Aunt Ann’s labor attorney, Lisa Weinberger filled us in on the most recent updates regarding employment law in California. We want to make sure that you are aware of all of the COVID updates for 2021. Below you’ll find updated information regarding Covid-19 for household employment.
WORKERS’ COMPENSATION OBLIGATIONS
Last spring, Governor Newsom issued an Executive Order establishing a rebuttable presumption that certain employees who tested positive for COVID-19 contracted the virus at work, thereby triggering a workers’ compensation claim. Governor Newsom’s Executive Order expired in July; however, the California Legislature codified this rebuttable presumption and expanded it to require additional obligations in the event of an “outbreak” for employers with 5+ employees.
The takeaway from this law for employers: if an employee tests positive, contact counsel to make sure that you are in compliance with all workers’ compensation requirements, both with respect to your employees and your insurance carrier.
RECORDING & REPORTING OBLIGATIONS
A new law provides that if an employer receives notice of potential exposure to COVID-19 (either that an employee has tested positive, or was exposed in the workplace), the employer must take the following steps within one business day:
- Provide written notice to all employees, who were on the premises at the same worksite as the affected employee within the infectious period, that they may have been exposed to COVID-19; and
- Provide all employees who may have been exposed with information regarding COVID-related benefits to which the employee may be entitled, including, without limitation, workers’ compensation benefits, COVID-related leaves, employer-provided sick leave, EDD benefits, as well as anti-retaliation and anti-discrimination protections.
In addition, if the number of cases meets the California State Department of Health’s then-current definition of an “outbreak,” employers have additional reporting obligations to their local public health agency, which must be made within 48 hours.
CAL / OSHA EMERGENCY REGULATIONS + GOVERNOR NEWSOM’S EXECUTIVE ORDER
Just after Thanksgiving, Cal/OSHA issued emergency regulations (to take effect immediately) regarding COVID-19 workplace protections. The emergency standards apply to most workers in California, and generally require that employers implement a site-specific written COVID-19 prevention program to address COVID-19 health hazards (similar, but not identical, to what I described here), correct unsafe or unhealthy conditions, and provide face coverings. The regulations further provide that if/when there are multiple COVID-19 infections or outbreaks at a worksite, employers must provide COVID-19 testing and notify public health departments, and maintain accurate recordkeeping and reporting of COVID-19 cases.
Unfortunately, just days after the Cal/OSHA regulations went into effect, Governor Newsom issued an Executive Order – also to take effect immediately – which provided conflicting requirements from some of the Cal/OSHA regulations. In particular, the Executive Order reflects a change in the California Department of Public Health’s guidance regarding the recommended length of quarantine for individuals exposed to COVID-19, which is inconsistent with the requirements adopted by Cal/OSHA. The new guidance from the California Department of Public Health tracks the recent changes made by the CDC, which can be found here.
These guidelines may very well change again (and again…), but for now, the bottom line is this: the Cal/OSHA regulations are in effect, except to the extent that the California Department of Public Health quarantine guidance – or any local health department – has conflicting guidance for quarantine periods/exclusion from the workplace, in which case those guidelines will govern.
TRAVEL QUARANTINE
Despite public health guidance pleading with people to stay home, we all know that millions of people traveled during the holidays. There are several quarantine orders in place following travel, but of particular relevance to most of my clients, Los Angeles County is now requiring that anyone who travels outside of the county quarantine for 10 days upon their return, and the state of California is asking anyone arriving into California to voluntarily self-quarantine for 10 days. This would mean that, in LA County and for those individuals who are following the California state request, covered employees should not leave their homes to work during this 10-day period.
COVIDTRA
At the very end of December, the much-anticipated COVID-Related Tax Relief Act of 2020 (“COVIDTRA”) was passed by Congress and signed into law by the President. While an extensive discussion of COVIDTRA is beyond the scope of this Newsletter, please note two of the notable employment-related highlights:
- In March 2020, the CARES Act was passed into law (described in detail here) and, with it, the Paycheck Protection Program (“PPP”) that provided loans to struggling businesses. Under COVIDTRA, a new set of PPP loans will be available to first-time qualified borrowers and to businesses that previously received a PPP loan, so long as they meet the criteria. The terms and amount of the loans are similar to those provided under the CARES Act, but the forgiveness eligibility guidelines have been capped and somewhat revised.
- Federal unemployment insurance benefits have (finally) been decided upon, with benefits including:
- Extending emergency benefits from 12 to 24 weeks after traditional benefits are exhausted;
- An additional weekly unemployment benefit of $300 through March 14, 2021; and
- Extending unemployment benefits for freelancers, self-employed, and “gig economy” workers through April 5, 2021.
COVID-19 VACCINATION GUIDANCE
With the COVID-19 vaccine beginning to be rolled out, employers and employees alike have questions surrounding the circumstances under which employers may mandate that employees be vaccinated. While this guidance is likely to become much more specific as the vaccines become more widely available, at the present time, the EEOC seems to suggest that vaccines can be mandatory for employees, while acknowledging that employers may have to make exceptions for employees who have disabilities that prevent them from getting the vaccine and/or for employees who object to vaccinations based on sincerely held religious beliefs.
If an employee refuses a vaccination, employers will then likely have to engage in an analysis of whether the employee’s lack of vaccination will pose a direct threat to the workplace and whether there are other reasonable accommodations that may be made to mitigate against that threat (i.e., remote work). Because it is highly likely that disputes will arise if/when employers determine that a direct threat exists that cannot be reasonably accommodated, this is sure to be a fraught area in 2021 with which we will all have to contend.