LA County Implements New Vaccination Verification Guidance

On September 17, 2021, the Los Angeles County Department of Public Health issued new COVID-19 vaccine verification and testing guidance for food and drink facilities. Beginning October 7, 2021, bars, breweries, wineries, distilleries, nightclubs, and lounges will be required to verify the COVID-19 vaccination status of patrons and employees for indoor service. Other restaurants are encouraged to similarly reserve indoor services for those who are fully vaccinated against COVID-19.

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Verifying Proof of Vaccination

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For the purposes of this order, individuals are considered “fully vaccinated” against COVID-19 two weeks or more after they have received either the second dose in a 2-dose series (e.g., Pfizer-BioNTech or Moderna) or a single-dose vaccine (e.g., Johnson and Johnson [J&J]/Janssen). Los Angeles County has issued guidelines for how businesses may verify individuals’ vaccination and testing statuses:

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View LA County’s Guidance for Verifying Proof of COVID-19 Vaccination here.

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View LA County’s Guidance for Verifying Proof of a Negative COVID-19 Test here.

Requirements for Bars, Breweries, Wineries, Distilleries, Nightclubs, and Lounges

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The Health Department’s new vaccination verification requirements apply to the following facilities:

  • Bars, Breweries, Wineries, and Distilleries, defined as:
    • Bars that have a low-risk food facility public health permit, and
    • Breweries, wineries, and distilleries with a #1, #2, #4, #23, and/or #74 state alcohol license that do not possess or that are not required to have a public health permit to operate.
  • Nightclubs and Lounges that are open only to persons 18 years of age or older, defined as:
    • Nightclub means a commercial establishment dispensing beverages for consumption on the premises and in which dancing is permitted or entertainment is provided, and/or has as its primary source of revenue (a) the sale of alcohol for consumption on the premises, (b) cover charges, or (c) both.
    • A lounge is defined as a business that operates primarily for the preparation, sale, and service of beer, wine, or spirits.

Effective October 7, 2021:

  • Bars, Breweries, Wineries, and Distilleries must require patrons who are 12 years of age or older to provide proof of their COVID-19 vaccination status for entry.
  • Nightclubs and Lounges must require patrons and on-site personnel to provide proof of their COVID-19 vaccination status for entry.

Between October 7, 2021 and November 3, 2021:

  • All patrons of Bars, Breweries, Wineries, and Distilleries and Nightclubs and Lounges must provide proof they have received at least one dose of COVID-19 vaccination for entry into the facility to obtain indoor service.

Beginning November 4, 2021:

  • Bars, Breweries, Wineries, and Distilleries must require patrons who are 12 years of age or older to provide proof of full vaccination against COVID-19 for entry into the facility to obtain indoor service.
  • Nightclubs and Lounges must require patrons to provide proof of full vaccination for entry into the facility to obtain indoor service.
  • All onsite employees of bars, breweries, wineries, distilleries, nightclubs, and lounges must provide their employer with proof of full vaccination against COVID-19.

Eligible on-site employees may be exempt from the above vaccination requirements for qualifying religious and medical reasons. Exempted employees must be tested for COVID-19 at least once per week and wear either a surgical mask or higher-level respirator at all times while in the facility. Click here and navigate to page 10 for more details on employee vaccination exemptions.

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Individuals—not including on-site employees—who do not provide the required proof of vaccination may be served in and/or use the outdoor portions of the facility. These individuals may not remain inside the facility unless they wear a well-fitted maskand are entering the facility for one of the following reasons:

  • As part of their employment to make a delivery or pick-up, provide a service or repair to the facility, or for an emergency or regulatory purpose.
  • To get to the outdoor portion of the facility or to use the restroom.
  • To order, pick-up, or pay for food or drink “to go.”

Recommendations for Restaurants

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Under this order, restaurants are defined as indoor venues that serve food or drink indoors and are required to maintain a valid public health permit to operate. The County Health Officer strongly recommends, but does not require, that restaurants reserve and prioritize indoor seating and service for fully vaccinated patrons. These restaurants are encouraged to verify the full vaccination status of all patrons 12 years of age or older who are seated indoors for food or beverage service, and to serve patrons who cannot provide proof of full vaccination in outdoor portions of the facility.

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Resources for California Employers

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Employers that wish to implement vaccine verification and other COVID-19 prevention-related requirements for their workers, contractors, or other visitors should consult with counsel to develop a clear, written strategy, and, as always, be prepared to adjust to further regulations from local, state, and federal entities. Businesses within the City of Los Angeles should also stay tuned for a potential vaccine verification mandate for indoor restaurants and fitness facilities.

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View the full text of Los Angeles County’s updated public health order here.

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View LA County’s Guidance for Verifying Proof of COVID-19 Vaccination here.

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View LA County’s Guidance for Verifying Proof of a Negative COVID-19 Test here.

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If you have questions regarding the application of any of the updated COVID-19 prevention recommendations and mandates 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.

California Appellate Court Affirms Trial Court’s Ability to Assess Manageability of PAGA Claims

By Lisa Von Eschen, Esq., The Maloney Firm, APC

On September 9, 2021, a California Court of Appeal in Wesson v. Staples, Cal. App. 5th (Cal. App., Sept. 9, 2021) affirmed the lower court’s decision striking the alleged PAGA claims, holding that “trial courts have inherent authority to ensure that PAGA claims will be manageable at trial, and to strike such claims if they cannot be managed.”

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Context

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The Private Attorneys General Act (PAGA) enables employees to file lawsuits on behalf of themselves, other employees, and the State of California for Labor Code violations. In 2009, the California Supreme Court ruled that PAGA actions are not subject to the same rigorous certification procedure required for bringing class action suits.

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Instead, for a representative PAGA claim to advance to trial, it must be “manageable,” or subject to a form of “common proof,” in order to protect the allegedly infringing employer’s right to due process. A PAGA claim’s manageability comes into question when individualized inquiries for a large number of employees are required to determine whether any Labor Code violations have been committed.

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The Issue

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In Wesson v. Staples, Wesson filed a representative PAGA claim alleging that Staples had misclassified himself and 345 other former and current store general managers (GM’s) as exempt executives. Staples moved to strike Wesson’s claim, arguing that litigating their affirmative defense that each GM was properly classified would be unmanageable, as Staples would need to conduct individualized investigations and present proof at trial for each GM.

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The trial court invited Wesson to create a trial plan demonstrating the manageability of his claim. During a subsequent hearing on Staples’ motion, the parties estimated that it would take eight years—six trial days per each of 346 GMs—to litigate Staples’ defense. After Wesson continually insisted that the court lacked the authority to ensure PAGA actions are manageable, and failed to address how to manageably litigate Staples’ affirmative defense, the court granted Staples’ motion to strike the PAGA claim.

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The Appellate Court’s Decision

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In its decision, the California Court of Appeal affirmed the trial court’s ruling, concluding that:

(1) courts have inherent authority to ensure that PAGA claims can be fairly and efficiently tried and, if necessary, may strike claims that cannot be rendered manageable; (2) as a matter of due process, defendants are entitled to a fair opportunity to litigate available affirmative defenses, and a court’s manageability assessment should account for them; and (3) given the state of the record and Wesson’s lack of cooperation with the trial court’s manageability inquiry, the court did not abuse its discretion in striking his PAGA claim as unmanageable.

Staples presented evidence, which Wesson did not contest on appeal, that the significant variation in Staples GMs’ work experiences would require ‘individualized assessments of each GM’s classification and would lead to “an unmanageable mess” that “would waste the time and resources of the Court and the parties.”’ As the trial court was not presented with any “apparent way to litigate Staples’s affirmative defense in a fair and expeditious manner,” the appellate court affirmed that “the trial court did not abuse its discretion in striking Wesson’s claim as unmanageable.”

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Nonetheless, the appellate court asserted that PAGA claims will not always be struck if they are found to be unmanageable, and that courts “should work with the parties to render a PAGA claim manageable by adopting a feasible trial plan or limiting the claim’s scope.” The appellate court further clarified that it did “not hold that a PAGA misclassification case can never be managed through common-proof methods,” but that “Wesson’s lack of cooperation with the trial court’s inquiry in this regard stymied the court’s efforts to devise a plan that would allow the action to proceed.”

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The Takeaway

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Wesson is the first California appellate decision to acknowledge a trial court’s ability to dismiss unmanageable PAGA claims, but its application may be somewhat limited by its facts. Although it recognized the trial court’s interest in ensuring an efficient and fair trial, the Court of Appeal did not provide guidance or factors for determining which PAGA claims – short of those that would take eight years in trial – are not manageable.

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The court also did not address whether plaintiffs bear the burden to prove manageability (as in class actions), or if defendants must prove unmanageability. While Wesson is not an open door to dismissal of representative PAGA actions, a trial court’s ability to assess manageability may help employers reduce the breadth of potential claims as well as supply defensive strategies and settlement leverage.

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

Biden Expands Vaccine Mandate to Include Employers of 100+ Employees, Amongst Others

On September 9, 2021, President Biden introduced a far-reaching, six-part strategy to combat the continuing spread of COVID-19 across the country. Significantly, the plan will soon require more employers, including all public and private employers with over 100 employees, to ensure all workers are either fully vaccinated or tested weekly. This mandate is expected to impact over 80 million American workers.

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The United States Occupational Safety and Health Administration (OSHA) will soon release an Emergency Temporary Standard (ETS) codifying this requirement. In the meantime, California employers should begin reevaluating their COVID-19 prevention plans to comply with these impending mandates.

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Covered Employers and Provisions

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Although President Biden has encouraged all businesses and entities in the private and public sectors to do their part to encourage vaccination, the federal vaccination verification and/or testing requirements have been expanded to include the following employers and workers:

  • All Employers with 100+ Employees,
  • Federal Workers and Specified Contractors that Do Business with the Federal Government, and
  • Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings

Employers with 100+ employees who are subject to this upcoming vaccination mandate will be required to ensure that their workforce is either fully vaccinated or require any unvaccinated workers to produce a negative test result on at least a weekly basis. These employers must also provide their workers with paid time off to get vaccinated and to recover post-vaccination.

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President Biden’s plan further encourages, but does not require, entertainment venues (such as sports arenas, large concert halls, and other venues where large groups of people gather) to require that their patrons be vaccinated or show a negative test for entry.

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Covered employers should monitor OSHA’s website for further guidance on implementing these vaccine verification and testing requirements.

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Existing Guidance for Implementing Vaccine Verification and Testing Requirements

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As we noted last week, the California Department of Public Health (CDPH) has issued limited guidance on how organizations in California may implement their own COVID-19 vaccine verification processes.

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The CDPH has advised the following:

When seeking confirmation of COVID-19 vaccination status, organizations may manually review a paper or digital copy of individual’s COVID-19 Vaccine Record Card or use a SMART Health Card-compatible reader to confirm the information contained in the digital vaccine record, with the individual’s consent.

As part of that process, California recommends that organizations adhere to the following standards and principles for COVID-19 vaccine verification:

  • Records should be verified through a private and confidential process. 
  • Verification should not create or perpetuate social or health inequities or lead to discrimination.
  • Verification should not create barriers to essential services or restrict access based on a protected characteristic. 
  • Workers who are not fully vaccinated, or for whom vaccine status is unknown or documentation is not provided, should be considered unvaccinated. 

The California Department of Fair Employment and Housing (DFEH) has also released guidance on how employers may comply with the Fair Employment and Housing Act (FEHA), which prohibits workplace harassment, while implementing vaccine verification and other COVID-19 prevention-related policies. Access this guidance here.

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Resources for California Employers

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Employers that wish to implement vaccine verification and other COVID-19 prevention-related requirements for their workers, contractors, or other visitors should consult with counsel to develop a clear, written strategy, and, as always, be prepared to adjust to further regulations from local, state, and federal entities. California employers should also stay tuned for anticipated vaccination requirements for visitors of some indoor venues imposed by local jurisdictions.

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View President Biden’s Path Out of the Pandemic here.

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View the CDPH’s Guidelines for Implementing a COVID-19 Vaccine Verification Process here.

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If you have questions regarding the application of any of the updated COVID-19 prevention recommendations and mandates 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.

The Buck Stops Here: Retainer Agreements Cannot Grant Attorneys The Right To Enter A Settlement Agreement Over Their Client’s Objections

By Carl Mueller, Esq., The Maloney Firm, APC

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On August 30, 2021, the Cal. Court of Appeal published Amjadi v. Brown (2021 WL 3855831), which clarified that attorneys cannot use retainer agreements to prospectively grant themselves the right to enter into settlement agreements over the objections of their clients. The appellate court has referred the attorneys involved in the action to the California State Bar for discipline due to several violations of the California Rules of Professional Conduct (“CRPC”).

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The Issue

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Before trial, the attorney-client relationship between Plaintiff and her counsel, Kevin Jolly of Jolly Berry Law, soured, causing Jolly to file a motion to withdraw, which was denied by the trial court. Subsequently, Jolly approached Defense’s counsel regarding renewing their offer—which was previously rejected by Plaintiff—to settle the case for $150,000. After Defense counsel renewed their offer, Jolly informed Plaintiff that he was signing the offer on her behalf. Although Plaintiff objected to the settlement offer and ordered Jolly to sign a substitution of attorney form, Jolly signed the settlement agreement.

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The trial court accepted the settlement and dismissed Plaintiff’s subsequent declaration objecting to the settlement and dismissal. The trial court based its decision on the following provision within the settlement agreement between Plaintiff and Jolly:

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CLIENT agrees that if a settlement offer is tendered in the case by any defendants and the ATTORNEY believes in good faith that the settlement offer is reasonable, and the acceptance of the offer is in the CLIENT’s best interest, and should be accepted, CLIENT authorizes ATTORNEY to accept said offer on CLIENT’s behalf, at ATTORNEY’s sole discretion.

The Appellate Court’s Decision

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The Court of Appeal rightly held that this provision of the retainer agreement runs afoul of CRPC 1.2(a), which states that “a lawyer shall abide by a client’s decision whether to settle a matter.” While the commentary of CRPC 1.2 does allow advance approvals of settlements, it does not authorize attorneys to “settle a case over a client’s contemporaneous objection.” As such, because the provision was illegal and invalid, the order approving the settlement was overturned. Indeed, the Court of Appeal doubted that such a blanket authorization would be sufficiently specific to be valid, particularly in the absence of a waiver.

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Additionally, the Court of Appeal found that the provision created an immediate and “direct conflict of interest under [CRPC] 1.7 (c)” when a client does object to a settlement. To wit, and additionally, the Court of Appeal referred the attorney to the State Bar for investigation for potential violations of CRPC 1.6, 1.7, and 1.9.

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The Takeaway

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A necessary consideration not within the text of the Amjadi decision is whether or not the rest of the contingency fee agreement retains validity in light of the finding that the provision at issue is illegal. In this case, the retainer agreement will likely be rendered invalid. As such, if the client voids the agreement, the attorney will no longer be entitled to a contingency fee, but only to a “reasonable fee.” Gutierrez v. Girardi (2011) 194 Cal.App.4th 925; Flannery v. Prentice (2001) 26 Cal.4th 572.

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A further note for any attorney still considering seeking advance authority to enter settlement agreements on behalf of their clients: it can be done legally, but it is difficult to do. As the Court of Appeal ruled in Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, a retainer agreement that granted an attorney the right to settle upon receipt of minimum offer of $150,000 was not facially invalid. The specific circumstances, importantly the minimum amount of the offer, were key in determining the validity of that retainer agreement provision. However, that case still resulted in the attorney facing a potential conflict when the client objected to the final settlement.

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Therefore, any attorney seeking advance approval from their clients in their retainer agreements to enter settlement agreements should proceed with caution.

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About the Author:

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Carl Mueller is a business litigation attorney that represents clients in all phases of civil litigation. Mr. Mueller’s practice has a focus on attorney-client disputes of all kinds. If you have questions regarding this article contact Carl Mueller at cmueller@maloneyfirm.com.

Testing and Vaccine Verification Requirements Across California

On Monday, August 30, 2021, California Assemblymember Buffy Wicks announced that her proposed vaccine verification bill, which would require all California employers to impose testing or proof of vaccination mandates on their employees, will not move forward in the State Legislature until 2022. Nonetheless, several local governments and businesses have implemented or are considering vaccine verification requirements for both employees and patrons of indoor businesses. Learn more about existing and impending proof of vaccination mandates across California below.

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State of California

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California’s Department of Public Health has issued a patchwork of vaccine verification and testing mandates for visitors and workers in certain healthcare and other high risk settings, workers in schools, and other state employees. The department has also recently issued limited guidance on how organizations may implement their own COVID-19 vaccine verification processes. While a more comprehensive, statewide proof of vaccination mandate looks to be off the table this year, California continues to encourage “private businesses and local governments across the state to follow the state’s lead and adopt vaccine verification systems for their employees.”

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City and County of San Francisco

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On August 12, 2021, the City and County of San Francisco issued an order requiring certain businesses to check for proof of full vaccination from both patrons 12 years and older and staff. Although the order “strongly urges” all businesses and governmental entities to consider implementing vaccine verification measures, only the following businesses are currently subject to this order:

  • Food Services: Operators or hosts of establishments or events where food or drink is served indoors—including, but not limited to, dining establishments, bars, clubs, theaters, and entertainment venues.
  • Fitness Services: Gyms, recreation facilities, yoga studios, dance studios, and other fitness establishments, where any patrons engage in cardiovascular, aerobic, strength training, or other exercise involving elevated breathing.

For the purposes of this order, individuals are “fully vaccinated” two weeks after completing the entire recommended series of vaccination with a vaccine authorized to prevent COVID-19 by the FDA or the World Health Organization (WHO).

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For eligible patrons, these vaccine verification provisions took effect on August 20, 2021. Eligible staff must provide proof of full vaccination by October 13, 2021.

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The order also expands California’s August 5, 2021 vaccination and testing requirements for workers in high-risk settings and healthcare facilities to include healthcare personnel in adult care facilities, adult day programs licensed by the California Department of Social Services, and dental offices.

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Certain attendees, staff, and performers of “large” and “mega” indoor events are subject to new, more stringent vaccine verification requirements under the order as well.

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For more information on San Francisco City and County’s order, navigate here.

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Los Angeles Area

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In early August, Los Angeles City and County indicated that they are considering similar requirements, which would likely require patrons and workers to provide proof of vaccination in certain indoor businesses. While Los Angeles has not yet released such a mandate, nearby jurisdictions, including Palm Springs and Cathedral City, have issued vaccine verification requirements for indoor bars and restaurants.

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Resources for California Employers

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California employers should be prepared to adjust to more regulations from both local jurisdictions and the State, as the rapid spread of the highly contagious Delta variant continues to necessitate more stringent COVID-19 prevention measures.

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View the City and County of San Francisco’s Health Officer Order here.

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View the California Department of Public Health’s Guidelines for Implementing a COVID-19 Vaccine Verification Process here.

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View all guidance documents from the California Department of Public Health here.

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If you have questions regarding the application of any of the updated COVID-19 prevention recommendations and mandates 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.

California Issues Updated Vaccination Verification and Testing Requirements and Recommendations

Note: On July 28, 2021, the CDPH issued new guidance recommending that all Californians, regardless of vaccination status, wear masks while indoors. The guidance also adds Adult and Senior Care Facilities to the list of settings where all individuals must wear masks indoors. Access the updated Guidance here.

On July 26, 2021, Governor Newsom announced that all California state workers and certain workers in health care and high risk congregate settings will be required to either show proof of vaccination or be tested regularly for COVID-19. The announcement encourages all local governments and businesses to adopt similar measures. The new vaccination verification and other COVID-19 prevention requirements for health care and other high-risk settings are codified in an Order released by the California Department of Public Health (CDPH). Learn more about these new mandates and recommendations below.

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Which Workers are Affected?

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The CDPH’s July 26, 2021 Order specifically applies to workers in certain health care, long-term care, and other high-risk congregate facilities, which include:

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Category A. Acute Health Care and Long-Term Care Settings:

  • General Acute Care Hospitals
  • Skilled Nursing Facilities (including Subacute Facilities)
  • Intermediate Care Facilities

Category B. High-Risk Congregate Settings: 

Category C. Other Health Care Settings:

  • Acute Psychiatric Hospitals
  • Adult Day Health Care Centers
  • Adult Day Programs Licensed by the California Department of Social Services
  • Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
  • Ambulatory Surgery Centers
  • Chemical Dependency Recovery Hospitals
  • Clinics & Doctor Offices (including behavioral health, surgical)
  • Congregate Living Health Facilities
  • Dental Offices
  • Dialysis Centers
  • Hospice Facilities
  • Pediatric Day Health and Respite Care Facilities
  • Residential Substance Use Treatment and Mental Health Treatment Facilities

Vaccination Verification, Masking, and Testing Requirements

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Vaccination Verification

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Eligible facilities will be required to create and execute a plan to track and verify the vaccination status of all workers pursuant to the CDPH Guidance for Vaccine Records Guidelines & Standards. Vaccination verification records collected must be made available, upon request, to the local health jurisdiction for COVID-19 investigation purposes. Workers who are not fully vaccinated, for whom vaccine status is unknown, or documentation is not provided, are considered unvaccinated.

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Workers are considered “fully vaccinated” against COVID-19 two weeks after they have received either the second dose in a 2-dose series or a single-dose vaccine with emergency use authorization or approval from the FDA, or authorization from the World Health Organization (WHO).

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Masking/Respirators

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These facilities must still adhere to the current CDPH Masking Guidance, as well as Cal/OSHA’s Aerosol Transmissible Diseases (ATD) Standard and Emergency Temporary Standards (ETS) for COVID-19 Prevention. The Order further requires facilities to provide either respirators or FDA-cleared surgical masks to unvaccinated and incompletely vaccinated workers as follows:

  • Category A: All unvaccinated and incompletely vaccinated workers who work indoors where (1) care is provided to patients or residents, or (2) to which patients or residents have access for any purpose must be provided respirators, and are strongly encouraged to wear them. These facilities must provide the respirators at no cost, and workers must be instructed on how to properly wear the respirators and how to perform a seal check according to the manufacturer’s instructions.
  • Categories B and C: Where Title 8 of the California Code of Regulations does not require the use of respirators, facilities are required to provide all unvaccinated or incompletely vaccinated workers with FDA-cleared surgical masks. Workers are required to wear FDA-cleared surgical masks in indoor settings anywhere they are working with another person.

Testing

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Testing requirements vary slightly for workers in different healthcare and high-risk congregate facilities. While all asymptomatic unvaccinated or incompletely vaccinated workers are required to undergo diagnostic screening testing, workers in Category A facilities must be tested at least twice weekly and workers in Categories B and C must be tested at least once weekly. Workers may choose either antigen or molecular tests to satisfy this requirement, but any PCR (molecular) or antigen test used must either have Emergency Use Authorization by the FDA or be operating per the Laboratory Developed Test requirements by the U.S. Centers for Medicare and Medicaid Services.

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Affected facilities must report applicable contact tracing and test results to the appropriate local public health department. The CDPH recommends that facilities with workers required to undergo workplace diagnostic screening testing create plans for tracking test results and conducting workplace contact tracing to fulfill this requirement.

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When Do These Requirements Take Effect?

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This order will take effect on August 9, 2021, and eligible facilities must be in full compliance with the Order by August 23, 2021.

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Other State and Federal COVD-19 Prevention Recommendations

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Newsom’s press release further encourages local governments and businesses across the state to adopt similar COVID-19 prevention requirements. This announcement comes as local governments, such as Los Angeles County, along with national organizations, such as the CDC, reinstate masking requirements and recommendations, regardless of vaccination status. On July 27, 2021 the CDC issued updated recommendations advising people in areas with substantial or high transmission, such as Los Angeles County, to wears masks indoors, regardless of vaccination status.

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These recommendations come as California experiences the fastest increase of COVID-19 cases during the entire pandemic, which is, in part, due to the spread of the Delta variant. California employers should prepare to adapt to further vaccination, testing, and masking recommendations and requirements in the coming months.

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Resources for California Employers

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View the CDPH’s July 26, 2021 Order here.

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View Governor Newsom’s July 26, 2021 press release here.

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Learn more about Los Angeles County’s renewed masking requirements here.

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View the CDC’s July 27, 2021 Interim Public Health Recommendations for Fully Vaccinated People here.

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If you have questions regarding the application of any of the updated COVID-19 prevention recommendations and mandates 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.

Best Practices Advice From The Bully Pulpit: Court Of Appeal Uses Published Decision To Shame Lawyer When No Legal Malpractice Claim Arose From Bad Conduct

By Carl I. S. Mueller, Esq., The Maloney Firm, APC

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In White v. Molfetta (2021) 64 Cal.App.5th 628, a California Court of Appeal decision filed on May 24, 2021, the court made the unusual choice to publicly and explicitly shame an attorney, writing that the court “cannot condone such laxity on the part of a lawyer toward his client,” and stating the case was “publish [ed] in the hope the embarrassment we [the court] feel about the case can lead to improvement.” While the law within the decision is unremarkable, the purpose of the decision should serve as a reminder to all practitioners of the duties they owe to their clients.

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The plaintiff, White, was convicted of multiple crimes, leading to his incarceration. The defendant, Molfetta, was appointed to White’s defense in the underlying criminal trial. After White’s conviction, Molfetta filed a notice of appeal. Another attorney, Morse, represented White on appeal. White’s appeals, all the way through the California Supreme Court, were unsuccessful. 

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White then wanted to begin a federal habeas corpus petition, and as such wrote to Molfetta to obtain his client file. Molfetta did not respond. White subsequently complained to the Cal. State Bar that Molfetta had failed to turn over the client file, but Molfetta again failed to produce the client file. White then asked the criminal court to order the client file produced, but to no avail. White also proceeded to filing the civil action underlying the appeal, but Molfetta still failed to provide the client file.

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Ultimately, after reneging on his promises and ignoring court orders to hand over White’s client file, Molfetta delivered the client file more than a year after first being asked. However, even though he now had the client file, White failed to timely file his habeas corpus petition.

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Based on these facts, the Court dismissed White’s civil case against Molfetta for a few simple reasons:

  • a) White’s state court appeals were not affected by Molfetta’s failure to turn over the client file, because neither White or Morse had actually made an explicit request to White to turn over the client file until the state court of appeals process concluded; and
  • b) White’s failure to timely pursue his habeas corpus petition in Federal Court meant that Molfetta’s delay in turning over the client file did not cause any harm to White.

In short, there was no liability for Molfetta, despite his clear dereliction in duty to his client, because there was no harm actually caused by his bad acts. But, the court wanted to take the opportunity to impart the following wisdom on attorneys:

We are a profession. Like doctors and ministers and scientists, we have an obligation to perform to the absolute best of our abilities regardless of our own circumstances or those of our client. We owe more than was provided here. But on the facts of this case, the law does not permit a recovery.

However, a better lesson may be that anytime an attorney comes into a case, it is a best practice to send a clear and explicit request to predecessor counsel for the entirety of the client file, pursuant to Cal. Rules of Professional Conduct 1.16. Something successor counsel, Morse, simply did not do.

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About the Author:

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Carl Mueller is a business litigation attorney that represents clients in all phases of civil litigation. Mr. Mueller’s practice has a focus on attorney-client disputes of all kinds. If you have questions regarding this article contact Carl Mueller at cmueller@maloneyfirm.com.

Calculating the Premium Wage for Missed Meal/Rest Breaks

By Nicholas Grether, Esq., The Maloney Firm, APC

When an employer does not provide an employee a proper meal or rest break, California law requires that “the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation.” Labor Code section 226.7(c). This additional hour is known as a premium wage, but how does an employer calculate the regular rate of compensation? On July 15, 2021, the California Supreme Court in Ferra v. Loews Hollywood Hotel, S259172, explained that the term “regular rate of compensation” for a premium wage has the same meaning as “regular rate of pay” for calculating overtime. What does this mean for employers?

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The regular rate of pay/compensation includes hourly earnings, salary, piecework earnings, flat sum bonuses, commissions, and any other non-discretionary income. As an example, if an employer gives a $100 bonus for working on the weekend, that has to be included in the regular rate, because that bonus would be additional wages earned by the employee for their work. These calculations would have to be made for each workweek.

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If in the example above, let’s assume the employee works 8 hours per day, 5 days a week, and earns $15.00 per hour. The employee would earn $700 in a given week ($15 x 8 hours per day x 5 days per week = $600 + $100 nondiscretionary bonus). Divide $700 by the number of hours worked in the workweek (40), which results in $17.50 per hour as the regular rate of pay or compensation. If during the workweek, the employee missed one meal break and had one rest break cut shorter than 10 minutes, the employee would be entitled 2 premium wage payments at $17.50 each at the regular rate, not the employee’s base rate of $15.00.  

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What Can Employers Do?

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Given that this method of calculating the premium wage can only increase potential exposure for meal and rest break violations, employers should ensure they have policies and procedures in place to prevent violations and when appropriate pay the appropriate meal or break premium to the employee. The Court found that this ruling should apply retroactively, so employers should audit their payments of premium wages to determine if there is potential liability for underpayment. Of course, providing proper meal and rest breaks to employees ensures that they are properly rested and serves as the best defense to such claims. Employer should also examine their policies and practices for making additional payments beyond base wages to hourly employees. Clear communication about which payments are discretionary or nondiscretionary will assist in calculating premium wages properly and defending against any lawsuits.

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About the Author:

Nicholas Grether is an employment attorney in the Employment Law Department at The Maloney Firm, APC. If you have questions regarding this article, contact Nicholas Grether at ngrether@maloneyfirm.com.

Los Angeles County Renews Mask Mandate

On Friday, July 16, the Los Angeles County Department of Public Health (Public Health) renewed the county’s mask mandate, requiring all persons, regardless of vaccination status, to wear face masks while indoors. Several other counties across California have issued ordinances “strongly recommending” masking in public indoor spaces, and may be considering renewing their respective mask mandates.

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Los Angeles County Mask Mandate

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Since California’s June 15 reopening, community transmission of COVID-19 within LA County has risen significantly, more than quadrupling in the past month. In order to curb this trend, Public Health has issued an order requiring all persons, regardless of vaccination status, to wear face masks while in all indoor public settings and businesses.

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Individuals, businesses, venue operators, and other hosts of public indoor settings must now:

  • Require all patrons and employees, regardless of their vaccination status, to wear masks in all indoor settings (for example: offices, retail, restaurants, theaters, family entertainment centers, and meetings), and
  • Post clearly visible and easy to read signage at all entry points for indoor and outdoor settings to communicate the masking requirements for patrons.

Within workplaces, certain employees may be exempt from wearing a mask when performing specific tasks which cannot feasibly be performed while wearing a mask. Learn more about this limited exemption here.

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LA County’s mask mandate overrides Cal/OSHA’s recently relaxed masking guidance. Therefore, employers, where applicable, should update their COVID-19 prevention policies to adjust to LA County’s new guidance.

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“Strong” Masking Recommendations in Other California Counties

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Other local jurisdictions, such as Alameda, Contra Costa, Fresno, Marin, San Francisco, San Mateo, Santa Clara, Sonoma, Sacramento, and Yolo counties, and the City of Berkeley, have strongly urged businesses to adopt universal masking requirements indoors, and may reimplement mask mandates in the coming weeks. Governments across the State will be closely tracking the Delta variant and sharp rise in COVID-19 cases to potentially adjust their guidance.

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Resources for California Employers

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In spite of relaxed statewide regulations, California employers should be prepared to make adjustments to their COVID-19 prevention strategies, and track and follow more restrictive requirements imposed by local regulatory bodies and governments.

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Find the full text of Los Angeles County’s renewed mask mandate here.

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If you have questions regarding the application of LA County’s mask mandate 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.

Cal/OSHA’s Revised COVID-19 ETS is Approved, Bringing Relaxed Masking and Physical Distancing Requirements

Update: Cal/OSHA revised their Model COVID-19 Prevention Program (CPP) on June 29, 2021 to reflect the changes in the newly revised COVID-19 ETS. Access the newly revised Model CPP here.

On June 17, 2021, Cal/OSHA’s Occupational Safety & Health Standards Board (OSHSB) approved significant revisions to the Emergency Temporary Standards for COVID-19 Prevention (ETS), which include relaxed masking and physical distancing requirements. These revisions took effect immediately upon filing with California’s Secretary of State, per an executive order from Governor Newsom.

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Cal/OSHA has also released a set of FAQs accompanying the revised ETS, which clarify how employers may document employees’ vaccination status and comply with voluntary respirator requirements, amongst other concerns. Learn more about the most significant revisions to the ETS and ETS FAQs below.

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Background

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As a reminder, California Department of Public Health (CDPH) guidance regarding California’s June 15 “reopening” primarily applies to customers and the general public; California employers and employees are largely subject to a different set of COVID-19-related health and safety standards in the workplace, which are drafted by Cal/OSHA and codified in its ETS.

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Earlier this month, OSHSB voted to withdraw updates to the COVID-19 ETS passed on June 3, 2021 in order to bring Cal/OSHA’s guidance in line with CDC and CDPH recommendations. The revised ETS aligns with CDPH recommendations for face coverings and social distancing, and implements enhanced COVID-19-prevention protocols in the workplace.

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Under normal circumstances, the revised ETS would have taken effect on or before June 28, after approval from California’s Office of Administrative Law. However, Governor Newsom signed an executive order shortly after OSHSB’s June 17 meeting making these revisions effective immediately, upon filing with California’s Secretary of State.

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Most Significant Revisions to the ETS

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The newly revised ETS holds many exemptions for “fully vaccinated” workers. Workers are considered fully vaccinated under Cal/OSHA’s ETS when their employer has documented that the person has 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. In a change from the June 3 revisions, these vaccines must be either FDA approved, have emergency use authorization from the FDA, or, for persons fully vaccinated outside of the United States, be listed for emergency use by the World Health Organization (WHO).

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The FAQs that accompany the revised ETS offer several suggestions detailing how employers may document employees’ vaccination status, including:

  • Employees provide proof of vaccination (vaccine card, image of vaccine card, or health care document showing vaccination status) and the employer maintains a copy,
  • Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself, or
  • Employees self-attest to vaccination status and the employer maintains a record of who self-attests.

If an employee declines to submit proof of vaccination during an employer’s documentation process, the employer must treat the employee as unvaccinated and must not take disciplinary or discriminatory action against the employee. The FAQs further specify that employers are not prohibited by Cal/OSHA from requiring all employees to wear face coverings in lieu of implementing a documentation process.

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Face Coverings/Masking

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Cal/OSHA has eliminated all face covering requirements outdoors, except in certain outbreak settings. However, employers should train workers on CDPH recommendations for outdoor use of face coverings, and should be mindful of certain settings in which the CDPH requires face coverings regardless of vaccination status, such as public transit, childcare, and healthcare settings.

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Fully Vaccinated Employees: Under the updated regulations, fully vaccinated employees are no longer required by Cal/OSHA to wear face coverings in the workplace, regardless of other individuals’ vaccination status or whether the workplace is indoors or outdoors. However, fully vaccinated employees must be allowed to continue wearing face coverings in the workplace without fear of retaliation.

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Unvaccinated Employees: Employees who are not fully vaccinated must be provided with and properly wear face coverings when they are working indoors or in a vehicle, with the following exceptions:

  • (1) When an employee is alone in a room or vehicle,
  • (2) While eating or drinking at the workplace, provided six feet of physical distancing and maximum feasible ventilation with outdoor air,
  • (3) Employees wearing respirators required by the employer and used in compliance with Cal/OSHA’s respirator standard,
  • (4) Employees who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing-impaired person, and
  • (5) Specific tasks which cannot feasibly be performed with a face covering (with some additional caveats).

Employees exempt from face covering requirements due to medical conditions, mental health conditions, or disabilities are still required to wear effective, non-restrictive alternatives, such as face shields with drapes at the bottom, if their condition permits it. Aside from fully vaccinated employees, any employee not wearing a face covering due to the exemptions listed above in (4) and (5) and not wearing a non-restrictive alternative, when applicable, must maintain six feet of physical distancing unless the unmasked employee is tested at least weekly for COVID-19 during paid time and no cost to the employee.

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Even when face coverings are not required, employers must provide face coverings to their employees upon request, at no cost to the employee, regardless of vaccination status.

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Acceptable face coverings include surgical masks, medical procedure masks, respirators worn voluntarily, or tightly woven fabric or non-woven material of at least two layers, and do not include scarves, ski masks, balaclavas, bandanas, turtlenecks, collars, or single layers of fabric. Face coverings must not have visible holes or openings and must cover the nose and mouth.

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Respirators

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In a shift from the June 3 revisions, Cal/OSHA will require employers to provide respirators for voluntary use (instead of another acceptable face covering) to unvaccinated employees who are working indoors or in vehicles with more than one person upon the employees’ request. Whenever an employer makes respirators for voluntary use available, either at an unvaccinated employee’s request or in certain outbreak settings, employers must encourage their use, ensure that employees are provided with a respirator of the correct size, and provide basic instruction on their proper use. This provision took effect immediately upon the revised ETS’s effective date.

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In its FAQs, Cal/OSHA has provided further guidance on how employers may provide respirators “upon request.” Cal/OSHA suggests that employers may “initially stock respirators and offer them to employees, or poll workers to determine which employees wish to be provided a respirator before obtaining them.” After an employer has determined that it has employees who wish to wear respirators, the employer should maintain a supply of respirators of the correct size and type to fulfill “reasonably foreseeable requests” upon demand. Employers may also permit employees to select and purchase their own respirators if the employer reimburses the employee in a timely manner. Employers are under a continuing obligation to provide requested respirators to unvaccinated employees “as soon as possible.”

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For more information on how to purchase and when to replace respirators, navigate to the “Respirators” section in the ETS FAQs.

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Physical Distancing

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Most physical distancing requirements have been eliminated immediately upon the ETS’s effective date, in line with CDPH Guidance. However, employers may need to reinstitute physical distancing protocols when there is a qualifying “outbreak” in the workplace.

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Notice and Training Requirements

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The ETS currently requires employers to provide employees with written notice when employees at the worksite may have been exposed to COVID-19. The updated ETS also requires employers to provide verbal notice in a language understandable by the employee when the employer should reasonably know that an employee either has not received the written notice or has limited literacy in the language used in the notice.

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Employers must also provide training to their employees detailing their COVID-19 policy; their policy for providing respirators; when respirators are provided for voluntary use, how to properly wear respirators; face covering requirements; and other related topics.

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Testing

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Employers are generally no longer required to make COVID-19 testing available to employees who are asymptomatic and either fully vaccinated or naturally immune (essentially, had COVID-19 within the last 90 days, and have returned to work pursuant to Cal/OSHA’s requirements). The FAQs clarify that employers are required to offer COVID-19 testing at no cost to the employee during paid time to:

  • Symptomatic, unvaccinated employees, regardless of whether there is a known exposure,
  • Unvaccinated employees after an exposure,
  • Vaccinated employees after an exposure if they develop symptoms,
  • Unvaccinated employees in an outbreak, and
  • All employees in a major outbreak.

Exclusion from the Workplace

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The ETS requires employers, in many circumstances, to exclude COVID-19 cases and employees who had a close contact with a COVID-19 case from the workplace. Employees are exempt from this exclusion requirement if they are either fully vaccinated before the close contact and do not develop COVID-19 symptoms, or naturally immune.

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Employers should note that exclusion pay is subject to existing wage payment obligations, and must be paid at the employee’s regular rate of pay no later than the regular pay day for the pay period(s) in which the employee is excluded. Cal/OSHA emphasizes that unpaid exclusion wages are subject to enforcement.

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Ventilation Systems

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Employers are now required to evaluate ventilation systems in the workplace to maximize outdoor air and increase filtration efficiency, and evaluate the potential need for additional air cleaning systems.

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Revised Definitions

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Close Contact

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“Close contact,” for the purposes of the revised ETS, 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. Employees have not had a close contact if they wore a respirator required by the employer and used in compliance with Cal/OSHA’s respirator standard, whenever they were within six feet of the COVID-19 case during the high-risk exposure period.

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Cal/OSHA specifies the conditions under which employees may return to work, including after a “close contact” with COVID-19, on page 13 of the revised ETS.

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Exposed Groups

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The newly revised ETS exchanges the term “exposed workplace” for “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.”

Exposed groups may include the employees of more than one employer. The following situations are exempt from this definition:

  • For the purpose of determining the exposed group, a place where persons momentarily pass through while everyone is wearing face coverings, without congregating, is not a work location, working area, or a common area at work.
  • If the COVID-19 case was part of a distinct group of employees who are not present at the workplace at the same time as other employees, for instance a work crew or shift that does not overlap with another work crew or shift, only employees within that distinct group are part of the exposed group.
  • If the COVID-19 case visited a work location, working area, or a common area at work for less than 15 minutes during the high-risk exposure period, and the COVID-19 case was wearing a face covering during the entire visit, other people at the work location, working area, or common area are not part of the exposed group.

Outbreaks

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Outbreaks occur in the workplace when three or more employee COVID-19 cases within an “exposed group,” as defined above, visited the workplace during their high-risk exposure period at any time during a 14-day period.

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During outbreaks, all employees must wear face coverings indoors and outdoors when six-feet physical distancing cannot be maintained, regardless of vaccination status. Employers are required to evaluate whether it is necessary to implement physical distancing and barriers during an outbreak.

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“Major COVID-19 outbreaks,” which occur when 20 or more employee COVID-19 cases in an exposed group visit the workplace during their high-risk exposure period within a 30 day period, are subject to more stringent testing, physical distancing, and other requirements, as discussed on page 18 of the revised ETS.

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Resources for California Employers

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As most local governments (such as Los Angeles County) have rescinded most of their industry-specific COVID-19 prevention protocols, in line with California’s Beyond the Blueprint framework, California employers should primarily monitor Cal/OSHA’s ETS and ETS FAQs for continuing COVID-19-related guidance.

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View the full text of the revised ETS, which went into effect on June 17, 2021, here.

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View the ETS’s accompanying FAQs here.

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View Cal/OSHAs Respiratory Protection Standard (Cal. Code. Regs., tit. 8, section 5144) 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.