Author: Stephanie Hill

On December 16, 2021, the California Occupational Safety and Health Standards Board voted to re-adopt the Cal/OSHA Emergency Temporary Standards (“ETS”) on COVID-19 infection prevention, which takes effect on January 14, 2022. The revised ETS includes notable changes, including changes to masking and testing requirements for fully vaccinated individuals, exceptions for excluding close contacts, return to work criteria, and definitions for certain terms, as further described below. Cal/OSHA has released a summary and plans to publish updated FAQs once the revised ETS is effective.

Key ETS Changes

1. COVID-19 Testing Following Exposure.

• Existing Rule: An employer must make COVID-19 testing available at no cost, during paid time, to all employees who had a close contact and provide them with information on benefits, unless the employee was fully vaccinated, or in other limited circumstances.
• New Rule: An employer must make COVID-19 testing available to all employees who had a close contact, regardless of vaccination status, with limited exceptions. (Section 3205(c)(3)(B)(5).)

2. Exceptions to Excluding Close Contacts Requires Face Covering and Physical Distancing.

• Existing Rule: Employers must exclude persons who had a close contact with a COVID-19 case unless (1) the individual was fully vaccinated before the close contact and is asymptomatic, and (2) the individual recovered from COVID-19 in the past 90 days and has remained symptom free.
• New Rule: The same exclusion rules apply, but for the excepted employees to return, they must wear a face covering and maintain 6 feet of distance from others for 14 days. The employer also must provide information about applicable COVID-19 precautions. (Section 3205(c)(9).)

3. Return to Work Criteria Provides a 14, 10 and 7-day Timeline.

• Existing Rule: A person who had a close contact is permitted to return to work after 10 days if they never developed symptoms.
• New Rule: A person who had a close contact but never developed symptoms may return to work after 14 days, except when:
  (1) 10 days have passed and the person wears a face covering and maintains six feet of distance from others while at the workplace for 14 days following the close contact, or
  (2) 7 days have passed, the person tested negative for COVID-19 at least 5 days after the close contact, and the person wears a face covering and maintains six feet of distance from others while at the workplace for 14 days following the close contact. (Section 3205(c)(10)(D)(1).)

4. Critical Staffing Shortages.

• Existing Rule: Employers are provided an exception from the return to work requirements during critical staff shortages for health care workers, emergency response workers, and social service workers, when there are not enough staff to provide safe patient care, which may be implemented after 7 days if they test negative at least 5 days after exposure. (Section 3205(c)(10)(D)(3).)
• New Rule: The amended ETS removes this exception for critical staff shortages, and, instead, provides a 7-day return to work timeline for all exposures.

5. Outbreak Testing.

• Existing Rule: When a COVID-19 outbreak occurs, an employer is not required to make testing available to fully vaccinated employees before the outbreak period and who do not have COVID-19 symptoms.
• New Rule: This exception was removed. (Section 3205.1(b).)

6. Amended Definitions.

• “COVID-19 test”: The amended rule provides that a COVID-19 test may not be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.
• Amended definitions for “Face coverings,” “Fully vaccinated,” and “Worksite”.

December 13 CDPH Mask Guidance
The California Department of Public Health (“CDPH”) issued new Guidance for the Use of Face Coverings (“Guidance”) on December 13, 2021, which enacted a temporary mask mandate for all indoor public settings, irrespective of vaccine status. The mandate applies to all workplaces, with limited exceptions. This Guidance is in effect from December 15, 2021, through January 15, 2022. The CDPH recently provided clarification that if a local health jurisdiction had pre-existing masking requirements, irrespective of vaccine status, in indoor public settings, prior to December 13, 2021, then the local health jurisdiction is not required to comply with the Guidance, and the local mask requirement continues to apply. Ultimately, all employers must follow the current CDPH Guidance and the ETS’s face covering requirements.

Please contact a Meyers Nave attorney for help to navigate these issues.

Join Meyers Nave for our Employment Law Update on January 11 and 13, 2022 to discuss this and other key employment law updates.

The saga continues regarding the federal vaccine mandates. On November 4, 2021, the federal Occupational Health and Safety Administration (“OSHA”) issued an Emergency Temporary Standard (“ETS”) to require employers with 100 or more employees to have their employees vaccinated or undergo weekly testing by January 10, 2022, among other requirements.

The Fifth Circuit Court of Appeals almost immediately stayed the rule until judicial review is completed. On Friday, December 17, 2021, the Sixth Circuit Court of Appeals in Cincinnati lifted the temporary injunction. We expect further developments soon, as petitions have already been filed in the U.S. Supreme Court to challenge the temporary stay.

In light of the ongoing legal battles, on Saturday, December 18, 2021, the U.S. Department of Labor announced that it will not enforce the ETS against employers until February 9, 2022, as long as the employers exercise “reasonable, good faith efforts to come into compliance with the standard.” This will give employers more time to establish policies and gather records to comply with the new standard.

Please contact a Meyers Nave attorney if you need help navigating these issues.

Join Meyers Nave for our Employment Law Update on January 11 and 13, 2022 to discuss this and other key employment law updates.

On Monday, December 13, the California Department of Public Health issued guidance temporarily requiring masks to be worn in all indoor public settings, irrespective of vaccine status from December 15, 2021, to January 15, 2022. The Department of Public Health is concerned about the increased number of hospitalizations and cases in California, as well as the spread of the omicron variant.

Some counties, such as Los Angeles and several Bay Area counties, already had indoor mask requirements.

The new guidance is located here.

Please contact a Meyers Nave attorney if you need help navigating these issues.

The Ninth Circuit Court of Appeals recently issued a ruling that has caused concern among private employers who use mandatory arbitration agreements as a condition of employment.

Background

In October of 2019, Governor Newsom signed AB 51 into law, which prohibited employers from requiring job applicants or current employees to enter into arbitration agreements as a condition of their employment. A coalition of business groups filed United States Chamber of Commerce, et al. v. Bonta in the district court for the Eastern District of California, contending that the Federal Arbitration Act (“FAA”) preempted AB 51 and was thus unenforceable. A district court stayed AB 51 in December of 2019.

The Ninth Circuit Decision

On September 15, 2021, the Ninth Circuit ruled on a 2-1 basis that AB 51 is only partially preempted by the FAA. Specifically, the majority ruled that the portions of AB 51 that effectively precluded employers from using mandatory arbitration agreements as a condition of employment are not preempted by the FAA. The majority however also ruled that the criminal and civil penalties tied to the violation of AB 51 are preempted by the FAA. A strong dissent argued that the majority misinterpreted the broad preemptive effect of the FAA and pointing out that the issue will ultimately have to be decided by the U.S. Supreme Court.

Current Status and Next Steps

For procedural reasons, the stay on AB 51’s enactment remains in place until September 29, 2021. This means, as of now, past arbitration agreements are still in effect and new ones can be entered into. It is also very likely that the business groups will seek rehearing by the full Ninth Circuit and/or appeal to the United States Supreme Court for review. Assuming they do, the stay on AB 51’s enactment should remain in effect while the appeal proceeds. Given this procedural situation, employers – at least for now – can continue to require arbitration agreements for both existing employees and new hires. The situation should become more clear in the coming weeks, at which time we will reassess employers’ options. For more information and to discuss what is right for you at this point, contact Meyers Nave attorneys.

 

A series of executive orders, the most recent of which was set to expire on September 30, 2021, waived all physical-presence requirements under the Brown Act as a means of limiting the spread of COVID-19. Last week Governor Newsom signed into law AB 361, extending the authority of public agencies to conduct meetings by teleconference, including video conference, during the COVID-19 pandemic.

In light of the on-going pandemic, AB 361 gives the option to continue meeting virtually. Virtual meetings are permitted presently because the Governor has proclaimed a state of emergency and the state and many local officials recommend measures to promote social distancing. If those conditions change, the local agency can still meet virtually and has determined that physical presence at meetings would present imminent risks to the health and safety of attendees.

Beginning 30 days after the first meeting, the legislative body must reconsider the continuing need for virtual meetings every 30 days. The legislative body must find each time that it has reconsidered the circumstances of the state of emergency, and the state of emergency continues to directly impact the ability of the members to meet safely in person or state and local officials continue to impose or recommend measures to promote social distancing. If a majority of the members of a legislative body do not adopt these findings, then traditional Brown Act rules for teleconferencing apply.

Once a legislative body votes to implement AB 361, these requirements apply:

1. Notices and agenda requirements remain the same under the Brown Act;
2. No physical location is required for public attendance or public comment. However, the public must be able to access and participate in the meeting through a call-in or an internet-based service, and instructions for how to participate must appear in the posted notices or agenda;
3. Teleconference meetings must protect the statutory and constitutional rights of the parties and the public;
4. If there is any disruption of the call-in or internet-based service the agency must suspend the meeting until the problem is fixed;
5. Legislative bodies may allow public comments to be submitted prior to a meeting, but must also allow the public to participate in real time through call-in or internet-based service;
6. If an internet-based service requires registration through a third-party, individuals can be required to register with the third-party to participate in the meeting;
7. When providing a public comment period, whether after each item or during a general comment period, a legislative body must allow reasonable time for members of the public to comment, and must also include reasonable time for members to register with a third-party host, if applicable.

AB 361 is an urgency measure that went into effect immediately. It will expire on January 1, 2024. Members of local agencies are encouraged to contact their counsel with any questions about AB 361 or Brown Act rules going forward.