COVID-19: 'Tis The (COVID-19) Holiday Season!
Posted December 22, 2020

COVID-19 cases are on the rise, and employers are faced with increasing claims of employee exposure along with positive cases. Here are several highlights to assist you in responding to COVID-19 employment issues this month:

Check federal, state and local sources of authority before taking action, and watch for rapidly-evolving updates

Recommendations from the federal CDC (see here) may differ from state mandates or recommendations (see here), and both may differ from city and county ordinances. For example, Los Angeles County (see here) has more rigid requirements than the State of California. The most restrictive requirement will apply to your business. Review all relevant sources of authority for your city, county and state for application to your particular situation.

The Governor's December 3, 2020, regional stay-at-home orders (see here) are based on a regional assessment of hospital ICU bed capacity. The Southern California region immediately dipped below the 15% availability standard when the orders were issued, triggering a minimum three-week stay-at-home order. Some counties have complained that they should not be tied to Los Angeles County, but the state has not budged on the scope of the Southern California region. Watch state and local orders for updates on your area's stay-at-home status.

The November 30, 2020, 21-page Cal/OSHA Emergency Temporary Standards for COVID-19 Prevention (“ETS”) (see here) cover all worksites with one employee or more, except for remote/home worksites. Legal challenges have been mounted to these burdensome regulations, particularly with regard to the compensation requirement which may be unconstitutional and beyond the scope of Cal/OSHA's jurisdiction. Be on the alert for any reports of an injunction prohibiting some or all of the Cal/OSHA ETS.

The 2020 FFCRA benefits are set to expire as of December 31, 2020; it remains to be seen whether the stimulus package now awaiting Congressional vote will provide for new or different benefits in 2021. It appears that the pending stimulus package will provide for extended PPP benefits under the CARES Act, among other relief for businesses and individuals alike. Stay tuned for future legal updates on this pending COVID-19 relief.

Follow the multiple reporting and notice obligations in the event of a COVID-19 positive test or exposure

Under SB 1159, creating Labor Code sections 77.8, 3212.87, and 3212.88, employers are required to report all confirmed positive serum tests to their workers’ compensation carrier within three days. The carrier will have a form for this. The worker must have been in the non-home worksite within 14 days prior to the positive test. A "worksite" is the particular building or other site-specific location were the employee was present, not an entire facility with multiple separate "worksites" that the worker never entered. There is no need to provide the DWC-1 First Report of Injury unless the employee claims or it is clear that the exposure occurred in the workplace.

An “outbreak” occurs for the purposes of SB 1159 if the employer with less than 100 employees has four such positive tests reported to its carrier within two weeks, or the company has more than 100 employees and at least four percent (4%) of the worksite tests positive. In the event of an outbreak, the company will be required to alert state and local public health officials, typically by phone.

Under the new Cal/OSHA ETS referenced above, the employer has one business day to alert any employees who were exposed to a COVID-19-positive worker. "Exposure" means a cumulative (not consecutive!) 15 minutes of contact within six feet, masked or unmasked, during a 24-hour period. This is the same standard generally recommended by federal and state agencies. Speak with the positive employee and use security cameras or other means to determine possible exposures.

AB 685, creating Labor Code sections 6325 and 6432 and effective January 1, 2021, requires the employer to provide notice of a positive COVID-19 case to all employees and the employers of any subcontracted employees who were “on the premises” of the same worksite as the COVID-19 individual. This is a more expansive standard than the “direct exposure” standards under other laws. There must be a confirmed positive test. Workers who "think" they may have COVID-19 or have been exposed do not create an obligation to report.

The AB 685 notice to workers, which must be issued within 24 hours of the exposure, must contain four items:

• Notice of the potential exposure (without employee names);
• Information about available employer and government leave and financial benefits;
• Information about anti-retaliation and discrimination;
• The employer’s Disinfection and Safety Plan (see here).

LightGabler has prepared a sample AB 685 notice form for our firm's clients; contact us to receive a copy of this notice.

Provide appropriate compensation and leave benefits to employees impacted by COVID-19

• FFCRA: The federal Families First Coronavirus Response Act, applicable to employers with under 500 employees, includes both two weeks of emergency paid sick leave (EPSL) and a total of up to 12 weeks of child care pay under the Emergency Family and Medical Leave Expansion Act (EFMLA) for qualifying circumstances. The FFCRA currently is set to expire on December 31, 2020. If Congress's final COVID-19 stimulus package includes an extension, it would trigger an extension of the corresponding state COVID-19 supplemental paid sick leave laws. For FFCRA details, review the federal Department of Labor FAQs here.
• CSPSL: California’s AB 1867, codifying California Labor Code sections 248 and 248.1, provides for benefits mirroring the federal FFCRA sections by covering up to two weeks/80 hours of COVID-19 Supplemental Paid Sick Leave (CSPSL), but not child care (i.e., no EFMLA equivalent). Labor Code section 248 applies only to California-based food sector workers at companies with at least 500 employees nationwide, codifying the Governor's previous Executive Order. Labor Code section 248.1 applies to all companies with over 500 workers nationwide who have California-based workers, and California health care/first responder employers who previously exempted themselves from the FFCRA. Only direct health care workers and first responders may be excluded from the FFCRA; billers and other non-care personnel cannot be excluded. Under Labor Code section 248.1, covered employers must provide workers with notice each pay period as to how much California CSPSL they have available. Although not required, the pay stub is the logical place to include this information, just like regular California-mandated sick time. Where possible, employers should apply the FFCRA to a qualifying absence, because it provides a full payroll tax credit against all federal tax obligations. The state laws do not provide a tax credit.
• Cal/OSHA ETS: The most controversial portion of the Cal/OSHA ETS require all covered employers to continue employee pay and benefits during any time the employer forces employees exposed at the employer's worksite to remain off work (“exclusion pay”); assuming those employees are "able and available" to work (i.e., not disabled or otherwise off work because of a COVID-19 positive test). Unlike the FFCRA and CSPSL, an employer may require the employee to exhaust paid sick leave benefits or PTO before providing exclusion pay under the Cal/OSHA ETS, and may offset Cal/OSHA ETS exclusion pay by the amount of other benefit payments received by an employee (if applicable). The employer would then be required to fill any remaining pay or benefits gap (See section (10)(C) of the ETS). Note that if the employer can assign the affected worker to a remote/home or single-employee worksite during the quarantine period, the Cal/OSHA ETS pay obligations would be suspended because the employee is put to work.

Follow the quarantine requirements before allowing an employee to return to work

There are conflicting recommendations regarding exposure-related quarantine periods among the state, federal and local regulations. Although the overlapping laws can create confusion, remember that employers must follow the most restrictive standards to ensure compliance with all applicable laws.

Under the Cal/OSHA ETS, an employee positive for COVID-19 may not return to work until (a) symptoms have improved; (b) the employee has been fever-free for 24 hours, without the use of fever-reducing medications, and (c) 10 days have passed since the onset of symptoms (or positive test if there have been no symptoms). An employee who has been exposed to COVID-19 must quarantine away from work for a period of 14 days. These timelines apply regardless of the employee’s testing status. Note that under Section 11 of the Cal/OSHA ETS, and contrary to federal regulations, the employer cannot force the employee to obtain a negative test as a condition of returning to work.

The federal CDC now has opined that 7-10 days of quarantine may be sufficient (depending on the type of business), but comments from the CDC indicate that reduction in the 14-day quarantine may have been the result of political pressure. The Governor’s most recent Executive Order (EO-N-84-20) on December 14, 2020, similarly reduced the quarantine period as it relates to anyone with a close contact: “All asymptomatic close contacts (within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period) may discontinue quarantine after Day 10 from the date of last exposure with or without testing….” (See here.) However, despite the Governor’s indication that the Cal/OSHA standards would be modified to reflect this change, the 14-day exposure quarantine period remains in place in the ETS and continues to be the applicable quarantine standard at this time.

Prepare and maintain required documentation and training

Employers should carefully review the Cal/OSHA ETS and all state and local regulations on documentation, training and worksite safety. There are specific requirements for posting of notices, employee training, creation of COVID-19 safety plans (including the Cal/OSHA-mandated Coronavirus Prevention Plan, a sample of which can be found on the department's FAQs page here) and required worksite personal protective equipment (PPE). See LightGabler's legal update on the Cal/OSHA ETS here. Public health officials will inspect both the physical site and the employer’s documentation, and employers risk a shutdown if they don't have both well under control.

As indicated above, these are only some of the most significant highlights of the multiple laws and regulations in effect to deal with the COVID-19 pandemic. Consult with your employment law counsel to address specific workplace situations and to ensure compliance with all applicable standards.

For questions regarding COVID-19 regulations or other employment law issues, contact the employment attorneys at LightGabler.

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