New, Relaxed Guidelines for Dealing with COVID in the Workplace
Question: Have there been any changes to the testing requirements or isolation periods for COVID-19 positive cases in the workplace?
Answer: Yes, on January 9, 2024, Cal/OSHA and the California Department of Public Health issued an order revising its COVID-19 Prevention Non-Emergency Regulations (“Regulations”). These changes include revisions to the definition of infectious period, isolation requirements for positive cases, and close contact testing.
Infectious Period
The Regulations now define the COVID-19 infectious period as:
- For symptomatic confirmed cases, from the day of symptom onset until 24 hours have passed with no fever, without the use of fever-reducing medications, AND symptoms are mild and improving.
- For asymptomatic confirmed cases, there is no infectious period for the purpose of isolation or exclusion. If symptoms develop, the criteria above will apply.
CDPH still recommends a person who tests positive for COVID-19 wear a mask through day 10, and acknowledges that the “potential infectious period” is 2 days before symptoms develop or before the COVID-19 positive test date. However, for purposes of isolation and exclusion from work, this shorter infectious period is now the working definition.
Isolation Period
Previously, non-symptomatic COVID-19 positive cases needed to isolate for five days. The new Regulations for non-symptomatic positive cases do not require any isolation period, but simply require the person wear a mask and avoid contact with people at a high risk for “severe COVID-19” for ten days.
For symptomatic cases, the COVID-19 positive person should be excluded from the worksite for 24 hours, and may return when 24 hours have passed without fever and when symptoms are mild and improving.
Close Contact Testing
CDPH no longer recommends testing for all close contacts. Testing is recommended only for people with new COVID-19 symptoms and close contacts who are at higher risk of severe disease or who have contact with people who are at higher risk of severe disease.
Employers must continue to make COVID-19 testing available at no cost and during paid time to all employees with a workplace close contact, except for asymptomatic employees who recently recovered from COVID-19.
In workplace outbreaks or major outbreaks, the Regulations still require testing of all close contacts in outbreaks, and everyone in the exposed group in major outbreaks. Employees with symptoms who refuse to test must be excluded for at least 24 hours from symptom onset, and can return to work only when they have been fever-free for at least 24 hours without the use of fever-reducing medications, and symptoms are mild and improving.
Requirements that Remain the Same:
The Regulations that have not changed include addressing COVID-19 as a workplace hazard either in employers’ Injury and Illness Prevention Programs or in a separate COVID-19 prevention plan. Employers must continue to ensure returning COVID-19 cases use face coverings until 10 days have passed from the date symptoms began or, for asymptomatic cases, from the date of their first positive test.
These COVID-19 Prevention Non-Emergency Regulations remain in effect until 2025. However, as we see from the January 9, 2024 update, these regulations can still be revised and updated. Employers can review the most recent guidance on Cal/OSHA’s COVID-19 Prevention Non-Emergency Regulations FAQ page and should update their COVID-19 policies to reflect the latest information.
Ensuring a Festive Holiday Celebration for Your Company
Question: We are in the process of planning our holiday party. What legal considerations should we be aware of to ensure a fun and safe holiday party?
Answer: Yes; As the holiday season approaches, businesses are gearing up for the annual tradition of organizing a company holiday party. While the goal is to foster a spirit of camaraderie and celebration, employers should consider several factors to ensure a gathering that is not only legally compliant but also enjoyable for all participants.
- Responsible Alcohol Consumption: Opting to serve alcohol at your holiday party is a common choice, even for companies with a Drug- and Alcohol-Free Workplace policy. However, maintaining a balance and ensuring responsible consumption is important for the safety of all attendees. Employers have a responsibility to provide a safe environment, and in certain circumstances employers may be held liable for the actions of their employees even after they leave the holiday party, such as with alcohol-involved auto accidents. To mitigate risks, employers can consider measures such as distributing drink tickets, setting a cut-off time for alcohol service, and making food and water readily available to lessen the impact of alcohol. Offering alternative options like "mocktails" provides a festive atmosphere without alcohol. For businesses with minors or employee family members on the guest list, extra caution is advised to prevent underage drinking.
- Upholding Respectful Conduct: Despite the more relaxed atmosphere of a holiday party, it is important to remember that all company policies, including anti-harassment and code of conduct guidelines, remain in effect. Attendees should adhere to these policies, and decorations and gifts should avoid anything offensive or sexually suggestive. Employers play a vital role in setting the tone by reminding employees of these policies before the event and reiterating them during any gift exchange announcements. In the event of a complaint of harassment or violation of the code of conduct, prompt and thorough investigation followed by appropriate remedial action is necessary.
- Voluntary Attendance: Making attendance at the company holiday party voluntary respects individual preferences and helps avoid potential legal issues related to wage and hour regulations. Some employees may have reservations about attending events associated with specific holidays or where alcohol is served. Mandatory attendance not only goes against these preferences but can also expose employers to additional liabilities for any injuries that may occur during the event. Employers should also ensure gift exchanges are voluntary.
- Inclusive Party Theme: To foster inclusivity and prevent anyone from feeling excluded or discriminated against, employers should avoid centering the party theme around a specific holiday or religion. Instead, opt for neutral, winter-themed décor that creates a welcoming atmosphere for all employees.
Planning a holiday party for your company involves more than just arranging food and entertainment. By considering responsible alcohol consumption, upholding respectful conduct, making attendance voluntary, and embracing an inclusive party theme, employers can create a festive and secure environment for all employees to enjoy.
Hiring Minors for the Summer
Question: I am planning to hire some high school students to work at my business over the summer. Are there any special considerations I need to know when hiring minors?
Answer: Yes. In addition to protection afforded by California’s general wage and hour laws, additional child labor laws apply when employing minors.
Work Permits
Before hiring a minor, the minor’s school must issue a work permit. The minor’s parent or legal guardian and employer must complete the “Statement of Intent to Employ Minor and Request for Work Permit” and provide it to the minor’s school, who then issues the work permit. The permit typically states the maximum number of hours a minor may work in a day and week and the range of hours during the day that a minor may work. There is a difference between the number of hours minors are permitted to work when school is in session compared to when school is not in session over the summer months. Employers should not have a minor perform any work until the work permit is issued. Permits issued during the school year expire five days after the opening of the next school year and must be renewed. Permit requirements do not apply to minors who have graduated from high school.
Mandated Reporter Requirements
The Child Abuse and Neglect Reporting Act requires that certain individuals who work with children, known as “mandated reporters,” report to specified law enforcement and county social services departments whenever they, in their professional capacity or within the scope of their employment, have knowledge of or observe a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. Mandated reporters include:
- “Human resource employees” of a business with 5 or more employees that employs minors; and
- Any adult employee whose duties require direct contact with and supervision of minors in a business with 5 or more employees.
The law defines “human resource employees” as any employee designated by the employer to accept any complaints of misconduct made under California’s Fair Employment and Housing Act. For example, if the employer’s harassment prevention policy directs employees to report harassment to their supervisor, human resources, or any manager, then all those individuals are mandated reporters. Human resource employees must report all types of child abuse or neglect, while employees whose duties require direct contact with minor employees are only required to report sexual abuse. Employers must provide training in child abuse and neglect identification and reporting to all mandated reporters in their business. When hiring minors, employers should identify which employees are mandated reporters and ensure compliance with all mandated reporter requirements.
Restrictions on Specified Industries
Under federal and California law, minors are prohibited from performing certain jobs. For example, minors under age 18 cannot work in “hazardous” occupations, such as roofing, and minors under 16 cannot perform work requiring the use of ladders or scaffolds. Employers should ensure they are following all applicable laws based on the minor’s specific age and the employer’s industry. The Department of Industrial Relations publication on California Labor Laws provides guidance on employing minors. This publication is available at https://www.dir.ca.gov/dlse/ChildLaborLawPamphlet.pdf.
Independent Contractor Test for Real Estate Agents
by Ashley Cameron
Over the last several years, California courts and the legislature have significantly changed the laws for determining whether a worker is an employee or independent contractor. After the California Supreme Court’s decision in Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903 and Assembly Bill 5, the “ABC test” was adopted, which presumptively considers all workers to be employees, and permits workers to be classified as independent contractors only if the hiring business demonstrates that the worker in question satisfies all three conditions:
- The worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact;
- The worker performs work that is outside the usual course of the hiring entity's business; and
- The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
Most recently, Assembly Bill 2257 was adopted, which provided further nuance to this analysis. AB 2257 added several new sections to the Labor Code that carved out numerous industries and occupations as exempt from the ABC test.
In Labor Code section 2778, “real estate licensees” were included in the list of occupations exempt from the ABC test. Labor Code 2778 provides that the employment status of real estate licensees shall be governed by Business and Professions Code section 10032, which allows brokers and licensees to contract between themselves as independent contractors or employee/employer, and also references the Unemployment Insurance Code as the standard for determining the withholding of taxes.
Recently, the California Court of Appeals in Whitlach v. Premier Valley, Inc. (2022) 86 Cal.App.5th 673 reviewed the above laws to establish the appropriate test for determining when a real estate agent is an independent contractor or employee.
The court found that Unemployment Insurance Code section 650, as incorporated in Business and Professions Code section 10032(b), provides a test that is—and has been—the controlling test for determining whether a real estate agent is an independent contractor or employee in the wage and hour context. This test provides that “employment” does not include services performed as a real estate broker or real estate salesperson if all of the following conditions are met:
- The individual is licensed pursuant to the provisions of the Business and Professions Code;
- Substantially all of the remuneration (whether or not paid in cash) for the services performed by that individual is directly related to sales or other output (including the performance of services) rather than to the number of hours worked by that individual [i.e., the remuneration is in the form of a commission]; and
- The services performed by the individual are performed pursuant to a written contract between that individual and the person for whom the services are performed, and the contract provides that the individual will not be treated as an employee with respect to those services for state tax purposes.
The court confirmed that this test, and the exemption of real estate agents from the ABC test, is constitutional. Thus, if the above criteria are satisfied, then a real estate agent can be appropriately classified as an independent contractor.
This case likely marks the first of many that will provide further clarity on the appropriate tests for determining independent contractor status within the various, exempted industries and occupations found within the Labor Code.
New Cal/OSHA COVID-19 Non-Emergency Regulations
Question: Have the Cal/OSHA Covid-19 workplace regulations changed again?
Answer: Yes. At the end of 2022, the Cal/OSHA Standards Board voted to adopt the COVID-19 Prevention Non-Emergency Regulations to replace the COVID-19 Emergency Temporary Standards. On February 3, 2023, California’s Office of Administrative Law approved Cal/OSHA’s COVID-19 Non-Emergency Regulations. These new regulations are now the operative COVID-19 regulations for most California employers and will remain in effect until February 3, 2025.
In conjunction with the approval of the Non-Emergency Regulations, Cal/OSHA published a revised Frequently Asked Question Page (FAQ) and a new COVID-19 Model Prevention Program.
Employers should review their COVID-19 Prevention Program and related policies and practices to ensure compliance with the new Non-Emergency regulations. Below are some of the key points employers should be aware of:
Exclusion Pay
The Non-Emergency Regulations no longer require employers to pay employees who are excluded from work because of workplace exposure to COVID-19. The FAQs state that employees who test positive may be eligible for other benefits such as state disability or workers’ compensation.
Face Coverings & Testing
Employers must still provide face coverings to employees and ensure they are worn in the workplace when required. Employers must also ensure face coverings are worn during a COVID-19 outbreak or when employees return to work after a close contact.
Employers are required to notify employees of positive COVID-19 cases in the workplace and make COVID-19 testing available at no cost to employees who had a “close contact” in the workplace or during workplace outbreaks. Employers do not need to provide testing at no cost to employees who were exposed to COVID-19 outside of the workplace.
Close Contact
The Non-Emergency Regulations use a revised definition of “close contact,” which is based on the size of an employer’s indoor space. Different definitions of “close contact” apply to indoor spaces of 400,000 cubic feet or fewer and indoor airspaces of more than 400,000 cubic feet. The new FAQs provide a formula for assisting employers in determining the cubic feet of an indoor space.
Written Policy Requirements
Employers are no longer required to maintain a separate COVID-19 Prevention Plan but can now incorporate COVID-19 workplace hazard policies in their Injury and Illness Prevention Plan (“IIPP”). The written COVID-19 Plan must include the following:
- Determine measures to prevent COVID-19 transmission and identify and correct COVID-19 hazards.
- Provide COVID-19 training to employees.
- Investigate and respond to COVID-19 cases in the workplace.
- Exclude from the workplace COVID-19 cases until they are no longer an infection risk and meet return-to-work criteria and implement effective policies to prevent transmission after close contact.
- Require and provide face coverings and respirators in the manner and in the circumstances specified in the COVID-19 Prevention regulations.
- Advise employees they can wear face coverings at work regardless of their vaccination status, and that retaliation by the employer is illegal.
- Improve indoor ventilation and air filtration to prevent COVID-19 transmission.
- Require respiratory protection during aerosolizing procedures.
- Keep records of COVID-19 cases at the workplace.
- Maintain records of COVID-19 cases, and report serious illnesses and outbreaks to Cal/OSHA and to the local health department when required.
Employers should refer to the revised model program prepared by Cal/OSHA for guidance on updating their COVID-19 policies.
The FAQs and model program can be found at https://www.dir.ca.gov/DOSH/Coronavirus/Covid-19-NE-Reg-FAQs.html#prevention
Expansion of Family Leave Laws to Include Non-Family Members
By Ashley Cameron
Starting in January 2023, eligible employees may take job-protected leave to care for a “designated person.” On September 29, 2022, Governor Newsom signed into law Assembly Bill 1041, which expands the definition of a “family member” under the California Family Rights Act (CFRA) and California’s Healthy Workplace Healthy Family Act (HWHFA) to include a “designated person.”
What are the Expanded Rights to Family Leave?
CFRA allows eligible employees to take up to 12 weeks of paid or unpaid job-protected leave during a 12-month period for specified reasons. One reason is to care for a family member who has a serious health condition. Currently, the CFRA defines family member as a child, parent (including parent-in-law), spouse, registered domestic partner, grandchild, grandparent, and sibling.
AB 1041 expands the definition of family member to include a “designated person,” so eligible employees will now be able to take CFRA leave to care for a “designated person” who has a serious health condition. A designated person is defined as “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” Employees can identify the “designated person” at the time the employee submits a request for CFRA leave. An employer can limit an employee to one designated person per 12-month period.
CFRA applies to employers who directly employ five or more persons, and to the state of California, and any political or civil subdivision of the state and cities. To be eligible for CFRA leave, an employee must have more than 12 months of service with the employer and must have worked at least 1,250 hours for the employer during the 12-month period prior to requesting leave.
What are the Expanded Rights For Paid Sick Leave?
Under HWHFA, employees can use paid sick leave for the diagnosis, care, or treatment of an existing health condition of, or preventive care for, a family member. The HWHFA defined a family member as a child, grandchild, grandparent, parent, registered domestic partner, sibling, and spouse.
AB 1041 expands the definition of family member to include a “designated person.” However, the HWHFA definition of designated person is slightly broader than the CFRA definition. Under the HWHFA, a designated person is “a person identified by the employee at the time the employee requests paid sick days.” Accordingly, unlike the CFRA, the designated person under the HWHFA need not be related by blood to the employee, and their association need not be the equivalent of a family relationship.
Best Practices
Employers should update their CFRA and HWHFA policies and forms to comply with the new law and provide training on the new legal requirements to supervisors and human resources employees.
Cal/OSHA Voting on Proposed COVID-19 Permanent Standard
Question: Are the Cal/OSHA Emergency Temporary Standard COVID-19 workplace guidelines set to be revised again?
Answer: Yes. In November 2020, the California Division of Occupational Safety and Health (“Cal/OSHA”)—the organization tasked with enforcing California laws and regulations pertaining to workplace health and safety—adopted COVID-19 Emergency Temporary Standards (“ETS”), containing COVID-19 related workplace safety rules and procedures. Since then, the ETS have been revised four times, with the most recently adopted ETS set to expire at the end of this year.
The California Occupational Safety and Health Standards Board (the “Board”) released new regulations proposing a COVID-19 “Permanent Standard.” The Permanent Standard is set to be voted on at the Board’s September 15, 2022 public meeting, where the Board will hear comments from the public in favor of adopting, amending, or repealing the proposed regulations. If adopted, the Permanent Standard will go into effect in January 2023 and will remain in effect until December 31, 2024.
Under the proposed Permanent Standard, while some COVID-19 related workplace requirements are relaxed, many COVID-19 workplace requirements are here to stay. This includes employers’ obligations to provide face coverings to employees, to take measures to reduce the risk of COVID-19 transmission in the workplace, and to take appropriate steps to investigate COVID-19 exposure in the workplace.
While the proposed regulations largely follow the previous ETS requirements, there are some notable changes.
Reduced and/or Eliminated Requirements:
- Elimination of Exclusion Pay:
Most notably, the proposed Permanent Standard no longer requires employers to provide exclusion pay to employees excluded from the workplace due to COVID-19. Employees excluded from work due to COVID-19 must still be notified of applicable benefits, such as company sick leave or workers compensation.
- COVID-19 Prevention Policy:
Under the ETS, employers were required to maintain a written COVID-19 Prevention Program (CPP) that needed to contain specific criteria. The proposed Permanent Standard no longer requires a CPP but does require that an employer have written COVID-19 procedures either as a separate document or addressed in the written Injury and Illness Prevention Program. Thus, though the requirements are slightly laxed, employers should still maintain written COVID-19 procedures.
- Employer-Provided Testing:
The proposed Permanent Standard no longer requires employers to provide COVID-19 testing to all symptomatic employees. Instead, employers will only be required to provide testing—still at no cost and during paid time—to employees who are a close contact within the workplace, not to employees exposed outside of the workplace.
Added Requirements:
- Broadened Definition of Close Contact:
The proposed Permanent Standard broadens the definition of “close contact” to sharing the same indoor space as a COVID-19 case for a cumulative total of 15 minutes or more (as opposed to being within six feet of a positive case for a cumulative total of 15 minutes or more). Not only is this broader and more ambiguous than the previous close contact rule, it substantially broadens the number of potential close contacts in the workplace and will likely require employers to use more discretion when determining close contacts.
- Reporting of Cases and Close Contacts:
Employers are still required to keep records of COVID-19 cases and outbreaks. The proposed Permanent Standard adds a requirement to keep records of close contacts in the workplace and the date the close contact notice was provided. These records should be kept confidential and be retained for two years.
It is important to note that many requirements within the proposed Permanent Standard defer to guidance and regulations from the California Department of Public Health or local health departments. Employers should stay apprised of any state and local requirements that may be applicable to them to ensure they remain in compliance with all COVID-19 related workplace requirements.
Employers can access the text of the proposed Permanent Standard, and see it compared to the previous version of the ETS, here: https://www.dir.ca.gov/dosh/doshreg/COVID-19-Prevention-Regulatory-Text.pdf.