the district’s prevention and outbreak control policies, and take corrective action as needed;
    • Document the district’s investigation of the exposure, policy review, and any corrective actions taken; and
    • Notify the local health department within 48 hours after knowledge of the outbreak.

The regulations also require employers implement additional protocols if there is an outbreak of 20 or more COVID-19 cases within a 30-day period until there are no new cases for a 14-day period, including conducting twice-weekly testing and evaluating whether respiratory protection should be required and whether the employer’s operations should cease.

 Conclusions

Given that the emergency regulations took effect today, November 30, employers must immediately adopt and implement a CPP that complies with the regulations. Liebert Cassidy Whitmore drafted a template CPP that school and community college districts may adopt and customize in order to establish compliance with the requirements in the emergency regulation. To accompany the template, Liebert Cassidy Whitmore also drafted a guide that identifies specific obligations under the regulation so that schools may more easily identify existing district policies and practices that require modification.

Liebert Cassidy Whitmore is making the CPP template and associated guide available for purchase for consortium members and non-consortium members.

Liebert Cassidy Whitmore attorneys are available to assist schools that have any questions or concerns about the CPP or other aspects of the emergency regulations.

[1] The Office of Administrative Law (“OAL”) is expected to approve the regulations after the requisite 10 day review period.