Client Alert: LA County Businesses May Now Choose to Exempt Fully Vaccinated Workers and Visitors From Masking Indoors

On February 23, 2022 the Los Angeles County Public Health Department announced that, beginning February 25, 2022, businesses may choose to exempt fully vaccinated customers, visitors, and onsite workers from the County’s universal indoor masking requirements. In order to implement these exemptions, businesses must verify that all customers and onsite workers are either fully vaccinated or have recently tested negative for COVID-19 using a viral test.

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As of Friday, February 25, 2022, businesses in Los Angeles County may implement any of the following three policies to comply with the County’s masking order:

  • Option 1: Businesses may allow both fully vaccinated customers/visitors and onsite workers to unmask while indoors, only if they:
    • Verify proof of either full vaccination against COVID-19 or a recent negative COVID-19 viral test for all customers/visitors and onsite workers prior to entry. See the chart below for more details.
  • Option 2: Businesses may allow only fully vaccinated customers/visitors to unmask while indoors, only if they:
    • Verify proof of either full vaccination against COVID-19 or a recent negative COVID-19 viral test for all customers/visitors. See the chart below for more details.
  • Option 3: Businesses may continue to require all persons, regardless of vaccination status, to mask while indoors.

Under Options 1 and 2, persons who are not fully vaccinated, or have not shown proof of full vaccination, may still enter indoor businesses, but must show proof of a recent negative COVID-19 viral test and wear a mask while indoors. Certain exemptions to the universal masking requirements, such as when persons are actively eating or drinking, continue to apply regardless of vaccination status.

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Resources for California Businesses

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Access Los Angeles County’s Business Toolkit for Complying with Masking Orders here. Businesses can find appropriate signage and more information on complying with the masking order at this link.

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Learn more about verifying full vaccination here.

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Learn more about verifying negative COVID-19 tests here.

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Access the full Responding Together at Work and in the Community Order here.

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If you have questions regarding this article, please contact Patrick Maloney or Lisa Von Eschen of the Maloney Firm’s Employment Law Department.

The Maloney Firm Welcomes Three New Attorneys to Our Litigation Department

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The Maloney Firm is pleased to welcome Elizabeth Schaus, Ron Torres, and Ethan Kraft to our litigation department.

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Elizabeth T. Schaus

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Elizabeth Schaus is an experienced litigator who represents clients in civil actions arising primarily from catastrophic bodily injury and wrongful death claims, professional liability claims, commercial liability and business disputes, and employment-related claims.

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Learn more about Elizabeth’s practice here.

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Ron E. Torres

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Ron Torres is an attorney in the firm’s business litigation group, collaborating in the representation of clients in connection with business disputes, corporate governance issues, professional liability claims, and fee disputes. Ron’s practice has included defending major transportation companies, national retailers, product manufacturers, and commercial property owners in disputes arising from personal injury, commercial liability, and business disputes.

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Learn more about Ron’s practice here.

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Ethan A. Kraft

Ethan is an associate in the Maloney Firm’s Litigation Department. He represents clients in business and employment litigation matters.  Prior to joining the Maloney Firm, he worked in general litigation for a large national firm.

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Learn more about Ethan’s practice here.

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California Enacts New COVID-19 Supplemental Paid Sick Leave Requirements

On February 9, 2022, Governor Newsom signed Senate Bill (SB) 114, reviving COVID-19 supplemental paid sick leave requirements for California employers. Beginning February 19, 2022, certain California employers will be required to provide qualifying employees with up to 80 hours of COVID-19-related supplemental paid sick leave (CSPSL).

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The bill applies retroactively to January 1, 2022, and will remain in effect until September 30, 2022. Learn more about California’s new CSPSL requirements below.

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Covered Employers and Employees

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SB 114’s CSPSL requirements apply to all California employers with 26 or more employees. All employees of covered employers, regardless of their length of service, are entitled to an amount of CSPSL that varies according to the amount of hours they regularly work.

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Qualifying Reasons for Taking Leave

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Covered California employers must provide employees with CSPSL when they are unable to work or telework due to any of the following reasons:

  • Employee is subject to a quarantine or isolation period related to COVID-19, as defined by federal, state, or local orders or guidance.
  • Employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
  • Employee is attending an appointment for themselves or a family member to receive a COVID-19 vaccine or booster, subject to some limitations.*
  • Employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework, subject to some limitations.*
  • Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
  • Employee is caring for a family member who is subject to a COVID-19-related quarantine or isolation order or guidance or who has been advised to isolate or quarantine due to COVID-19-related concerns.
  • Employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
  • Employee tests positive, or is caring for a family member who tests positive, for COVID-19.

*For each vaccination or vaccine booster, an employer may limit the total COVID-19 supplemental paid sick leave to 3 days or 24 hours unless the employee provides verification from a health care provider that the covered employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster.

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Duration of COVID-19 Supplemental Paid Sick Leave

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All employees are entitled to two separate “up to 40 hour” reserves of leave, adding up to a maximum of 80 hours of CSPSL:

  • One reserve of up to 40 hours CSPSL is only available if the employee tests positive for, or is caring for a family member who tests positive for, COVID-19.
    • Importantly, employers may require employees and/or their family member to provide documentation of a positive test to utilize this leave. If an employee refuses to provide the employer with this documentation, the employer may refuse to provide this leave. Employers should consult with legal counsel to discuss the limitations of imposing this verification requirement.
  • The second reserve of up to 40 hours is only available for other covered reasons, such as vaccine appointments and recovery, quarantine and isolation, and experiencing COVID-19 symptoms.

Full-Time Employees: Employees are entitled to 40 hours per bank of leave if they are considered “full-time” or are otherwise scheduled to work on average at least 40 hours per week in the two weeks before they take CSPSL.

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Non-Full-Time Employees: Employees who do not work “full-time” are entitled to CSPSL in an amount proportional to their hours worked. This leave is calculated as follows:

  • If the covered employee has a normal weekly schedule, they are entitled to the total number of hours they are normally scheduled to work for the employer over one week per bank of leave.
  • If the covered employee works a variable number of hours, they are entitled to seven times the average number of daily hours the covered employee worked for the employer in the six calendar months preceding the date the covered employee took COVID-19 supplemental paid sick leave per bank of leave.
    • If the covered employee has worked for the employer over a period of fewer than six months but more than seven days, this calculation shall instead be made over the entire period the covered employee has worked for the employer.
  • If the covered employee works a variable number of hours and has worked for the employer over a period of seven days or fewer, they are entitled to the total number of hours the covered employee has worked for that employer per bank of leave.

Rate of Pay

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Nonexempt employees’ rate of pay must be calculated using one of the following methods:

  • Calculated in the same manner as the regular rate of pay for the workweek in which the employee uses CSPSL, whether or not the employee actually works overtime in that workweek.
  • Calculated by dividing the employees total wages, not including overtime premium pay, by the employees total nonovertime hours worked in the full pay periods occurring within the prior 90 days of employment—provided that (for nonexempt employees paid by piece rate, commission or another method that uses all hours to determine the regular rate of pay) total wages, not including overtime premium pay, must be divided by all hours to determine the correct amount of COVID-19 supplemental paid sick leave under this subdivision.

Employers must calculate exempt employees’ rate of pay in the same manner used for other forms of paid leave time.

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Effective Dates and Limitations

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Employees may take a maximum of 80 hours SPSL between January 1, 2022 and September 30, 2022. Employees eligible for exclusion pay under Cal/OSHA’s Emergency Temporary Standards (ETS) or Aerosol Transmissible Diseases Standard (ATDS) may not be required to first exhaust SB 114’s CSPSL before using exclusion pay.

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Notice Requirements

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The Labor Commissioner will soon create a CSPSL model notice poster, which will be available on their website and must be displayed by covered employers in the workplace. When employees do not regularly visit the workplace, employers may satisfy this notice requirement by distributing the notice electronically, such as by email.

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Employers will also be required to notify qualifying employees of the amount of leave they have already used (which may be zero hours) on their wage statements or in separate documents. This wage statement obligation will not be enforceable until the first full pay period after the bill’s effective date on February 19, 2022. Within these notice statements, COVID-19 supplemental paid sick leave must be set forth separately from other paid sick days.

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Resources for California Employers

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Look out for the California Labor Commissioner’s model notice poster and additional FAQs here.

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View the full text of Senate Bill 114 here.

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If you have questions regarding this article, please contact Patrick Maloney or Lisa Von Eschen of the Maloney Firm’s Employment Law Department.

Client Alert: CDPH Universal Indoor Mask Mandate To Expire February 15

On February 15, 2022, the California Department of Public Health’s (CDPH) universal indoor masking mandate will expire. Beginning February 16, 2022, the CDPH will require only unvaccinated individuals to mask in all indoor public settings, and will only require universal masking in certain higher risk settings.

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However, California employers must still comply with Cal/OSHA’s masking requirements, which are codified in the COVID-19 Emergency Temporary Standards (ETS), and with local County or City ordinances, which may carry more stringent restrictions. Learn more about CDPH and Cal/OSHA masking requirements below.

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Ongoing Masking Requirements from the CDPH

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The CDPH continues to require all individuals, regardless of vaccination status, in the following settings to wear a mask:

  • On public transit and in transportation hubs
  • Indoors in K-12 schools and other specified childcare settings
  • Emergency shelters and cooling and heating centers
  • Healthcare settings
  • State and local correctional facilities and detention centers
  • Homeless shelters
  • Long Term Care Settings and Adult and Senior Care Facilities

All unvaccinated individuals are also required to wear masks in all indoor public settings and businesses. The CDPH recommends, but does not require, vaccinated individuals wear masks in indoor settings.

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In settings where only unvaccinated individuals are required to wear masks, businesses may choose to:

  • Provide information to all patrons, guests and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest that they are in compliance prior to entry;
  • Implement vaccine verification to determine whether individuals are required to wear a mask; or
  • Require all patrons to wear masks.

Revived Cal/OSHA ETS Masking Requirements

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Under Cal/OSHA’s ETS, fully vaccinated employees are not required to wear a mask. Unvaccinated employees may remove their mask under certain limited circumstances, such as when they are alone in a room or while eating or drinking and maintaining physical distancing. Employers must provide unvaccinated employees with compliant face coverings, and ensure they are worn indoors.

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Resources for California Employers

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As masking guidance remains inconsistent throughout the State, employers should remain vigilant and continue to follow more stringent masking and vaccine verification guidance from local authorities, such as Los Angeles County, which has not yet lifted its universal indoor mask mandate. The updated, loosened guidance from Cal/OSHA and the CDPH also do not prohibit California employers and businesses from implementing or maintaining more protective masking rules.

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View the CDPH’s Announcement lifting some masking requirements here.

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Learn more about Cal/OSHA’s recently updated COVID-19 ETS here.

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View the full text of Cal/OSHA’s Emergency Temporary Standards here.

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If you have questions regarding this article, please contact Patrick Maloney or Lisa Von Eschen of the Maloney Firm’s Employment Law Department.

California Supreme Court Affirms Use of Worker-Friendly Framework in Assessing Retaliation Claims

On January 27, 2022, the California Supreme Court answered the Ninth Circuit’s certified question of California law in Lawson v. PPG Architectural Finishes, Inc., determining that trial courts must use the worker-friendly test established under California Labor Code section 1102.6 (§ 1102.6) to evaluate whistleblower retaliation claims.

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Importantly, the test only requires employees to prove that retaliation contributed to an adverse employment action, such as a termination or demotion. The burden is then shifted to the employer to prove that they would have taken the same action for legitimate, independent reasons. Previously, California courts were largely split on whether to evaluate whistleblower retaliation claims with the § 1102.6 test, or a more stringent three-part test established by the United States Supreme Court. Learn more about the case and its implications for California businesses below.

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Background

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Plaintiff Wallen Lawson worked for defendant PPG Architectural Finishes, Inc. (PPG), a paint and coatings manufacturer, from 2015 until 2017. His performance as an employee was evaluated using two criteria: his ability to meet sales benchmarks, and his scores on “market-walks,” during which PPG managers, including his own manager, Clarence Moore, observed his interactions with his client’s staff and customers. In the Spring of 2017, after his market-walk scores dipped and he was unable to consistently meet his monthly sales targets, Lawson was placed on a performance improvement plan.

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Around the same time that Spring, Lawson alleges that Moore ordered him to intentionally mistint slow-selling paints so that PPG could avoid buying back excess unsold products. Lawson openly refused to participate in Moore’s scheme, and filed two anonymous complaints with PPG’s ethics hotline, which triggered an investigation into Moore’s practices. While Moore was ordered to suspend this practice, he remained with PPG as Lawson’s direct supervisor.

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Months later, after he was unable to meet the standards contained in his performance improvement plan, Lawson was fired. Lawson then filed suit, alleging that PPG fired him because he blew the whistle on Moore’s fraudulent practices, in violation of California Labor Code section 1102.5 (§ 1102.5).

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The District Court’s Ruling

When evaluating Lawson’s claim, the District Court for the Central District of California used the three-part burden-shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green. The three components of the McDonnell Douglas framework are as follows:

  • 1. The employee must establish a prima facie case of unlawful discrimination or retaliation.
  • 2. The employer bears the burden of articulating a legitimate reason for taking the challenged adverse employment action.
  • 3. The employee then bears the burden of demonstrating that the employer’s preferred legitimate reason is a pretext for discrimination or retaliation.

Applying this framework, the district court ruled that, while Lawson established a prima facie case of unlawful retaliation based on his whistleblowing efforts, he was unable to provide sufficient evidence to satisfy the third step of the McDonnell Douglas test. As a result, he could not establish that the reasons given for his termination were pretextual. The court then granted summary judgement in favor of PPG.

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The Ninth Circuit Asks the California Supreme Court to Clarify California Law

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On appeal, Lawson argued that the district court should have instead applied the § 1102.6 test in assessing his claim. Under the § 1102.6 framework, Lawson would have only been required to prove that retaliation was a contributing factor in his termination, not that PPG’s stated reason for terminating his employment was pretextual.

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The Ninth Circuit ruled that, while the outcome of Lawson’s case hinged upon which framework the court used, it was not clear which framework rightly applied. The Ninth Circuit then asked the California Supreme Court to determine which test should be used to evaluate retaliation claims brought under California’s § 1102.5.

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The California Supreme Court Endorses Use of § 1102.6 Test

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In a landmark decision, the California Supreme Court determined that § 1102.6 supplies the evidentiary standard for presenting and evaluating retaliation claims brought under § 1102.5. The § 1102.6 test places the initial burden on the plaintiff to prove, by a preponderance of the evidence, that retaliation in response to an employee’s protected activity contributed to a contested employment action. Importantly, the Court determined that the plaintiff is not required to satisfy the McDonnell Douglas test to fulfill this requirement. If the employee meets the initial burden, then the burden shifts to the employer to demonstrate that the employer would have taken the contested adverse action for a legitimate, independent reason even if the plaintiff had not engaged in protected activity.

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The Court emphasized that the § 1102.6 framework was created to “encourage earlier and more frequent reporting of wrongdoing by employees…when they have knowledge of specified illegal acts” by bolstering “employee protection against retaliation.”

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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 Eschen, or Samantha Botros.

Congratulations to Our 2022 Super Lawyers

We are pleased to congratulate Patrick Maloney and Lisa Von Eschen on their selection to the 2022 Southern California Super Lawyers list. Each year, no more than five percent of the lawyers in the state are selected by the research team at Thomson Reuters to receive this honor.

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A business litigator and the founder of the Maloney Firm, Patrick has been recognized as a Super Lawyer each year from 2015 to 2022, and had been a Rising Star – an award given to just 2.5% of attorneys who have been in practice for ten years or less – from 2005 to 2008.

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Lisa represents management in employment matters, and has been recognized by Super Lawyers for three years consecutively.  Lisa has previously been selected to the Los Angeles Daily Journal’s list of Top Women Lawyers.

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Firm attorneys Gregory Smith, Carl Mueller, and Elizabeth Schaus have also been consistently recognized by Southern California Super Lawyers. In 2021, Greg was selected to the Super Lawyers Rising Stars List for the sixth consecutive year, and earned the further distinction of being named to the Up-and-Coming 100 list. Carl was recognized on the Rising Stars list for the second time last year, and Elizabeth has been selected to the Rising Stars list every year since 2019.

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Super Lawyers, part of Thomson Reuters, is a research-driven, peer influenced rating service of outstanding lawyers 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.

U.S. Supreme Court Blocks Federal OSHA’s Large Employer Vaccine Mandate

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

In November 2021, at the request of the Biden Administration, the federal Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (Federal ETS) requiring large employers with 100 or more employees to mandate vaccination or regular testing for their employees. A temporary injunction blocked the Federal ETS’s requirements before they were scheduled to take effect.

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On January 13, 2022, the U.S. Supreme Court reapplied the temporary injunction blocking enforcement of the Federal ETS. For now, enforcement of the Federal ETS remains “on hold” while the Sixth Circuit Court of Appeals—and potentially the Supreme Court—determine its constitutionality.

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Even if the Sixth Circuit Court of Appeals determines that the Federal ETS is valid in the coming weeks and allows its enforcement, the Federal ETS would likely face subsequent challenges in the Supreme Court. It appears that, for all intents and purposes, the Federal ETS will not take effect.

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While large employers are—for the time being—not required to impose vaccine-or-testing mandates, California employers are still permitted to implement vaccine or vaccine-or-testing mandates. The U.S. Congress and other federal agencies may also make additional rules related to vaccines and testing. We also note that OSHA’s rule requiring vaccination for most healthcare workers was upheld by the Court.

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As a reminder, Cal/OSHA’s updated Emergency Temporary Standards (ETS) for COVID-19 prevention took effect on January 14, 2022. While the ETS is already outdated in light of the CDPH’s recently revised masking and quarantine requirements, continuing adjustments and clarifications to the ETS can be found on Cal/OSHA’s Frequently Asked Questions page. Generally, California employers are subject to the most “protective” health and safety requirements, which may come from state authorities such as Cal/OSHA and the California Department of Public Health (CDPH) and local authorities such as Los Angeles County.

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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 Firms Employment Law Department: Patrick MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

Los Angeles County and California State Departments of Public Health Adjust COVID-19 Masking and Quarantine Workplace Requirements

On December 16, 2021, Cal/OSHA readopted a revised version of the COVID-19 Emergency Temporary Standards (ETS), which will take effect January 14, 2022, and will remain in effect until April 14, 2022. Read more about these updated requirements here.

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However, in response to the Omicron variant surge, both the California Department of Public Health (CDPH) and Los Angeles County Department of Public Health (LADPH) have imposed requirements that supersede some of the guidance outlined in the December 16 ETS.

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Notably:

  • California extended its universal masking requirement through February 15, 2022;
  • Los Angeles County required employers to provide select employees with compliant face coverings; and
  • California adjusted its quarantine and isolation requirements for employees who test positive for or are exposed to COVID-19.

Read more about these updated requirements below.

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California Department of Public Health: Extended Indoor Masking Requirement

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On January 5, 2022, the CDPH extended the state’s universal indoor masking requirement through February 15, 2022. The order requires masks to be worn in all public indoor settings, regardless of vaccination status. Click here to access the full order.

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LA County Requires Employers to Provide Some Employees with Compliant Face Coverings

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Also on January 5, 2022, the LADPH issued an updated order requiring employers to provide employees who work indoors and in close contact with other workers or the public with compliant face coverings. Employees must be required to wear a compliant face covering—which may be a well-fitting medical grade mask, surgical mask, or higher-level respirator (such as an N95 or KN95)—at all times when indoors at the worksite or facility.

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The updated order also requires masks to be worn indoors at “Cardrooms,” and adjusts some requirements for Mega Events and other large venues. Click here to access the full order.

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California Department of Public Health: Adjusted Quarantine Requirements

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In December, Cal/OSHA readopted and revised the state’s COVID-19 Emergency Temporary Standards, notably adjusting quarantine requirements for vaccinated and unvaccinated employees. However, shortly after, the CDPH issued updated isolation and quarantine requirements that supersede those outlined in the December 2021 ETS.

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Beginning on January 14, 2022, employers who are subject to Cal/OSHA’s ETS must follow the CDPH’s quarantine and isolation guidance which, as of January 8, 2022, is outlined below:

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When an employee tests positive for COVID-19, regardless of the employee’s vaccination status, previous infection, or lack of symptoms, the employee must adhere to the following guidance:

  • Stay home for at least 5 days.
  • Isolation can end after day 5 if symptoms are not present or are resolving and a diagnostic specimen collected on day 5 or later tests negative.
  • If unable to test or choosing not to test, and symptoms are not present or are resolving, isolation can end after day 10.
  • If fever is present, isolation should be continued until fever resolves.
  • If symptoms, other than fever, are not resolving continue to isolate until symptoms are resolving or until after day 10.
  • Wear a well-fitting mask around others for a total of 10 days, especially in indoor settings.

When an employee is exposed to someone with COVID-19, and is either unvaccinated or vaccinated and booster-eligible but has not received their booster dose,* the employee must adhere to the following guidance:

  • Stay home for at least 5 days, after your last contact with a person who has COVID-19.
  • Test on day 5.
  • Quarantine can end after day 5 if symptoms are not present and a diagnostic specimen collected on day 5 or later tests negative.
  • If unable to test or choosing not to test, and symptoms are not present, quarantine can end after day 10.
  • Wear a well-fitting mask around others for a total of 10 days, especially in indoor settings.
  • Strongly encouraged to get vaccinated or boosted.
  • If testing positive, follow isolation recommendations above.
  • If symptoms develop, test and stay home.

* In a workplace setting, asymptomatic employees that are vaccinated and booster-eligible but have not received their booster dose are not required to stay home from work if:

  • A negative diagnostic test is obtained within 3-5 days after last exposure to a case
  • Employee wears a well-fitting mask around others for a total of 10 days
  • Employee continues to have no symptoms.

When an employee is exposed to someone with COVID-19, and is either boosted or vaccinated, but not yet booster-eligible, the employee must adhere to the following guidance:

  • Test on day 5. 
  • Wear a well-fitting mask around others for 10 days, especially in indoor settings.
  • If testing positive, follow isolation recommendations above.
  • If symptoms develop, test and stay home. 

Employers should refer to the CDC’s COVID-19 Booster Shots page to determine who is booster-eligible. Click here to access the CDPH’s updated isolation and quarantine order.

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Resources for California Employers

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Click here to access California’s updated masking requirements.

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Click here to access LA County’s updated masking requirements.

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Click here to access California’s updated isolation and quarantine guidance.

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Read more about Cal/OSHA’s recently updated ETS.

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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.

Updates to Cal/OSHA’s COVID-19 ETS Will Take Effect January 14, 2022

On December 16, 2021, Cal/OSHA’s Standards Board (OSHSB) voted to readopt a revised version of the COVID-19 Emergency Temporary Standards (ETS). This updated ETS will take effect January 14, 2022, and will remain in effect until April 14, 2022. An updated set of FAQs about the ETS will likely be released in the coming weeks.

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Important Changes

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Face Coverings

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As always, California employers are required to adhere to the most protective guidance, which may come from state (CDPH) and local (Los Angeles County) authorities. On December 17, the California Department of Public Health added a universal requirement for masking indoors, which is effective until January 15, 2022. Los Angeles County continues to require universal indoor masking until further notice (which will likely extend past the State’s current January 15 expiration date).

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The updated ETS adds a new requirement that face coverings “not let light pass through when held up to a light source,” unless they are clear masks used for accommodations purposes.

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Close Contacts: Testing, Exclusion, and Return to Work

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Cal/OSHA made several changes to bring the ETS in line with CDPH testing and exclusion recommendations. Importantly, after a close contact with a COVID-19 case and during an outbreak, employers must make COVID-19 testing available at no cost and during paid time to employees who were fully vaccinated before the close contact occurred, even if they are asymptomatic. During outbreaks and major outbreaks, employers must now make weekly testing (outbreaks) or twice-weekly testing (major outbreaks) available to asymptomatic fully vaccinated employees in the exposed group.

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Employees who have recently recovered from COVID-19 and those who are fully vaccinated are not required to be excluded from the workplace after a “close contact” but must wear a face covering and maintain six feet of physical distancing for 14 calendar days following the last date of contact.

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Employees that are not documented as fully vaccinated who had a close contact and do not develop COVID-19 symptoms may return to work 14 days after their last known close contact, or may return early under the following conditions:

  • 10 days after their last known close contact, the asymptomatic employee may return to work if they wear a face covering and maintain 6 feet of distance from others while at the workplace for 14 days.
  • 7 days after their last known close contact, the asymptomatic employee tests negative for COVID-19 using a specimen taken at least 5 days after the last known close contact, and wears a face covering and maintains 6 feet of distance from others while at the workplace for 14 days.

Updated Definitions: COVID-19 Testing and Fully Vaccinated

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COVID-19 Test

Under certain circumstances, employees are required to test for COVID-19. These tests may no longer be both self-administered and self-read, unless they are observed by the employer or an authorized telehealth proctor.

Fully Vaccinated

Under the revised ETS, individuals who mix-and-match vaccine doses are considered fully vaccinated two weeks after receiving the second dose of any combination of two doses of a COVID-19 vaccine that is approved or authorized by the FDA, or listed as a two-dose series by the WHO. The second dose of this mix-and-match series must not be received earlier than 17 days after the first dose.

Generally, compliant vaccines must either have emergency use authorization from the FDA or be listed for emergency use by the (World Health Organization) WHO. Under certain circumstances, employees who were vaccinated as part of a clinical trial will be considered fully vaccinated under the updated ETS.

Resources for California Employers

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View a revised version of Cal/OSHA’s COVID-19 ETS here.

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View the California Department of Public Health’s Guidance for the Use of Face Coverings 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.

Our Annual Update Has Arrived!

The Maloney Firm’s Employment Law Department is excited to release our annual employment law update, which introduces the new laws and cases that will most significantly impact California employers, businesses, and attorneys in 2022.

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Meet the Authors:

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Lisa Von Eschen counsels businesses and non-profit organizations on employment law compliance issues, including exempt classifications, leaves of absence, payroll, discipline, grievances, terminations, and reductions in force. Her practice includes advising companies and executives on employment contracts, commission and bonus plans, restrictive covenants, trade secret and confidentiality issues, and severance agreements.

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Patrick Maloney represents clients in business disputes. He has served as lead trial counsel in bench and jury trials in state and federal courts and in arbitration. He has represented companies in antitrust and patent matters, shareholder and partnership disputes, employment disputes, and in disputes between clients and lawyers in malpractice, fiduciary duty claims, and fee disputes.

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Nicholas Grether is an attorney in the Employment Law Department. He has represented dozens of clients in arbitration, and state and federal court, concerning alleged violations of state and federal employment laws. Nick also works with clients to update their policies to stay current with the ever-changing world of employment law.

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Samantha Botros represents and counsels employers and management in many aspects of employment law, including discrimination, sexual harassment, privacy issues, and California wage and hour matters. Her
practice also includes advising clients on severance agreements, employee handbooks, and personnel policies. She also conducts preventative training sessions on harassment.