Over the last two years, Human Resources professionals and Risk Managers have contended with a host of novel issues raised by the COVID-19 pandemic. This blog post presents a broad overview of some of the more prominent issues related to COVID-19 in an effort to provide some clarity and perspective to California employers. Liebert Cassidy Whitmore regularly writes on these and related issues. Keep an eye on future blog posts for more information.
Monitoring Updates at Every Level of Government
COVID-19-related guidance and requirements can be difficult to track. Changes occur so quickly that they often leave employers scrambling to catch up. Employers can strengthen their ability to track updates by familiarizing themselves with the main sources of guidance and requirements.
State Guidance and Requirements
For most California employers, changes at the state level will be the most important developments to monitor. Many developments will come from one of four sources: regulations from the Division of Occupational Safety and Health (also known as Cal/OSHA); Health Officer Orders and Guidance from the California Department of Public Health (“CDPH”); Executive Orders from the Governor; and new legislation from the California Legislature.
Cal/OSHA’s COVID-19 Emergency Temporary Standard (“ETS”) (8 C.C.R. § 3205, et seq.) has provided a relatively consistent set of COVID-19-related regulations. It outlines workplace requirements that apply to most public and private employers, all of which are designed to prevent the spread of COVID-19. The Occupational Safety and Health Appeals Board (“OSHSB”) has amended the Cal/OSHA ETS from time to time, in order to address changes in the pandemic. Employers can monitor the meeting schedule and agendas of the OSHSB for proposed changes to Cal/OSHA’s ETS. The OSHSB adopted the most recent amendments on December 16, 2021. Readers can find an overview of those changes here.
The COVID-19 pandemic has led to several short-term Executive Orders and legislative bills. Employers may check both authorities directly through online sources. LCW also monitors and announces significant changes through its labor and employment blog and Special Bulletins.
CDPH Health Officer Orders and guidance are also available online. Most recently, the CDPH updated its Guidance for the Use of Face Coverings, which requires all individuals to wear face coverings while indoors from December 15, 2021 to at least January 15, 2022 (subject to a few exceptions). Readers will find more information on the updated CDPH face covering requirements here. Although the CDPH called its update “guidance,” the changes are mandatory due to its June 11, 2021 Health Officer Order. The June 11 Order requires all individuals to follow CDPH’s face covering guidance, including its most recent iteration. When reading CDPH orders and guidance, employers should check the orders currently in effect to see whether they change the applicability of related guidance.
Local Guidance and Requirements
Once an employer reviews state-level guidance or requirements, it should check local authorities for further information. In many jurisdictions, this will mean checking the local health department for Health Officer Orders or COVID-19-related guidance. Local requirements can supplement – but cannot contradict – state requirements. For example, the August 5, 2021 CDPH Order requires employees in a number of healthcare fields to become vaccinated against COVID-19. Shortly afterward, the Los Angeles County Department of Public Health (“LACDPH”) issued a local Health Officer Order expanding the categories of healthcare workers who must be vaccinated. Employers within Los Angeles County must follow both the state and local orders. As a general rule, agencies should identify their local authorities and track updates that may supplement state-level requirements.
Federal Guidance and Requirements
The Centers for Disease Control and Prevention (“CDC”) has provided the most common source of federal guidance. Employers should check CDC guidance regularly, because many other authorities cite to the CDC directly or design their own guidance and requirements based on information from the CDC.
Congress has produced a number of laws to address the COVID-19 pandemic. It has dedicated an unprecedented level of funding to offset pandemic impacts. The President has also taken steps to address the pandemic. Most recently, he instructed the federal Occupational Safety and Health Administration (“OSHA”) to issue its own Emergency Temporary Standard that would require vaccination or testing for many employers nationwide. Federal OSHA’s Emergency Temporary Standard (“ETS”) recently withstood challenge in the Sixth Circuit Court of Appeals. OSHA will begin enforcing the COVID-19 ETS on January 10, 2022, further legal challenges notwithstanding. LCW monitors new and proposed federal legislation and regulations closely. Employers can refer to LCW’s Special Bulletins and newsletters for COVID-19-related federal updates.
Implementing Vaccine Requirements
Existing law does not prohibit employers from implementing a COVID-19 vaccine mandate. However, the process still involves certain considerations and requirements. First, employers should record the vaccine mandate in a written policy. Written policies promote even and consistent application. An effective vaccine mandate should also give employees time to comply with vaccination requirements, as well as describe methods for seeking accommodation. If employers adopt a vaccine mandate for applicants, they should make the requirement clear from the outset and should not ask an applicant’s vaccination status until they have extended a conditional offer for employment.
Employers must also engage in effects bargaining with employee representative organizations. Effects bargaining may cover issues like the timing of the requirement, how long employees have to come into compliance, how exemptions to a vaccine mandate will be evaluated by the employer, and how discipline will be applied.
While current definitions of the term “fully vaccinated” do not include taking booster shots, employers should monitor the CDC and CDPH in case definitions change and boosters are needed. If that happens, employers will need to update existing vaccine mandates to account for boosters.
Religious Accommodations to Vaccine Requirements
Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (“FEHA”) protect employees’ religious beliefs at the federal and state levels. In the past, employers received religious accommodation requests infrequently when compared to requests for accommodation based on other characteristics, such as disability. Recently, employers have received increasing numbers of religious accommodation requests in response to COVID-19 vaccine mandates.
Once the employer becomes aware that a conflict exists between an employee’s religious belief, observance, or practice and a job requirement (e.g., vaccination against COVID-19), the employer is obligated to evaluate a potential reasonable accommodation. California regulations and federal guidance describe that an accommodation is reasonable if it eliminates the conflict between the employee’s religious belief and the job requirement. Under both Title VII and the FEHA, an employer is obligated to consider all potential reasonable accommodations; although, the employer need not offer the specific accommodation that the employee requested. An employer is excused from its obligation to accommodate only if it can show that any potential accommodation would impose an undue hardship. (Note, Title VII and the FEHA define “undue hardship” differently. Employers should consider consulting legal counsel before denying a religious accommodation request on the basis that it imposes an undue hardship.)
Employers that receive religious accommodation requests should approach each request as an individualized inquiry. Employers have an obligation to engage employees in an interactive process with the goal of identifying a reasonable accommodation.
Ongoing Duty to Exclude from the Workplace
The Cal/OSHA ETS requires employers to exclude employees from the physical workplace when an employee either has COVID-19 (positive test, positive diagnosis, or ordered to isolate) or has a close contact exposure with someone who has COVID-19 (was within 6 feet of a person with COVID-19 for a cumulative 15 minutes in any 24-hour period). The Cal/OSHA ETS also requires employers to maintain the excluded employee’s compensation, seniority, and benefits while excluded.
There are several exceptions to the exclusion requirement. If an employer can show that the employee’s close contact exposure was not work-related, then it does not need to maintain compensation, seniority, or benefits while the employee is excluded. The employer also has no obligation where the employee received disability payments or was covered by workers’ compensation and received temporary disability. Separately, an employee who had a close contact exposure need not be excluded from the workplace at all if the employee meets one of several, enumerated exceptions.
Through September 30, 2021, California required employers to provide up to 80 hours of Supplemental Paid Sick Leave (“SPSL”) to employees for COVID-19-related reasons. Employers often used SPSL to compensate employees who were excluded from the workplace under the Cal/OSHA ETS. However, the expiration of SPSL had no effect on the obligation to compensate excluded employees under the Cal/OSHA ETS. The obligations of the ETS are still effective. If an employer does not have another source of compensation available to an excluded employee, it is still obligated to maintain the employee’s compensation, seniority, and benefits unless an exception from the Cal/OSHA ETS applies.
Many employers relied on remote work, or “telework,” arrangements to survive the initial disruption caused by the pandemic. Now that telework has proven in many circumstances to be a viable option, some employers are evaluating expanded teleworking policies (some permanent and some on a trial basis). Employers that do so should consider designing the policy so that the employer retains discretion rather than making telework a guaranteed benefit. Certain jobs are better suited for to teleworking, while others are poorly suited or incompatible to telework. Additionally, conditions or job demands may change and may affect the practicality of teleworking arrangements. Employers should also consider potential obligations to compensate employees under Labor Code section 2802, on indemnification for expenditures, which may arise from telework arrangements. This is particularly true if teleworking is required.
As many HR specialists and risk managers have learned, the COVID-19 pandemic presents an ongoing challenge to remain current with applicable laws. Luckily, employers need not handle the shifting challenges alone. Experienced counsel can help employers meet the various demands created by COVID-19.