Cal/OSHA Revised COVID-19 Prevention Emergency Temporary Standards

Question: Has Cal/OSHA adopted new workplace guidelines now that California has opened?

Answer: Yes, on June 17, 2021, Cal/OSHA’s Standards Board approved revisions to the COVID-19 Emergency Temporary Standards (ETS).  Though California has eased restrictions on COVID-19 safety measures and restrictions, employers still must follow the workplace safety requirements mandated by Cal/OSHA.

The revised ETS include some important changes to workplace rules and employers’ obligations, including:

  • Fully vaccinated employees do not need to wear face coverings indoors or outdoors, except during outbreaks, or where the California Department of Public Health (CDPH) requires mask wearing, such as in public transit, K-12 educational facilities, and health care settings.
  • Fully vaccinated employees do not need to be tested or excluded from work after close contact with someone who has COVID-19 unless they have COVID-19 symptoms.
  • Masks are not required to be worn outside, including by those persons not vaccinated.
  • Physical distancing has been eliminated except where the employer determines there is a hazard or during a COVID-19 outbreak.
  • Employees who are not vaccinated must wear face coverings when indoors and when participating in indoor COVID-19 screening.
  • Employees who are not vaccinated may request respirators, such as N95 masks, for voluntary use at no cost to them.
  • Employers may not retaliate against employees who choose to wear face coverings.
  • Employers must maintain a record of employees’ vaccination status and keep that record confidential.  Cal/OSHA states that acceptable options for documentation include:
  • Employees can provide proof of vaccination (a vaccine card, its image, or a healthcare document showing vaccination status), and employers retain a copy.
  • Employees can self-attest to vaccination status, and employers maintain a record of who self-attests.

If employees decline to state whether they are vaccinated, employers must treat them as if they are unvaccinated.

Because of a recent increase in COVID-19 cases, some counties are requiring or recommending people wear face coverings when indoors, regardless of vaccination status.  Employers are generally permitted to adopt more stringent workplace safety rules to protect employees and patrons.  It is a good idea to check your local health department’s website to see if it requires face coverings or more protective measures than Cal/OSHA’s ETS.

Though the revised ETS include many changes, some key requirements remain.  Employers must:

  • Have an effective written COVID-19 Prevention Program.
  • Provide effective training and instruction to employees on the employer’s prevention plan and employee rights under the Emergency Temporary Standards.
  • Continue to provide face coverings to unvaccinated employees and make them available to vaccinated employees upon request.
  • Provide notice to public health departments of outbreaks.
  • Provide notice to employees of exposure to and close contacts with a COVID-19 case.
  • Offer COVID-19 testing to employees at no cost after potential exposures.
  • Comply with Cal/OSHA requirements for responding to COVID-19 cases and outbreaks.
  • Comply with quarantine and exclusion pay requirements.
  • Follow prevention requirements for employer-provided housing and transportation.

To ensure compliance with the current revised temporary standards, Cal/OSHA has developed a revised COVID-19 Model Prevention Program to help employers developing or revising their written COVID-19 Prevention Programs.  Employers can access the revised model program by visiting  https://www.dir.ca.gov/dosh/coronavirus/ETS.html.


Frequently Asked Questions Regarding the COVID-19 Rental Housing Recovery Act Protections for Renters

On June 28, 2021 Governor Newsom signed legislation to extend California’s eviction moratorium through September 20, 2021. Assembly Bill 832 extends existing law prohibiting residential tenants from being evicted for failure to pay rent due to a COVID-19-related hardship between March 1, 2020 and Sept. 30, 2021. Residential tenants are still required to provide a Declaration of COVID-19-Related Financial Distress and pay at least 25 percent of past due rent by Sept. 30 to avoid eviction.

How long are the COVID protections for renters in effect under the new bill?

Eviction protections have been extended through September 30, 2021.  Tenants who have not paid rent for any month between March 1, 2020 and September 30, 2021 who provide a signed declaration of COVID-related financial hardship to their landlord, cannot be evicted before September 30, 2021.

Do the protections for renters apply to commercial tenancies as well?

No.  The protections for renters have been extended for residential tenancies but not for commercial tenancies.

What forms are required to avoid eviction?

A Declaration of COVID-19-Related Financial Distress should be used by tenants who are unable to pay rent due to financial distress arising from and/or related to COVID-19. Landlords may provide the form to tenants,  and tenants must sign and return it to the landlord within 15 business days in order to avoid eviction for non-payment of rent due to COVID-19-related financial distress. The form is available at https://housing.ca.gov/tenant/forms.html.

Can Landlords ask for proof of COVID hardship for inability to pay rent?

No, unless the tenant is a high-income earner, and the landlord already has proof of this.  If the landlord has proof on file that the household makes at least 130% of the median income for the county where the rental property is located, then the landlord may demand documentation supporting the claim of COVID-related financial distress.  In any other circumstance, landlords may not demand additional documentation and must accept the signed declaration from the tenant as proof of hardship.

When can evictions for nonpayment of rent begin?

Landlords can begin evicting tenants for nonpayment of rent (even if they have submitted a declaration of COVID-related financial hardship) starting October 1, 2021.

Can a landlord evict a tenant for other reasons besides non-payment of rent?

Yes, a landlord can evict a tenant for at-fault just cause (such as breach of a material term of the lease, nuisance, committing waste, or criminal activity) as long as the cause is not simply a pretext for retaliating against the tenant for non-payment of rent.  No-fault terminations remain rather difficult during this period.

Are there any new notices that landlords should be aware of?

There is a new mandatory notice that landlords must deliver to all tenants who have missed any rental payment since March 1, 2020.  The notice explains the new changes in protections for renters and must be delivered on or before July 30, 2021.  There is also a new 15-day notice to pay or quit that needs to be included with every demand for payment of rent served after July 1, 2021.

Is there rental assistance for tenants who cannot afford to make their rental payments?

Yes.  Tenants who earn 80% or less of the area median income are eligible for rental assistance at housingiskey.com.  Either landlords or tenants can begin the application process.  The rental assistance program will reimburse landlords for 100% of unpaid back rent, and may help tenants with future rent payments as well.

Are there protections for tenants who don’t qualify for rental assistance?

Tenants who do not qualify for rental assistance (because they earn more than the 80% area median income threshold) must pay 25% of the total outstanding rent that came due during the “Transition Time Period” (September 1, 2020 – September 30, 2021) by September 30, 2021.  If they pay this 25%, then the landlord may not evict them for the other 75%.  The landlord can, however, bring an action to collect unpaid rent beginning November 1, 2021.

How do landlords recover unpaid back rent?

Landlords may begin filing claims for unpaid back rent starting November 1, 2021, by either filing in small claims court, or bringing a civil suit.  However, the court has limited the amount that a landlord can recover in attorney’s fees in a civil suit to $500 if the matter is uncontested and $1000 if the matter is contested.  Before filing a claim for unpaid rents, landlords must first apply for rental assistance through the governmental program at housingiskey.com.  In order for a court to issue a summons and complaint, the landlord must first file a statement verifying that the landlord completed an application for rental assistance to cover the rental debt demanded but the application was denied, as well as a copy of the final decision from the rental assistance program denying the rental assistance.

Do landlords still need to serve 15-day notices to pay or quit?

Yes, landlords must continue to deliver 15-day notices to pay or quit.  Beginning October 1, 2021, the 15-day notice will no longer be in effect, and landlords can go back to the normal 3-day notices.

To view the text of AB 832, visit  https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB832

For more information on rental assistance, visit https://housing.ca.gov/covid_rr/


Changes to Cal/OSHA’s COVID-19 Emergency Temporary Standards and COVID-19 Model Prevention Program

In November 2020, Cal/OSHA issued COVID-19 Emergency Temporary Standards requiring employers to adopt and implement a written COVID-19 Prevention Program (CPP).   Although COVID-19 restrictions in California have eased, employers are still required to have a CPP, and recent changes require revisions to your CPP.

On June 17, 2021, Cal/OSHA’s Standards Board approved several revisions to Cal/OSHA’s COVID-19 Emergency Temporary Standards.  The revised temporary standards include some important changes to workplace rules, including:

  • Fully vaccinated employees do not need to wear face coverings indoors or outdoors, except during outbreaks, or where the California Department of Public Health (CDPH) requires mask wearing, such as in public transit, K-12 educational facilities, and health care settings.
  • Fully vaccinated employees do not need to be tested or excluded from work after close contact with someone who has COVID-19 unless they have COVID-19 symptoms.
  • Masks are not required to be worn outside, including by those persons not vaccinated.
  • Physical distancing has been eliminated except where the employer determines there is a hazard or during a COVID-19 outbreak.
  • Employees who are not vaccinated must wear face coverings when indoors and when participating in indoor COVID-19 screening.
  • Employees who are not vaccinated may request respirators, such as N95 masks, for voluntary use at no cost to them.
  • Employers must maintain a record of employees’ vaccination status and keep that record confidential.
  • Employers may not retaliate against employees who choose to wear face coverings.

Though the revised temporary standards include many changes, some key requirements remain.  Employers must:

  • Have an effective written COVID-19 Prevention Program.
  • Provide effective training and instruction to employees on the employer’s prevention plan and employee rights under the Emergency Temporary Standards.
  • Provide notice to public health departments of outbreaks.
  • Provide notice to employees of exposure to and close contacts with a COVID-19 case.
  • Offer COVID-19 testing to employees at no cost after potential exposures.
  • Comply with Cal/OSHA requirements for responding to COVID-19 cases and outbreaks.
  • Comply with quarantine and exclusion pay requirements.
  • Follow prevention requirements for employer-provided housing and transportation.

To ensure compliance with the current revised temporary standards, Cal/OSHA has developed a revised COVID-19 Model Prevention Program to help employers developing or revising their written COVID-19 Prevention Programs.  Employers can access the revised model program by visiting https://www.dir.ca.gov/dosh/coronavirus/ETS.html. The employment law attorneys at Fenton & Keller are available to help employers draft or revise their COVID-19 Prevention Program.


Heat Illness Prevention

Question: I recently purchased a new business, and some of my employees work outside for extended periods of time.  Are there any special steps I need to take to protect them when the weather is hot?

Answer:  Yes, California employers are required to prepare to protect outdoor workers from heat illness. California’s heat illness prevention standard applies to all outdoor places of employment, and additional high heat procedures are imposed on employers in the agriculture, construction, landscaping, oil and gas extraction, and transportation of heavy materials industries.  Heat illness may occur when an employee’s body temperature control system cannot maintain an acceptable temperature. While the body usually cools itself by sweating, high temperatures and humidity prevent the body from efficiently releasing heat so body temperature can rise quickly, causing numerous medical symptoms.

The heat illness prevention standard requires employers to closely observe outdoor workers during a “heat wave,” defined as any day in which the predicted high temperature for the day will be at least 80 degrees and at least ten degrees higher than the average high daily temperature in the preceding five days. Employees who are newly assigned to a high heat area must be closely observed by a supervisor for the first 14 days of employment.

Employers with outdoor workers must take the following steps to prevent heat illness:

  • Develop and implement a Heat Illness Prevention Plan.  The Plan must be in writing in both English and the language understood by the majority of the employees.  The Plan must contain:
    • Procedures for providing water and access to shade.
    • A description of high heat procedures to be implemented when the temperature equals or exceeds 95 degrees.
    • Emergency response procedures that ensure effective communication to contact a supervisor or medical services, and for responding to signs or symptoms of heat illness.
  • Provide training to employees and supervisors before employees begin work that is reasonably anticipated to result in exposure to the risk of heat illness.
  • Provide drinking water that is fresh, pure, suitably cool, free of charge, and close to work areas so that each worker can drink at least 1 quart per hour.  Employers should encourage frequent drinking of water.
  • Encourage workers to protect themselves from overheating by taking cool-down rest periods in the shade for at least five minutes when they feel the need to do so. When temperatures reach 95 degrees or above, employers in agriculture, construction, landscaping, oil and gas extraction, and non-air-conditioned transportation must ensure that employees take a minimum ten-minute net preventative cool-down rest period every two hours.
  • Provide proper shade when temperatures exceed 80 degrees by maintaining one or more areas with shade that are either open to the air or provided with ventilation or cooling. The amount of shade must be sufficient to accommodate the number of employees on recovery or rest periods, so that they can sit in a normal posture fully in the shade without having to be in physical contact with each other. Workers have the right to request and be provided shade to cool off at any time.

Cal/OSHA’s Heat Illness Prevention website contains details on the heat illness prevention requirements and training and can be accessed at https://www.dir.ca.gov/DOSH/HeatIllnessInfo.html.  Cal/OSHA also has a Health Illness Prevention e-tool with sample procedures for heat illness prevention at https://www.dir.ca.gov/DOSH/etools/08-006/.


Questioning Job Applicants about COVID-19 Vaccination

Question: Can I ask job applicants if they have received the COVID-19 vaccine?

Answer: The short answer is yes, within limits. The Equal Employment Opportunity Commission’s (EEOC) guidance on vaccinations states that employers may lawfully mandate vaccinations, ask employees if they have been vaccinated, and ask employees to provide proof of vaccination.

Employers are required under federal, state, and local laws to provide a safe and healthy workplace for employees and patrons.  Before deciding whether to ask applicants about their vaccination status, employers should first consider why an applicant’s vaccination status is relevant to the position or workplace. An employer’s focus should be on the health and safety of the workplace. Asking applicants about their vaccination status is appropriate if the employer has a mandatory vaccination policy that is job-related and consistent with business necessity.

While most California employers are currently not mandating vaccines for employees, such a mandate is generally lawful.  This is because of the employers right to implement lawful workplace policies that protect the health and safety of employees and patrons. Accordingly, employers may require employees to get the COVID-19 vaccine so long as the employer does not infringe upon the protections afforded to employees under federal, state, and local law.

If an employer adopts a mandatory vaccination policy, it may also ask job applicants about their vaccination status.  The EEOC has clarified that asking employees if they have received the COVID-19 vaccine is not a disability-related inquiry under the American with Disabilities Act (ADA).  Therefore, employers with mandatory vaccination policies may ask applicants whether they have been vaccinated, but should refrain from asking any follow-up questions that are not job-related and that may reveal a disability.

Employers who require employees to be vaccinated should be clear about this requirement when recruiting and should inform applicants of the vaccine requirement as soon as possible. When posting the position, the employer should consider including in the job post that vaccination is a requirement of the job and that accommodations due to disability or religious reasons will be evaluated in compliance with the law.  Employers should not require applicants to bring proof of vaccination to the job interview. The interview should be focused on the applicant’s qualifications for the position.  Employers should wait until after an applicant is offered a job to request proof of a COVID-19 vaccination from the applicant.

Employers who extend an offer to an applicant conditioned on the applicant getting vaccinated may need to provide an accommodation if the applicant is unable to get vaccinated because of a disability or bona fide religious reason.  Under the EEOC’s guidelines, an employer cannot require an employee to get vaccinated if the employee has a disability protected by the ADA that prevents the employee from getting vaccinated, or if the employee has a sincerely held religious belief, practice, or observance protected by Title VII of the Civil Rights Act of 1964 that prohibits vaccinations.  California’s Fair Employment and Housing Act (FEHA) also protects individuals from discrimination, harassment and retaliation based on religion and disability.  The employer will need to conduct an individualized assessment to determine if the vaccination refusal is protected under the ADA, Title VII, or FEHA, and whether a reasonable accommodation can be made for the candidate.


Revised COVID-19 Workplace Rules

Question:  The economy re-opens in less than a week.  Will the COVID-19 workplace guidelines expire when that happens?

Answer:     No.  For the time being, the Cal/OSHA COVID-19 workplace guidelines that were originally adopted in November of 2020 will remain in effect when California’s economy re-opens on June 15, 2021.

On June 3rd, the Occupational Safety and Health Standards Board (the Standards Board) adopted a revised version of Cal/OSHA’s COVID-19 prevention emergency temporary standards.  These revised standards, which were expected to become effective on June 15, 2021, included key changes to the workplace guidelines with respect to masks, physical distancing, and excluding workers from the workplace.  For example, beginning on Tuesday, June 15, 2021, businesses could have allowed their workers to forego masks in a room as long as everyone in that room was vaccinated and asymptomatic.  Businesses would have also been able to end social distancing rules and remove partitions/barriers from the workplace as long as they provided respirators to unvaccinated employees for voluntary use.  Under these standards, employers would have been required to review updated guidance from public agencies and to update their written COVID-19 Prevention Programs to align their written programs with the revised standards.  None of these changes or requirements will go into effect on June 15, 2021.

After a special meeting on June 9th, the Standards Board voted to withdraw the revised standards that it had previously approved on June 3rd.  The purpose of the meeting was for the Standards Board to consider some additional revisions to the revised standards to make the updated mask guidance more consistent with the latest guidance from the Centers for Disease Control (CDC) and California Department of Public Health (CDPH).  The special meeting was attended by members of the public and included a public comment session that lasted over two and a half hours.  The Standards Board voted to withdraw the revised revisions in their entirety.  As a result, the current Cal/OSHA standards that were adopted in November of 2020 will remain in effect.  This means that when California moves “Beyond the Blueprint” and its economy re-opens on June 15, 2021, businesses should follow the same COVID-19 safety workplace rules that they have been following all along, until further notice.

As businesses are well-aware of by now, the November 2020 standards require employees to practice social distancing and generally wear masks at all times, with limited exceptions.  Also, under these standards businesses are required to exclude employees from the workplace if they test positive for COVID-19 or if they come into close contact with someone at work who tests positive for COVID-19.  The one exception is that fully vaccinated employees who are asymptomatic do not need to be excluded from the workplace because of a close contact with a confirmed COVID-19 case.

Businesses should expect the November 2020 standards to be revised in the near future.  In its latest news release, Cal/OSHA stated that the Standards Board could consider new revisions to the COVID-19 standards as early as June 17th.  Given Cal/OSHA’s impending revisions to its COVID-19 workplace standards, businesses should monitor Cal/OSHA’s webpage and be ready to act quickly once a new set of revised standards are approved.  To view the Cal/OSHA news releases on the updated standards, visit: https://www.dir.ca.gov/dirnews/link_page.html


Recalling Employees

Question: I am in the process of reopening my business. Am I required to recall all of the employees I laid off last year?

Answer: On April 16, 2021, a new law went into effect requiring certain employers to offer vacant positions to certain laid-off employees based on a preference system in accordance with specified timelines and procedures. The law, Senate Bill (SB) 93, will expire December 31, 2024.

SB 93 requires “employers,” defined as:

  • hotels with 50 or more guest rooms,
  • private clubs,
  • event centers,
  • airport hospitality operations and airport service providers, and
  • janitorial, building maintenance, and security services provided to office, retail, and other commercial buildings

to offer laid-off employees all vacant jobs that become available for which the laid-off employees are qualified. The law applies even if the employer relocated its operations, and it also applies to successor employers where there has been a change in control.

“Laid-off employee” means any employee who was employed by a covered employer for 6 months or more in 2019, and whose most recent separation from employment was due to an economic, non-disciplinary reason related to the COVID-19 pandemic. A laid-off employee that meets this definition is qualified for a position if the employee held the same or similar position at the business when the employee was laid-off.  Under SB 93, an employee who was terminated for performance reasons, or for reasons unrelated to the COVID-19 pandemic, is not entitled to rehire.

Laid-off employees who meet the SB 93 definition must be offered a job, in writing, in order of seniority with the employer, and must be given at least 5 business days to accept or decline the offer. An employer that declines to recall a laid-off employee on the grounds of lack of qualifications must provide the laid-off employee a written notice within 30 days stating the reason the employee was not offered a job, and provide a list of each employee that was recalled and the length of service for each such employee.  SB 93 requires employers to retain records for each laid-off employee for at least 3 years from the date of the written notice of the employee’s layoff.

SB 93  prohibits employers from retaliating against employees who exercise their rights under the new law and sets forth a process for filing a complaint with the Division of Labor Standards Enforcement.

On May 4, 2021, the Monterey County Board of Supervisors approved the “Hospitality Worker Right to Recall” Ordinance, which supplements SB 93. Under this  Ordinance, which applies only in the unincorporated area of the County of Monterey, a laid-off employee may bring an action in the Superior Court of the State of California against an employer for violations of SB 93. In order to bring a civil action, the laid-off employee must provide written notice to the employer and provide 15 days for the employer to cure any alleged violation. A laid-off employee who prevails in such a civil action may be awarded hiring and reinstatement rights; actual and statutory damages; and reasonable attorney’s fees and costs. The County Ordinance will go into effect on June 3, 2021 and will expire on January 1, 2022, unless renewed, revised, or extended.

As businesses subject to SB 93 re-open to full capacity, it is important to follow the requirements of laid off employees’ rights to be recalled to their former jobs.


American Rescue Plan Act 100% COBRA Subsidy

Question: Two of my employees were laid off over the last year because of the pandemic, and one employee resigned.  An employee I laid off in January 2021 just called me asking if I was going to pay his COBRA premiums.  Am I responsible for his premiums?

Answer: On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 ("ARPA"). Among other provisions, ARPA created a 100% COBRA premium subsidy and additional COBRA enrollment rights for certain employees (and their families) who lost group health plan coverage due to an involuntary termination of employment or a reduction of hours.

COBRA requires an employer-sponsored group health plan to give employees who otherwise would lose coverage due to termination (or another qualifying event) a chance to continue to buy coverage for themselves and any family members on the plan for a limited period after the qualifying event. The maximum coverage period is generally 18 months.  Under the ARPA, from April 1, 2021 through September 30, 2021, group health plans providing COBRA continuation coverage (or continuation coverage under state COBRA laws) must offer a 100 percent tax-free subsidy of COBRA premiums for “assistance eligible individuals” (AEIs) and their qualified beneficiaries.  AEIs who elect continuation coverage will not receive a payment for the premium assistance. Instead, the COBRA premium amount is advanced by the employer or plan, which will then be reimbursed by the federal government through a refundable credit against payroll taxes.

An individual is an AEI if he or she qualifies for COBRA coverage due to an involuntary termination of employment or reduction of hours.  Individuals who qualify for COBRA coverage due to other qualifying events, such as a voluntary termination of employment, are not AEIs and are not eligible for the premium subsidy. The subsidy does not apply to employees or family members who are or become eligible for other group health coverage or Medicare.

ARPA also provides a "second chance" election for individuals who did not initially elect COBRA or who let their COBRA coverage lapse prior to April 1, 2021 but are still within the 18-month COBRA eligible period.  Individuals who experienced an involuntary termination of employment or a reduction of hours so that COBRA would have started sometime within the 18 months prior to April 1, 2021, but who did not timely elect COBRA, may still elect subsidized COBRA coverage prospectively.  Additionally, individuals who had elected COBRA coverage but discontinued such coverage before April 1, 2021 are eligible to re-elect COBRA coverage if they would otherwise be AEIs and are still within their COBRA coverage period.

Employers or plan administrators must determine which employees/beneficiaries lost health plan coverage beginning on or after November 1, 2019 because of an involuntary termination of employment or reduction in hours.  For eligible individuals who become entitled to COBRA coverage from April 1 to September 30, 2021, the employer or plan administrator must include notice of the availability of premium assistance with its usual COBRA notice.  For other individuals who are still within their COBRA eligibility period who are receiving coverage or declined or dropped coverage, the employer or plan administrator must send notice of the availability of premium assistance and, if applicable, the extended COBRA election period.  The deadline to provide this notice is May 31, 2021.  Thereafter, the individual or beneficiary has 60 days after receiving a notice of the COBRA subsidy to make the election.

Additional guidance and model notices are available at https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/cobra/premium-subsidy.


Expansion of Mandated Reporter Laws

Question:  My business employs minors, especially during the summer.  Do I need to be concerned about any of my employees being mandated reporters of child abuse or neglect?

Answer:  Potentially.  The Child Abuse and Neglect Reporting Act (“CANRA”) requires that certain individuals who work with children, known as “mandated reporters,” report to specified law enforcement or county social services departments whenever they, in their professional capacity or within the scope of their employment, have knowledge of or observed a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.  Previously, there were about 49 different mandated reporters under the CANRA, including teachers, EMTs, and coaches. Assembly Bill (AB) 1963, effective January 1, 2021, expanded this list to include “human resource employees” of a business with 5 or more employees that employs minors, and, only for the purposes of reporting sexual abuse of children, any adult employee whose duties require direct contact with and supervision of minors in a business with 5 or more employees.

Under AB 1963, “human resources employees” are defined broadly as any employee designated by the employer to accept any complaints of misconduct (i.e., discrimination, harassment, retaliation, etc.) 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 of those individuals are now mandated reporters as of January 1, 2021.  Human resources employees are required to report all types of child abuse or neglect, while employees whose duties require direct contact with employees who are minors are only required to report sexual abuse.

Reporting Requirements

Under CANRA, if a mandated reporter knows or suspects that a child has been the victim of abuse or neglect, he or she must make an initial report by telephone to a designated agency such as a police or sheriff’s department, or the county welfare department, immediately, or as soon as is practicable, and provide a written follow-up report within 36 hours.  In Monterey County, the Department of Social Services is a designated agency.  Reports of abuse and neglect can be reported to either of its 24-hour hotlines: (831) 755-4661 or (800) 606-6618.  Visit SS8572B (monterey.ca.us) CHILD ABUSE SUMMARY REPORT DEPARTMENT OF JUSTICE (DOJ) FORM SS 8583 (monterey.ca.us) to obtain the Suspected Child Abuse Report (SCAR) forms and instructions for submitting written reports.

Employer Training Requirements

Employers who employ minors are now required to provide training in child abuse and neglect identification and reporting to all mandated reporters.  This training requirement may be met by completing the general online training for mandated reporters offered by the Office of Child Abuse Prevention in the State Department of Social Services.  Information on this training may be found at https://mandatedreporterca.com/.

Employers should identify the employees within their business who are mandated reporters, notify these employees of their status, and begin coordinating training.  Employers must provide their mandated reporters with written notice that acknowledges their status as mandated reporters, their obligations under CANRA, and the confidentiality rights and obligations under CANRA.   The text of the new law can be found at Bill Text - AB-1963 Child abuse or neglect: mandated reporters. (ca.gov).


New Guidelines for Reopening Businesses

Question: My employees have all been working remotely since March 2020.  I am now planning to reopen my office to the public.  What COVID-19 protocols do I need to follow?

Answer: As Monterey County continues to move into the less restrictive tiers, many businesses are making plans to have employees return to work in their offices.  Keeping up with the various local, state, and federal guidelines can be challenging.

On January 25, 2021, California ended its Limited Stay at Home Order and implemented the Blueprint for a Safer Economy.  Businesses preparing to reopen should visit California’s Blueprint for a Safer Economy website (https://covid19.ca.gov/safer-economy/), which includes industry-specific guidance on developing a workplace COVID-19 prevention plan, employee training, and protocols regarding testing, cleaning, and maintaining physical distancing in the workplace.  However, employers should note that California may end the Blueprint in the upcoming months.

In an April 6, 2021 press release, Governor Gavin Newsom announced that if California stays on pace with its COVID-19 vaccine distribution and keeps hospitalizations low, the state will “fully reopen” on June 15, 2021, and the Blueprint for a Safer Economy will end.  The press release indicates that while businesses may then return to usual operations, they must still comply with Cal/OSHA requirements and “common-sense public health policies,” such as mandated masking and encouraging vaccinations.

The California Department of Health (CDPH) has also indicated that if the state reopens on June 15, businesses listed in the Blueprint for a Safer Economy can return to usual operations, provided they comply with statewide agency guidelines.

Employers should remember that they must continue to comply with the Cal/OSHA Emergency Temporary Standards (COVID-19 Prevention Emergency Temporary Standards - Fact Sheets, Model Written Program and Other Resources (ca.gov)) in their workplaces.  These standards include implementing a written COVID-19 Prevention Program addressing topics including procedures for screening employees, identifying COVID-19 hazards, physical distancing, wearing masks, responding to COVID-19 cases, and recordkeeping and reporting requirements.

Furthermore, as the economy is re-opening, businesses must continue to implement many of the same procedures for protecting employees that have been in place prior to vaccinations including providing face coverings and maintaining six feet of physical distancing.  Cal/OSHA suggests other steps an employer may use to mitigate COVID-19 hazards including encouraging remote working; staggering arrival, departure, and break times; encouraging frequent handwashing; and reducing the number of employees and visitors in an area.  Employers must also implement procedures to minimize the sharing of tools and equipment, including vehicles.

Pursuant to federal Centers for Disease Control (CDC) guidelines, employers must continue to conduct symptom and temperature screening or instruct employees how to self-screen at home.  Employers should still encourage workers who are sick or exhibiting COVID-19 symptoms to stay home.

It is important to note that even though increasing numbers of employees are receiving the COVID-19 vaccine, vaccinated employees must still follow an employer’s COVID-19 prevention measures.

At a local level, Monterey County continues to encourage the community to use masks, practice social distancing, and avoid crowds.  Monterey County requires businesses to adhere to state and local industry guidance for reducing the risks associated with COVID-19 and to have procedures in place to identify COVID-19 cases in the workplace, be ready to intervene quickly, and work with Monterey County Public Health to halt the spread of COVID-19.  Monterey County guidelines for businesses can be found at the following link: 2019 Novel Coronavirus (COVID-19) - For Businesses | Monterey County, CA.


New California Supplemental Paid Sick Leave Law Applies to Employers with More Than 25 Employees and Expands Covered Reasons for Leave

On March 19, 2021, Governor Gavin Newsom signed into law SB 95 enacting a modified version of California’s COVID-19 supplemental paid sick leave (“SPSL”) law, which expired on December 31, 2020. Although SB 95 took effect on March 19, 2021, it provided a 10-day grace period until March 29, 2021 for employers to start providing this sick leave. The new law will remain in effect until September 30, 2021 and imposes many requirements, including the following:

Covered Employers. The SPSL law applies to employers with more than 25 employees.

Covered Reasons for SPSL.  Employees are permitted to take SPSL whenever they are unable to work or telework for any of the following reasons:

  • The employee is subject to a quarantine or isolation period related to COVID-19;
  • The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  • The employee is attending an appointment to receive a vaccine for protection against COVID-19;
  • The employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
  • The employee is experiencing symptoms related to COVID-19 and is seeking a medical diagnosis;
  • The employee is caring for a family member who is subject to a quarantine or isolation order or has been advised to self-quarantine;
  • The 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.

Retroactive Payments. The requirement to provide SPSL applies retroactively to January 1, 2021. If an employer did not compensate an employee for absences that are covered by this new SPSL law, the employer is required to issue retroactive payments to employees who request such payments verbally or in writing, unless the employee received exclusion pay under the Cal/OSHA Emergency Temporary Standards or other pay.

Rate of Pay. For non-exempt employees, the compensation rate is normally the employee’s regular rate of pay for the pay period in which SPSL is taken. For exempt employees, compensation is calculated in the same manner as the employer calculates wages for other forms of paid leave time.   An employer is not required to pay more than $511 per day and $5,110 in the aggregate. SPSL must be reflected on itemized wage statements, set forth separately from regular paid sick days.

Amount of SPSL. Full-time employees and employees who were scheduled to work an average of 40 hours per week in the two weeks before requesting SPSL are entitled to 80 hours of SPSL. Part-time employees generally receive SPSL based on the total number of hours they are normally scheduled to work over two weeks. There is no length of service requirement for SPSL entitlement.

Employers cannot require employees to use PTO, vacation, or unpaid time off before using SPSL. Employers may require employees to first exhaust their SPSL before the employer will be required to pay exclusion pay under the Cal/OSHA Emergency Temporary Standards.

Notice Requirement. Employers must provide employees with notice of this new law, at the worksite and electronically for remote workers.  The Labor Commissioner’s office model notice can be accessed here: https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf.

The text of SB 95 can be accessed at Bill Text - SB-95 Employment: COVID-19: supplemental paid sick leave. (ca.gov).

The Labor Commissioner’s 2021 COVID-19 Supplemental Paid Sick Leave FAQs can be accessed here: https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html.


Pandemic Fatigue

Question: After a year of COVID-19 pandemic related restrictions, my employees are experiencing fatigue about the pandemic and workplace COVID-19 related rules.  Some argue that they are not required to follow my business’s COVID-19 related safety rules unless the rules are mandated by law.  Can I continue to follow guidance from the Centers for Disease Control (CDC) and state and local health departments, even if the guidance is not mandated?  For example, can I implement COVID-19 related travel policies for employees who travel out of the country for vacations?

Answer: Employers are required to provide a safe workplace for employees, including protecting employees from infectious diseases like COVID-19. Accordingly, employers have the right to implement lawful workplace policies that protect the health and safety of employees.  Some such policies are mandated by law while others are adopted pursuant to government guidelines.

When establishing COVID-19 related policies, employers should follow the latest guidelines from the CDC, the California Department of Public Health (CDPH), the California Division of Occupational Safety and Health (DOSH), and their local health authority. Employers must make sure that workplace policies do not violate employees’ civil rights, including ensuring the policies are not retaliatory and do not discriminate against or harass an employee based on a protected category such as race, sex, or disability under the Fair Employment and Housing Act and the U.S. Equal Employment Opportunity Commission.

Employers may implement travel related policies designed to reduce the transmission of COVID-19. On January 6, 2021, the CDPH issued a new travel advisory telling California residents to avoid traveling more than 120 miles from their residences unless doing so is essential. The CDPH advisory also states that California residents returning home from other states or countries should self-quarantine for 10 days after arrival. See

www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Travel-Advisory.aspx for details.  The CDC recommends that individuals get tested and self-quarantine after all domestic and international travel. See www.cdc.gov/coronavirus/2019-ncov/travelers/after-travel-precautions.html.

Employers can adopt policies requiring employees to inform the employer if and when they are traveling out of California, out of the country, or traveling more than 120 miles from their home. Employers can require employees to be tested for COVID-19 upon their return from travel and to self-quarantine, even if they test negative.  Requiring all employees to disclose their travel destinations and to test or self-quarantine after their travels to protect other employees does not violate the employees’ right to privacy because there is no constitutional or statutory right to privacy in travel plans.  Employers who require employees to self-quarantine after travel should implement policies to establish whether the quarantine will be considered a paid or unpaid leave of absence to ensure consistency in the treatment of all employees and avoid liability.  Due to the complex federal and state laws relating to paid and unpaid time off due to COVID-19 quarantines, employers should first consult an attorney before implementing a quarantine policy related to travel.

Employers who ignore the recommendations of the CDC, the CDPH, and/or their local health authorities, and who fail to establish policies to ensure a safe workplace, expose themselves to claims from employees and others who contract COVID-19 at the workplace. Although employees may be more resistant to following and may challenge the legality of workplace COVID-19 related policies, employers are still required to adopt and enforce workplace rules that protect the health and safety of employees.