Written by Lynne Hook of Employer Lawyer PC
Employers are understandably confused about all the various changes in advice regarding keeping their employees and customers safe during this late-pandemic period. Employers of any size in LA County must balance federal, state, and local guidance in managing their policies on COVID. This article will review the primary issues you will want to understand.
In late July, due to increased transmission of the Delta variant, the CDC updated its masking guidance for fully vaccinated people. According to the new guidance, fully vaccinated individuals should wear a mask indoors in public if they are in an area of substantial or high transmission. As of late July, Los Angeles County is rated “high” as to level of community transmission. Most of Southern California falls into the same category.
The LA County Department of Public Health issued guidance recently requiring that everyone wear masks indoors in public spaces, regardless of vaccination status, as a precaution. This means that all employers without exception in LA County must require that employees and visitors wear a mask when indoors. If you work alone in your office or are eating or drinking, the mask can come off. Medical providers can provide employees with a certification if the employee cannot wear a mask and then the employee should refrain from entering the workplace.
Keep in mind that employers are required to provide unvaccinated employees who work onsite with the correct-size respirator, such as N95 masks, along with basic instructions on how to use the respirator. Respirators must be replaced if they get damaged, deformed, dirty, or difficult to breathe through. For more information about free and low-cost PPE for employers, visit: http://publichealth.lacounty.gov/docs/FreeAndLowCostPPE.pdf
You likely heard that California approved Cal/OSHA emergency temporary standards on COVID-19 infection prevention that went into effect on June 17. A fact sheet on those standards is available here. Remember, employers always follow the strictest guidance for their geographic area, so County mask requirements trump the state Cal/OSHA guidance when in conflict.
COVID-19 Prevention Program
Every California employer must have a COVID-19 Prevention Program in place. Sample model written programs in English and Spanish in fillable Word documents, updated as of June 29, 2021, are available from the state here. All employers must have an Illness and Injury Prevention Program as well as the COVID-19 addendum. Do not overlook this requirement as I am seeing it as part of employee litigation these days.
COVID-19 Supplemental Paid Sick Leave for California
If you have more than 25 employees, you must offer 80 hours of COVID-19 Supplemental Paid Sick Leave to your California employees. This is above and beyond paid sick time that can be used for many other reasons. Like paid sick time, consider these important requirements:
- The leave is to be paid at the Regular Rate of Pay (rate used for overtime calculation)
- The balance of COVID-19 Supplemental leave must appear separately on the pay statement each pay period
If you are not sure about either of these issues, please consult with your payroll provider.
To be eligible, a covered employee must be unable to work or telework due to any one of the following reasons:
- Caring for Yourself: The covered employee is subject to a quarantine or isolation period related to COVID-19 or has been advised by a healthcare provider to quarantine due to COVID-19 or is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- Caring for a Family Member: The covered employee is caring for a family member who is either subject to a quarantine or isolation period related to COVID-19 or has been advised by a healthcare provider to quarantine due to COVID-19, or the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
- Vaccine-Related: The covered employee is attending a vaccine appointment or cannot work or telework due to vaccine-related side effects.
An employer is not required to pay more than $511 per day and $5,110 in the aggregate to a covered employee for 2021 COVID-19 Supplemental Paid Sick Leave taken by the covered employee, but the covered employee may utilize other paid leave that may be available to receive what they would normally earn if the cap were reached.
This COVID-19 Supplemental PSL law expires on September 30, 2021.
Long COVID Is Likely a Disability Requiring Reasonable Accommodation
Federal agencies have released guidance explaining that some individuals with long COVID may have a disability under the ADA and other civil rights laws that entitles them to protection from discrimination.
At least 34 million Americans (and probably many more) have already contracted COVID. An increasing number of studies find that greater than one fourth of patients have developed some form of long COVID. https://www.scientificamerican.com/article/a-tsunami-of-disability-is-coming-as-a-result-of-lsquo-long-covid-rsquo/
Employers should accept medical certifications that present proper support for a medical leave of absence, without inquiring as to the diagnosis. Remember, a “serious health condition” means an illness, injury (including, but not limited to, on-the-job injuries), impairment, or physical or mental condition of the employee or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner of the employee that involves either inpatient care or continuing treatment.
EDD disability claims and workers compensation claims for COVID-related medical issues will continue to be an issue for the next year.
Employers and the federal government are starting to make the COVID vaccine mandatory in the workplace. Many employers were hesitant to go down this road but since Houston Methodist Hospital bravely fought back legal challenges this spring, many employers are feeling more confident.
If you hadn't read about Houston Methodist, this is a great example. In June, a federal judge dismissed a lawsuit brought by 117 employees who were suing the hospital system over its COVID-19 vaccine requirement. U.S. District Judge Lynn Hughes upheld the hospital's vaccination policy, saying the requirement broke no federal law. "This is not coercion. Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer."
In April, Houston Methodist announced that all staff would be required to be vaccinated against COVID-19 by June 7. The hospital said that nearly all its roughly 26,000 employees agreed to the policy, but it suspended nearly 200 staff members without pay for refusing to comply. Two weeks after being suspended for refusing to comply, 153 employees either voluntarily resigned or were terminated. The final tally? 24,947 system employees have been fully vaccinated, 285 received a medical or religious exemption and 332 were granted deferrals for pregnancy or other reasons. That's a 98% vaccination rate!
Google, Facebook, and many other large employers are marching forward with mandatory vaccine policies. All employees on those US campuses must be vaccinated and will not return to the office until October. Accommodations will be made for those who have a religious or medical accommodation request. Apple will require masks indoors, and Disney parks require masks for all indoors, regardless of vaccination status.
In late July, President Biden announced that all federal employees must attest to being vaccinated against Covid-19 or face strict protocols. In his sternest approach yet, the President argued that if you are unvaccinated, "You present a problem to yourself, to your family and to those with whom you work."
Federal employees who have not been vaccinated "will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel," the White House reported.
Taking a motivational approach, some clients have implemented a vaccination incentive policy. This can include individual incentives, such as a $50 payment, entry into a lottery for larger prizes, and team awards for departments that meet certain thresholds. These are all legal programs, however, because it is an unclear issue, it is safest to count these non-discretionary bonuses or payments into the regular rate of pay calculation for your hourly workers.
Every employer must decide whether the carrot or the stick approach will work best. We all want to move forward from COVID restrictions. Never a dull moment for California employers!
Written by Lynne Hook of Employer Lawyer PC
Lynne has been advising and defending employers in employment law matters for over 25 years. She counsels human resources and operations professionals on the legal aspects of employment policies and conducts training and workplace investigations. She has her own practice in Manhattan Beach called Employer Lawyer PC. Lynne received her B.A. Cum Laude in Philosophy and Political Science at USC then went on to complete her JD of Law at Notre Dame Law School. In her spare time, Lynne volunteers extensively for various non-profits in Los Angeles.