News & Events

Cal/OSHA Revised COVID-19 Prevention Emergency Temporary Standards

by Fenton & Keller

July 21, 2021

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.

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

by Fenton & Keller

July 20, 2021

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/

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

by Fenton & Keller

July 15, 2021

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.

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Heat Illness Prevention

by Fenton & Keller

July 9, 2021

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/.

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