Cal/OSHA Withdraws June 3 Updates to COVID-19 ETS; Revisions Expected June 17

On June 9, 2021, Cal/OSHA’s Occupational Safety & Health Standards Board (OSHSB) voted to withdraw the revisions approved on June 3rd to the COVID-19 Emergency Temporary Standards (ETS). The board will convene on June 17, 2021 to review a new draft of the ETS, which is expected to bring Cal/OSHA’s guidance in line with recommendations from the CDC and CDPH.

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Significantly, this updated guidance will likely allow fully vaccinated workers to refrain from masking in both indoor and outdoor workplaces. If OSHSB approves Cal/OSHA’s revisions on June 17, the newly revised ETS could go into effect on June 28, 2021, after review from California’s Office of Administrative Law (OAL).

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In the meantime, California employers must still conform with the current version of the ETS. Employers may also be subject to stricter requirements imposed by other regulatory bodies and/or local governments (such as Los Angeles County).

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Resources for California Employers

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Find out more about the California Department of Public Health (CDPH) recommendations here.

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Find CDPH’s guidance for the use of face coverings, updated June 9, 2021, here.

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If you have questions regarding the application of Cal/OSHA’s ETS to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

Maloney Firm attorneys Gregory Smith and Carl Mueller Selected to Super Lawyers’ 2021 Rising Stars List

We are proud to announce the selection of Maloney Firm attorneys Gregory Smith and Carl Mueller to Super Lawyers’ 2021 Southern California Rising Stars list. Carl has now earned his spot on the Rising Stars list for two years in a row. Greg has been selected to this list for the past six years, and has once again earned the further distinction of being named to the Up-and-Coming 100, an elite sub-list. 

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Firm attorneys Patrick Maloney and Lisa Von Eschen have also consistently been recognized by Southern California Super Lawyers.

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Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

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The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

Cal/OSHA Approves Updated ETS, With More Revisions to Come

Update: On June 9, 2021, OSHSB voted to withdraw the June 3, 2021 updates to the COVID-19 ETS (which are outlined below), and is expected to convene on June 17, 2021 to review further changes to the ETS that would bring Cal/OSHA’s guidance in line with CDC and CDPH recommendations. Read more here, and stay tuned for more updates from Cal/OSHA in the coming weeks.

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On May 20, 2021, Cal/OSHA’s Occupational Safety & Health Standards Board (OSHSB) postponed a vote to approve proposed changes to the Emergency Temporary Standards for COVID-19 Prevention (ETS) to bring the ETS in line with CDC Guidance. After over nine hours of public commentary and deliberation on June 3, 2021, the Board voted to approve the newly revised ETS, which remain more stringent than CDC and California Department of Public Health (CDPH) guidance.

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The revised ETS will now be submitted to California’s Office of Administrative Law (OAL) for review, and will likely be approved within the next 10 days, just before California’s anticipated June 15th reopening. During the June 3rd meeting, OSHSB indicated that employers can expect further revisions to the ETS, as well as detailed FAQs, to be released in the coming months.

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Below is a summary of some of the most notable revisions to the ETS, which include adjustments to masking, testing, social distancing, and other requirements. As a reminder, California employers may still be subject to stricter requirements imposed by other regulatory bodies and/or local governments (such as Los Angeles County).

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COVID-19 Prevention Measures

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Notably, many of these provisions carry limited exemptions for fully vaccinated workers. A worker is considered “fully vaccinated” under the ETS if the employer has documentation demonstrating that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine that is either FDA-approved or has emergency use authorization from the FDA.

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Many provisions apply specifically to indoor worksites and “outdoor mega events,” which are events that include over 10,000 participants or spectators outdoors. These may include conventions, shows, outdoor nightclubs, concerts, sporting events, theme parks, fairs, festivals, large races, and parades.

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Physical Distancing and Partitions

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All physical distancing requirements are set to expire on July 31, 2021. In the meantime, for indoor worksites and outdoor mega events, employers must choose to comply with one of the following two protocols:

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Option A: All employees must be separated from other persons by at least six feet, regardless of vaccination status, except for:

  • employees wearing respirators required by the employer and used in compliance with Cal/OSHA’s respirator standard;
  • where an employer can demonstrate that six feet of separation is not feasible (employees must still be as far apart as is feasible); and
  • momentary exposure while persons are in movement.

Option B: All employees who are not fully vaccinated must be provided respirators for voluntary use in compliance with Cal/OSHA’s respirator standard.

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Acceptable physical distancing methods (applicable to Option A) include:

  • telework or other remote work arrangements;
  • reducing the number of persons in an area at one time, including visitors;
  • visual cues such as signs and floor markings to indicate where employees and others should be located or their direction and path of travel;
  • staggered arrival, departure, work, and break times; and
  • adjusted work processes or procedures, such as reducing production speed, to allow greater distance between employees.

To clarify, the following are exempt from physical distancing requirements:

  • Employees wearing respirators required by the employer and used in compliance with Cal/OSHA’s respirator standard, and
  • Locations at which all employees are fully vaccinated, except for employees who require a reasonable accommodation or exception to vaccination under federal or state law (such as FEHA, the ADA, and Title VII). For this exemption to apply, the employer must provide respirators for voluntary use in compliance with Cal/OSHA’s respirator standard to all employees who are not fully vaccinated and test those employees for COVID-19 at least once per week, during paid time and at no cost to the employees.

Until July 31, 2021, where applicable, partitions must stay in place to protect workers indoors and at outdoor mega events. After July 31, 2021, employers may remove partitions, but must reinstall them in the case of multiple COVID-19 infections or outbreaks in the workplace.

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Testing

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Starting July 31, 2021, employers must make COVID-19 testing available during paid time and at no cost to the employee for employees who are not fully vaccinated and have COVID-19 symptoms. This requirement applies whether or not the employee had a “close contact” with a COVID-19 case, and whether or not the exposure was work-related.

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Employers must also make COVID-19 testing available at no cost, during paid time, to all employees who had a close contact in the workplace, except:

  • Employees who were fully vaccinated before the “close contact” occurred and are asymptomatic, and
  • Employees with “natural immunity” (essentially COVID-19 cases who were infected and returned to work within 90 days prior to the exposure).

Face Coverings/Masking

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Significantly, when required, employees must use face coverings that are surgical masks, medical procedure masks, or double layered (of tightly woven or non-woven material) masks, or respirators. This does not include: scarves, ski masks, balaclavas, bandanas, turtlenecks, collars, or masks made of a single layer of fabric.

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Employers are still required to provide face coverings and ensure employees properly wear acceptable face coverings that are clean and undamaged when indoors, when outdoors and less than six feet away from other persons, and when required by the CDPH or any local health department. However, the updated ETS adds the following exemptions:

  • When an employee is alone in a room, or when all persons in a room are fully vaccinated and asymptomatic,
  • Employees wearing respirators required by the employer and used in compliance with Cal/OSHA’s respirator standard, and
  • Employees who are fully vaccinated and asymptomatic when they are outdoors.

The language in the updated ETS indicates that, starting June 15, if all workers in the same room are fully vaccinated and symptom-free, they are exempt from masking and physical distancing requirements. However, masks are still required when any person (which may include workers, customers, or other visitors) in a room is not fully vaccinated, regardless of other workers’ vaccination status. Therefore, California workers who interact with the public will likely be subject to face covering requirements regardless of vaccination status, even after June 15. Cal/OSHA is expected to release FAQs clarifying their masking requirements within the next few weeks.

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After July 31, 2021, employers must provide respirators (such as N95s) to all employees who are not fully vaccinated for voluntary use. Cal/OSHA does not specify an end date for this guidance.

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Employee Training

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Employers are now required to provide training on COVID-19 vaccinations and testing accessibility, proper use of respirators (if they are provided for voluntary use), the differing efficacies of respirators and face coverings, and other specified topics.

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Exclusion from the Workplace

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Fully vaccinated and naturally immune workers do not need to be excluded from work after a close contact if they remain asymptomatic. In a change from the previous draft of the revised ETS, individuals who are COVID-19 cases, but are asymptomatic and were fully vaccinated before becoming a COVID-19 case, must be excluded from work for 10 days after the positive test.

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Newly Revised Definitions for Close Contacts, Outbreak Testing, Mega Events

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Fully Vaccinated

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Employees are considered “fully vaccinated” for the purposes of this guidance when the employer obtains documentation showing that the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. Unlike CDC guidance, which includes vaccines approved or emergency authorized by the World Health Organization, vaccines must be approved or emergency authorized by the FDA.

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The anticipated revised ETS FAQs will likely include more information indicating how employers may comply with vaccine documentation and other medical records requirements.

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Close Contact

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“Close contact,” for the purposes of this guidance, is defined as 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 “high-risk exposure period” of the COVID-19 case, regardless of the use of face coverings.

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Outbreak Testing

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Outbreak testing is required when three or more cases within an “exposed group” visit the workplace during their high-risk exposure period within a 14-day period; the ETS revisions eliminate the requirement for outbreak testing when a workplace has been identified by the local health department as an outbreak site.

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Exposed Groups

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The newly revised ETS exchanges the term “exposed workplace” to “exposed group,” which is defined as:

“All employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period. A common area at work includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.”

The following situations are exempt from this definition:

  • A place where persons momentarily pass through while everyone is wearing face coverings, without congregating.
  • The COVID-19 case was part of a distinct group of employees that are not present at the workplace at the same time as other employees (only employees within that distinct group are part of the “exposed group”).
  • The COVID-19 case visited a work location, work area, or common area at work during the high risk exposure period for less than 15 minutes, during which all persons were wearing face coverings.

Resources for California Employers

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Assuming the OAL approves the updated ETS, Cal/OSHA is expected to release FAQs clarifying the updated ETS within the next few weeks. In addition, OSHSB appointed a three-member subcommittee to convene with Cal/OSHA to draft further revisions to the ETS, which may bring the standards more in line with CDC and CDPH guidance in the coming months.

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View the full text of the revised ETS, which will likely go into effect just before June 15, 2021, here.

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View Cal/OSHA’s Respiratory Protection Standard (Cal. Code. Regs., tit. 8, section 5144) here.

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Employers should also be mindful of continued compliance with applicable County and/or City protocols. Los Angeles County guidance can be found here.

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If you have questions regarding the application of Cal/OSHA’s updated ETS to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

LA County Requires Some Employers in Unincorporated Areas to Provide Paid COVID-19 Vaccine Leave

On May 18, 2021, Los Angeles County passed an urgency ordinance requiring some employers to provide additional paid leave for employees to receive COVID-19 vaccinations. This leave is to be provided if employees exhaust the COVID-19 supplemental paid sick leave required by the State.

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Eligibility

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This legislation applies to all private employers in the unincorporated areas of Los Angeles County. Both full-time and part-time employees are covered under this ordinance.

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Provisions

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Eligible employers must provide paid leave that includes time spent for:

  • traveling to and from a COVID-19 vaccine appointment,
  • receiving the COVID-19 vaccine injection, and
  • recovering from any symptoms related to receiving the COVID-19 vaccine that prevent them from being able to work or telework.

For the purposes of this ordinance, “Full-time employees” are defined as those employees the employer considers to work full-time or who worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding this leave. Full-time employees are entitled to a maximum of 4 hours of additional paid leave per vaccine injection. Part-time employees—defined as any employees that are not full-time—are entitled to the prorated amount of four hours per injection based on their normally scheduled work hours over the two-week period preceding the injection.

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Employees must be compensated at their normal rate of pay, calculated based on their highest average two-week pay during the period between January 1, 2021 through May 18, 2021.

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This paid leave is only available if employees exhaust all available supplemental paid sick leave mandated by the State of California, and must be provided in addition to any other job-protected paid leave employees are entitled to under California’s Healthy Workplace Healthy Family Act.

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Notification and Record-Keeping Requirements

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Covered employers are required to post a written notice, which will soon be created by the Los Angeles County Department of Consumer and Business Affairs, in a conspicuous place where employees work. Affected employers must also maintain records demonstrating compliance with this ordinance, including payroll records for each employee.

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Effective Time Period

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As an urgency ordinance, the above provisions took effect immediately. The ordinance applies retroactively to January 1, 2021 and will expire on August 31, 2021.

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Resources for California Employers

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Read the full text of the urgency ordinance here.

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Monitor the LA County Department of Consumer and Business Affair’s website for a posting of the required written notice associated with this ordinance here.

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Access information on Los Angeles County’s Unincorporated Areas here.

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Learn more about California’s recently expanded supplemental paid sick leave requirements here.

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If you have questions regarding the application of LA County’s newly mandated COVID-19 Vaccine Leave to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

CDPH Confirms California’s June 15 Reopening Date and Updates Guidance

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On May 21, 2021, the California Department of Public Health (CDPH) released updated guidance for moving beyond the Blueprint for a Safer Economy, confirming the State’s June 15 reopening date. Amongst the most significant changes is the withdrawal of physical distancing and capacity limit requirements in all settings. California businesses will still be subject to Cal/OSHA’s Emergency Temporary Standards (expected to be revised on June 3, 2021), and potentially more stringent local requirements.

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Restrictions

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When the state progresses past the Blueprint on June 15, 2021, most COVID-19 restrictions imposed by the State of California will be lifted. Certain limitations will stay in place for “mega events,” as noted below.

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Capacity Limitations and Physical Distancing

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All physical distancing requirements and capacity limitations in both indoor and outdoor settings will be lifted, meaning that businesses across all sectors may choose to open at full capacity.

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Masking

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Individuals will be required to follow the updated CDPH Guidance for Face Coverings, which is aligned with CDC guidance and differs for vaccinated and unvaccinated individuals.

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Vaccine Verification and Negative Testing

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Although businesses (and local governments) may still impose their own requirements, California will not mandate vaccine verification or negative testing requirements for any activities (with the exception of some mega events).

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Traveling

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Although all restrictions on travel outside of California will ostensibly be lifted, the CDPH notes that travelers must adhere to CDC recommendations and CDPH travel restrictions.

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Exceptions for Indoor/Outdoor Mega Events

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Mega events are broadly defined as “planned public or social occasions that include over 5,000 participants or spectators indoors and over 10,000 outdoors.” Different restrictions will apply for indoor and outdoor mega events. Requirements and recommendations for negative testing/vaccine verification will be in place effective June 15, 2021 through October 1, 2021, with the option to extend them further.

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For indoor mega events, attendees will be required to verify their fully vaccinated status or pre-entry negative test results. For more information on acceptable verification methods and acceptable testing requirements, navigate to the CDPH guidance’s footnotes. For more information on who is considered “fully vaccinated” by the CDPH, click here.

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For outdoor mega events, verification of vaccination or pre-entry negative test results is strongly recommended, but not required, for all attendees. Outdoor venues will be required to make masks available for all attendees.

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In addition to general public health recommendations, all mega events must also adhere to notice/communications and masking requirements imposed by the CDPH. Information must be prominently placed on all communications, including the reservation and ticketing systems, to ensure guests are aware of the applicable recommendations and requirements set out by the CDPH.

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Potentially More Stringent Precautions

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Cal/OSHA’s Emergency Temporary Standards

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The California Occupational Safety & Health Standards Board is scheduled to release a proposal to update the COVID-19 Emergency Temporary Standards (ETS) on May 28, 2021, and will likely reconvene to vote on these revisions on June 3, 2021. In the meantime, employers are still subject to the November 2020 ETS.

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Local Laws

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Businesses may still be subject to more stringent restrictions posed by individual cities and counties, and should monitor local guidance.

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Resources for California Employers

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View the CDPH’s Beyond the Blueprint announcement here.

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View the CDPH’s Beyond the Blueprint Q&A here.

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As California’s targeted reopening date on June 15, 2021 fast approaches, employers should stay tuned for newly updated guidance from Cal/OSHA and other regulatory agencies. If you have questions regarding the CDPH or Cal/OSHA’s updated guidance, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

Celebrating the Firm’s 9th Anniversary on June 1, 2021

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As we approach our ninth anniversary on June 1st, the attorneys at the Maloney Firm would like to extend our warmest thanks to our clients and friends. Since Patrick Maloney established the firm in 2012, it has grown into an eight-lawyer boutique specializing in all facets of business disputes and litigation. We are immensely privileged to have provided successful representation to hundreds of clients, and look forward to continuing to offer significant legal expertise without significant cost.

CPHD and Cal/OSHA Update Guidance for Fully Vaccinated Non-Healthcare Workers

The California Occupational Safety & Health Standards Board met May 20, 2021 to consider enacting sweeping updates to Cal/OSHA’s emergency temporary standards (“ETS”) for COVID-19 prevention. In spite of mounting pressure to either update or eliminate the ETS, which were originally enacted in November 2020, the board did not vote to act on the proposed changes. They are expected to reconvene on June 3, 2021 to further discuss revisions. For now, the most up-to-date guidance for employers from Cal/OSHA comes in alterations to the ETS’s FAQs. Learn more about these revisions, which primarily affect fully vaccinated workers, below.

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On May 3, 2021, the California Public Health Department (CPHD) released updated public health recommendations for fully vaccinated people. Significantly, the guidance states that fully vaccinated non-healthcare workers are no longer required to quarantine after a known workplace exposure to COVID-19 if they are asymptomatic. In response, the California Division of Occupational Safety and Health (Cal/OSHA) updated their recommendations for fully vaccinated employees in the workplace.

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CPHD Guidance: Eligibility Requirements and Provisions

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These recommendations from the CDPH only apply to non-healthcare workers that are fully vaccinated. For the purposes of this guidance, employees are considered “fully vaccinated” against COVID-19 two weeks or more after they have received either a single-dose vaccine or the second dose in a 2-dose series of a vaccine authorized for emergency use by the Food and Drug Administration. Currently, the only vaccines authorized for such use are the Pfizer-BioNTech, Moderna, and Johnson and Johnson/Janssen COVID-19 vaccines. The guidance will be updated as additional vaccines are approved.

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Under these updated recommendations, eligible employees that are exposed to the COVID-19 virus in the workplace do not need to quarantine if they are asymptomatic. The CDPH emphasizes that employers subject to Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (ETS) must still ensure that all employees are following applicable face covering and testing requirements.

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Cal/OSHA: Updates to Emergency Temporary Standards FAQs

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On May 5, 2021, Cal/OSHA updated their ETS FAQs to reflect this change. Under the ETS, employers must still exclude fully vaccinated employees that “are COVID-19 cases or have had a COVID-19 exposure and exhibit COVID-19 symptoms” from the workplace. However, fully vaccinated, non-healthcare employees who do not develop symptoms of COVID-19 after a known exposure are no longer required to quarantine.

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The FAQs have also been updated to reflect that, when an employer learns (in a non-outbreak setting) that one or more of their employees was exposed to COVID-19 in the workplace, the employer must:

“exclude from the workplace employees who test positive for COVID-19, and exclude employees with COVID-19 exposure unless they are fully vaccinated and do not show any symptoms of COVID-19, and follow the requirements for preserving their pay and benefits.”

Resources for California Employers

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Access the CPHD’s updated recommendations here.

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Access Cal/OSHA’s updated COVID-19 Emergency Temporary Standards FAQs here.

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As California’s targeted reopening date on June 15, 2021 fast approaches, employers should stay tuned for newly updated guidance from Cal/OSHA and other regulatory agencies. If you have questions regarding the CDPH or Cal/OSHA’s updated guidance, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

HHS Restores LGBTQ+ Healthcare Protections

On May 10, 2021, the United States Department of Health and Human Services (HHS) announced that the anti-discrimination provisions in Section 1557 of the Patient Protection and Affordable Care Act (Section 1557) cover discrimination on the bases of sexual orientation and gender identity. Learn more about what this updated guidance means for California employers below.

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Background and Enforcement

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Section 1557 prohibits discrimination on the grounds of race, color, national origin, sex, age, and disability in certain health programs and activities that receive federal funding. As of May 10, 2021, the HHS now interprets and enforces Section 1557’s ban on sex discrimination to include discrimination on the bases of gender identity and sexual orientation. The HHS’s Office for Civil Rights (OCR), which enforces Section 1557, has jurisdiction over any health program or activity that receives federal financial assistance from the HHS, or is administered by HHS or any entity established under Title I of the Affordable Care Act.

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This announcement reverses a policy enacted by the previous administration, which rolled back anti-discrimination protections in healthcare for transgender individuals, and is part of a larger federal initiative to “fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.” In January, President Biden released an Executive Order instructing federal agencies to interpret civil rights laws that prohibit sex discrimination to encompass discrimination on the bases of gender identity and sexual orientation. The Order codified and extended the 2020 verdict in Bostock v. Clayton County, in which the U.S. Supreme Court ruled that employers who terminate a worker for identifying as gay or transgender violate Title VII’s prohibition on sex discrimination. Learn more about that ruling here.

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Implications for California Employers

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Employers—particularly those who receive or whose employee health plans receive HHS funding—should review their plans to ensure that they are in compliance with the HHS’s newly interpreted anti-discrimination policies.

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Access the HHS’s Notification of Interpretation and Enforcement of Section 1557 here.

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Access a summary of Section 1557 of the Patient Protection and Affordable Care Act here.

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Learn more about President Biden’s Executive Order here.

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If you have questions regarding the application of the HHS’s updated guidance to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

Newsom Enacts Statewide Right of Recall Bill for Hospitality Industry

On April 16, 2021, Governor Newsom signed Senate Bill (SB) 93, which requires employers in the hospitality industry to offer employees laid off due to the COVID-19 pandemic preferential hiring. As a budget bill, SB 93’s provisions take effect immediately. The bill’s provisions will expire on December 31, 2024.

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Covered Employers

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This ordinance applies specifically to employers in the following hospitality-related industries:

  • Hotels
  • Private Clubs
  • Event Centers
  • Airport Hospitality Operations
  • Airport Service Providers
  • Building Services (including janitorial, building maintenance and security services) provided to office, retail and other commercial buildings

Significantly, SB 93’s provisions apply when an employer relocates within California, and to successor employers when there has been a change in ownership or control.

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Covered Employees and Provisions

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The bill requires covered employers to offer qualified laid-off employees vacant positions based on a preference system. Laid-off employees are considered qualified for a position if they held the same or a similar position at the time of the layoff. Under SB 93, a laid-off employee is defined as any employee who:

  • was employed by the employer for 6 months or more in the 12 months preceding January 1, 2020, and
  • was most recently separated from active service due to a reason related to the COVID-19 pandemic, including a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, nondisciplinary reason related to the COVID-19 pandemic.

Covered employees must be offered reemployment in order of seniority with the employer, and must be given 5 business days to respond to offers of reemployment.

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Employers are prohibited from refusing to employ, terminating, reducing compensation, or taking other adverse action against any laid-off employee for seeking to enforce their rights under these provisions.

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Record-Keeping and Enforcement

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All positions that become available after April 16, 2021 must be offered to qualified laid-off employees. Employers must offer a qualifying employee reemployment within 5 days of establishing a relevant position. This offer must be delivered in writing by hand or home delivery, and by email and text. Employers that do not offer a laid-off employee reemployment on the grounds of lack of qualifications, and hire someone other than a laid-off employee, must provide the laid-off employee written notice within 30 days detailing the reasons for the decision and the length of service of the employee hired instead.

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Employers are also required to retain records that enable them to contact laid-off employees when positions become available, including:

  • the employee’s full legal name
  • the employee’s job classification at the time of separation from employment
  • the employee’s date of hire
  • the employee’s last known address of residence, email address, and telephone number
  • a copy of the written notices regarding the layoff provided to the employee
  • all records of communications between the employer and the employee concerning offers of employment made to the employee under this bill.

The Division of Labor Standards Enforcement (DLSE) has sole jurisdiction to enforce SB 93. Laid-off employees may file a complaint with the DLSE for violations of the provisions of this bill, and employers may face civil penalties for noncompliance.

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Resources for California Employers

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View the full text of Senate Bill 93 here.

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Access the DLSE’s website here.

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If you have questions regarding the application of SB 93 to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

Comment 1 to Cal. Rules of Professional Conduct Rule 1.1 now requires all lawyers to keep abreast of technological resources and risks


“You’ve got to know when to hold ’em, know when to fold ’em,”1 and know when to call a technology consultant: Comment 1 to Cal. Rules of Professional Conduct Rule 1.1 now requires all lawyers to keep abreast of technological resources and risks.

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By Carl I. S. Mueller and Colin Dunn

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Access a PDF version of this article here.


As of March 22, 2021, the California Supreme Court’s alteration to Rule 1.1 of the California Rules of Professional Conduct (“CRPC”) went into effect. The change does not alter the text of the rule, but rather adds the following language as “Comment 1” to the rule:

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The duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.

For those who are unfamiliar, CRPC Rule 1.1 sets out the duty of competence for all attorneys in their representation of clients. It requires that “[a] lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” Id. at 1.1(a). Further, if a lawyer lacks competence in a subject matter necessary for the representation of a claim, the lawyer must either personally gain competence in that subject matter, associate in another lawyer with competence, or refer the case to another lawyer that is competent. Id. 1.1(b).

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This change clarifies the advice previously set out in the California State Bar’s Standing Committee on Professional Responsibility’s Formal Opinion No. 2015-193, which advised counsel to “associate with or consult technical consultants” to become competent in the requirements of e-discovery and related issues. Some of those issues include, at least:

  • initially assess e-discovery needs and issues, if any;
  • implement/cause to implement appropriate ESI preservation procedures;
  • analyze and understand a client’s ESI systems and storage;
  • advise the client on available options for collection and preservation of ESI;
  • identify custodians of potentially relevant ESI;
  • engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
  • perform data searches;
  • collect responsive ESI in a manner that preserves the integrity of that ESI; and
  • produce responsive non-privileged ESI in a recognized and appropriate manner.

The language of the newly revised Comment 1 to CRPC 1.1 extends the duty of competence beyond e-discovery issues to apply broadly to any “benefits and risks associated with relevant technology.” However, the intersection between litigators and this new comment to the rule will most commonly crop up around e-discovery issues, especially those related to the e-discovery services and ESI searches attorneys recommend, or fail to recommend, to their clients.

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As such, in order to meet the minimum ethical requirements of competence, attorneys who are unfamiliar with those areas of e-discovery highlighted in Formal Opinion No. 2015-193, addressed above, should find a technical consultant to rely upon for electronic discovery matters.  Just as clients rely upon their attorneys to keep abreast of recent developments in the law, attorneys should clearly communicate with their technical consultants to keep pace with new innovations and developments that apply to their practices.

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As no attorney or technical consultant can be omniscient and all-knowing in a constantly evolving world of technology, it is important that a consultant has their own stable of referral sources, or certified professionals, they can engage to gain access to information on the technological issues facing their clients.

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For instance, in the case of e-discovery, there are 2 important decisions an attorney must make, in collaboration with their technical consultant, to ensure the proper handling of the ESI at the onset of any new litigation:

  • 1. Computer Forensic Imaging: After the sources of relevant ESI have been determined, it is important to engage the services of a certified forensics expert to ensure the defensibility of the collected data.  If opposing counsel disputes the manner of collection, the properly certified expert can then transition into a role in which they can testify to the technology and methods they used in the course of their computer forensic collection.  While this rarely occurs in the discovery phase of litigation, it is an investment in knowing the foundation of your discovery process is on solid footing.
  • 2. Document Review Platform: Once the relevant data has been collected, it is important to work with the technical consultant to choose the appropriate review platform.  There are a number of platforms that are no longer “cost prohibitive” to engage for any size of law firm.  These innovative platforms arm firms with the technology they need to compete with the larger law firms that are already leveraging the review technology in the legal market. 

These 2 steps will ensure that the litigator is in a proper strategic position to 1) review their client’s data as efficiently as possible and 2) more than likely gain a strategic advantage over opposing counsel in terms of getting a better picture of the facts of the case.  Savvy litigators can then decide how best to direct the course of case, and potentially save money on attorneys’ fees.

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After resolving the above issues, the technical experts can engage their team of project managers to help facilitate the filtering/culling of the data prior to the review team needing to actually review documents.   In addition, some of the best platforms have artificial intelligence built in, which will allow the review teams to train their database to help find responsive documents and, thus, speed up their review process.

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In sum, the new Comment 1 to CRPC 1.1 spells out that attorneys must ensure that they keep abreast of technological issues that face their clients. For litigators, that likely means developing and maintaining a relationship with a technology consultant that at least has an understanding of the technology options and risks facing your clients, including available e-discovery tools, who can advise on how and when to access those tools. While there are many other areas of technology that will fall within the scope of CRPC 1.1, e-discovery is a good place for a litigator to start.

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Carl I. S. Mueller is an attorney with The Maloney Firm, APC, and his practice areas include all forms of attorney-client disputes, such as claims against attorney for breaches of fiduciary duties and legal malpractice.

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Colin Dunn is a senior discovery Consultant at iDiscover, which provides consulting services and e-discovery solutions for attorneys, including their proprietary e-discovery platform, Lumix.

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Upcoming MCLE Webinar: Attorney Competence in Technology

Learn about best practices for e-discovery in litigation while fulfilling your duty of competency under CRPC 1.1.

Register at this Eventbrite link.


1 “The Gambler,” Written by Don Schlitz, performed by Kenny Rogers.