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COVID-19 News & Resources for Farm Employers

Bryan Little, Farm Employers Labor Service

UPDATED: November 19, 2021

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COVID-19 Updates:

  • Standards Board Delays Consideration of Federal Vax Mandate:  On November 18, the Cal/OSHA Standards Board delayed consideration of a COVID-19 vaccination mandate in light of legal action delaying implementation of the Biden Administration’s federal Occupational Safety and Health Administration’s vaccinate-or-test mandate by the 6th U.S. Circuit Court of Appeals.  That court enjoined the federal agency from implementing its November 5, 2021 vax-or-mandate regulation until lawsuits filed by numerous state attorneys general, business organizations, and individuals are resolved.  California operates a “state plan” as permitted by the federal OSH Act of 1970, as do 24 other states, Puerto Rico and the U.S. Virgin Islands.  State plans are required to maintain and enforce regulations that are at least as effective as federal regulations and are generally required to bring their regulations in line with federal regulations.  In the 1970s, the California Department of Industrial Relations and the Cal/OSHA Standards Board developed a procedure named for state regulatory policy lawyer and former Assembly Member Paul Horcher to expedite the sometimes-cumbersome process of adapting state workplace safety and health regulations to federal requirements.  The so-called “Horcher” procedure allows the Standards Board to adopt federal regulations unchanged within 30 days.  However, federal regulations on suspension due to regulatory or legal action cannot be “horchered” as they are not in effect; thus the Standards Board has for now, put consideration of the federal vax-or-test mandate on hold.  The Cal/OSHA Standards Board is now expected to revert to its pre-November 5, 2021 plans and re-adopt for the second time permitted under the state Administrative Procedures Act the COVID-19 Emergency Standard first adopted in November 2020 and readopted in June 2021 (see “Cal/OSHA Releases Draft Re-Adoption of COVID-19 ETS,” below). (November 19, 2021)
  • Fed Vax Mandate Stymied by Court: Federal OSHA’s Emergency Temporary Standard mandating a vaccination-or-testing workplace policy for employers of 100 or more has been enjoined by the 5th U.S. Circuit Court of Appeal, effectively preventing OSHA from taking action to implement it’s November 4 rule, set to become effective on December 5 with the vaccination-or-testing mandate scheduled to become effective January 5.  California employers are more directly impacted by actions taken by Cal/OSHA and the Standards Board, and actions by those agencies are unclear at this time.  As before, California employers are not presently required to take any action to mandate vaccines and remain subject to the June 2021 version of Cal/OSHA’s Emergency Temporary Standard. (November 14, 2021)
  • Fed OSHA Releases COVID-19 Vaccination-or-Weekly-Testing Mandate:  On November 4, the federal Occupational Safety and Health Administration (OSHA) released information including regulatory text of its interim final regulation requiring employers of 100 or more to institute workplace safety policies requiring all employees to have received a COVID-19 vaccination or provide a negative COVID-19 test every seven days or less.  The draft regulation absolves employers of financial responsibility for testing, includes a new requirement for face covering for unvaccinated employees, and requirements for maintenance and production of records of employee vaccination and testing.  For seasonal employers, the OSHA interim regulation (the agency will take comments for 30 days before implementing the interim rule as a final rule sometime prior to the six-month expiration interim final rule) employers with a head count of fewer than 100 employees as of the implementation date of the regulation will fall under the regulation when it’s company-wide head count exceeds 100.  The Cal/OSHA Standards Board may adopt the fed OSHA rule at it’s meeting on November 18, with similar implementation timelines for vaccination mandates and testing.  Twenty-four state attorneys-general have indicated they intend to ask federal courts to enjoin federal OSHA’s action and the Fifth Circuit Court of Appeal has temporarily enjoined OSHA from implementing the regulation.  The likelihood of success, and the impact on Cal/OSHA action should that effort succeed are unknown.  At this time employers need take no action to implement either the federal rule, which has no force or effect in California, nor any California rule as the Cal/OSHA Standards Board has not yet adopted any regulation requiring COVID-19 vaccines.  FELS Group Legal Services plan partner firm Barsamian & Moody has furnished this analysis.  (November 7, 2021)
  • Cal/OSHA Releases Draft Re-Adoption of COVID-19 ETS: Meanwhile, Cal/OSHA is busily preparing to re-adopt (for the second time permitted under California’s Administrative Procedures Act) the COVID-19 Emergency Temporary Standard.  The current version of the ETS was adopted by the Cal/OSHA Standards Board in June 2021 (see Standards Board Readopts Revised ETS, below in Occupational Safety & Health Issues, June 17, 2021.)  The June 2021 version of the ETS is effective until January 14, 2022; it is anticipated the second readoption would occur at the Standards Board’s December 2021 meeting, becoming effective in January 2022 and remaining in place until April 2022. The draft readoption text differs from the June 2021 text in some important ways: it would require employers to exclude from the workplace any employee experiencing a close contact with a COVID-19-positive person unless the employee is fully vaccinated and remains asymptomatic if the employee wears a face covering and maintains social distance for 14 days after the contact and gets a COVID-19 test three to five days after the contact.  Employees experiencing a close contact may return to the workplace seven days after contact with a negative COVID-19 polymerase chain reaction (PCR) test if the specimen is taken five days after the contact if the employee wears a face covering and maintains social distance for 14 days after the contact.  If an outbreak occurs, employers would need to test vaccinated, asymptomatic employees and close contacts.  Vaccinated and unvaccinated employees would be required to wear face masks during workplace entry screening for COVID-19 symptoms. (November 1, 2021)
  • Western Center Posts Vaccine Events: Many California counties are organizing events where unvaccinated people can receive COVID-19 vaccinations.  The Western Center for Agricultural Health and Safety at UC Davis has published to their internet website a collection of information about various county vaccination events in English and Spanish. (October 18, 2021)
  • No Special Priority for Ag for Boosters:  After receiving several question about availability of COVID-19 boosters for agricultural employees and farm employers and making several inquiries with state agencies, it appears authorities are making no particular priority for availability of boosters to them.  Page one of COVID-19 Vaccine Booster Questions and Answers clarifies the priority; once fully vaccinated after six months any farm employee or farm employer with health or occupational risk is eligible for a booster. (October 18, 2021)
  • COVID-19 COVID-19 Supplemental Paid Sick Leave (SSPL) Expires Sept. 30: In the absence of action by the Legislature or an executive order by Governor Newsom, SSPL expired on September 30, 2021 (see  Retroactive COVID-19 Paid Sick Leave in Wage & Hour, Leaves Issues and UI/SDI/PFL, below.)  SSPL was mandated by an early-action budget bill in March 2021, and was retroactive to January 1, 2021.  According to California’s 2021 COVID-19 Supplemental Paid Sick Leave Expired on September 30, 2021 on California Department of Industrial Relations Division of Labor Standards Enforcement website, “It is important to note that workers taking 2021 SPSL as of September 30, 2021 may continue to take the leave they are currently on even if the entitlement extends past September 30, 2021. For example, an employee who exhibited symptoms and was recommended to isolate on September 28, 2021 may continue to utilize the 2021 SPSL they would be entitled to even if that isolation is required to extend into October 2021, and be paid for the time according to the requirements of the 2021 SPSL law. After September 30, workers who were not paid the SPSL they were entitled to when they were unable to work in 2021 due to COVID-19 can still request pay from their employer or file a claim with the Labor Commissioner.”   (October 8, 2021)
  • CDPH Revises Quarantine Guidance; Cal/OSHA Revises COVID-19 FAQ:  Cal/OSHA has revised its Frequently Asked Questions (FAQ) on its COVID-19 Emergency Temporary Standard (ETS) in response to revised guidance from the California Department of Public Health (CDPH) with respect to quarantine guidance for unvaccinated asymptomatic employees.  The ETS generally requires quarantines of 10 days for close exposures, but the new CDPH guidance offers limited opportunities for shorter quarantines.  Under the revised guidance, which Cal/OSHA must follow pursuant to an executive order issued by Governor Newsom in December 2020, asymptomatic unvaccinated employees my now end quarantine after either 10 days from exposure or 7 days from exposure with a negative COVID-19 test; however, the test specimen must have been collected at least 5 days after exposure to allow the shorter quarantine period.  (October 7, 2021)
  • Responding to Religious Objections to Vaccines: Per Christopher V. Bacon, Of Counsel at Vinson & Elkins: "While there are legitimate medical reasons for some people to forgo COVID-19 vaccines (e.g., serious allergies to vaccine components, Guillain-Barré syndrome and certain other health conditions), based on my conversations with my friends who are doctors, many physicians have been refusing patients’ requests for excuses from the vaccine if the patients would really be better off getting vaccinated. Employees are learning that it is much easier to seek a religious exemption from vaccine requirements because they are not required to provide a note from a religious expert attesting to their religious or moral beliefs that prevent them from being vaccinated. They simply need to assert their own personal beliefs. In many cases, employees have simply adapted one of the many “form statements” that are currently circulating on the internet, which is why some employers have seen multiple requests with identical language."  You can read more here.  (September 21, 2021)
  • Farm and Food Workers Relief (FFWR) Grant Program Announced by U.S. Department of Agriculture: USDA announced the availability of $700 million in competitive grant funding through the new Farm and Food Workers Relief (FFWR) grant program to help farmworkers and meatpacking workers with pandemic-related health and safety costs. The program will provide financial assistance to farmworkers, meatpacking workers, and grocery workers for expenses incurred due to the COVID-19 pandemic. This relief is intended to defray costs for reasonable and necessary personal, family, or living expenses related to the COVID-19 pandemic, such as costs for personal protective equipment (PPE), dependent care, and expenses associated with quarantines and testing related to the COVID-19 pandemic. California Farm Bureau played a major role in securing these funds through the Consolidated Appropriations Act of 2021. (September 16, 2021)
  • President Announces COVID-19 Plan:  On September 9, the White House announced a six-pronged COVID-19 plan designed to deal with COVID-19 while keeping schools open and avoid future lockdowns.  The plan’s major parts include increased vaccination, widening availability of booster shots for vaccinated people, additional vaccination and testing for school employees and students, making testing more available, streamlining the Paycheck Protection Program and providing more small business support, increasing support for hospitals and increasing availability of monoclonal antibody treatment.  In particular, the President’s plan requires employers of 100 or more and requiring such employers to furnish paid sick leave to employees suffering vaccine-related illness.  California currently has no similar vaccine mandate, and the existing COVID-19 paid sick leave mandate (which covers vaccine-related illness) will expire on September 30.  The President’s COVID-19 plan calls on the federal Occupational Safety and Health Administration (OSHA) to quickly publish an Interim Final Rule (IFR) (which federal law allows federal agencies to do if they feel they have good cause to do in cases impacting public health and safety; IFRs can be published quickly with little or no public comment) to implement the for vaccination or testing and paid sick leave for vaccination reactions.  Details are sketchy at this point; please watch the FELS website and FELS eNews for details as they become available. (September 14, 2021)
  • Employees Must be Notified of End of ARPA COBRA Benefits: The American Rescue Plan Act (ARPA) required employers to subsidize employees' cost of maintaining health insurace if they are eligible for COBRA (continuation of health insurance benefits) under state or federal law (see USDOL Releases ARPA COBRA Model Notices below). ARPA also requires employers to notify employees that may be eligible for subsidies that the subsidy mandate and their eligibility ends no later than September 15.  Please see As If Employers Didn’t Have Enough to Worry About, Don’t Skip the ARPA Cobra Subsidy Expiration Notice from Blank Rome's Workplace blog. (September 3, 2021) 
  • Reporting a Refusal of a Job Offer to EDD:  Agricultural employers report widespread vacancies and shortages of employees as the fall harvest season is ramping up, even as California's unemployment rate remains stubbornly high.  Did you know that eligibility for unemployment insurance benefits is contingent on beneficiaries being available to work and accepting suitable work except for good cause? The California Employment Development offers this YouTube video instructing employers on how to report a refusal to accept a job offer.  (September 3, 2021)
  • RAND Corporation Seeking Employer Feedback on COVID-19 Workers' Comp Presumptions:  As part of a study funded by California’s Department of Industrial Relations, the RAND Corporation is reaching out and speaking to employers in industries across California about their experiences with COVID-19 and COVID-19 claims. The conversations are anonymous and will be aggregated by industry and/or by region of California. RAND researchers are interested in hearing about how you as an employer:
    • responded to the requirements and laws surrounding COVID-19 and workplace safety;
    • handled the changing environment related to COVID-19 and outbreak reporting (i.e., SB 1159, Cal/OSHA emergency temporary standard, AB 685, etc);
    • put practices in place to continue operation of your business during the pandemic (i.e., changes in leave, staffing, safety, cleaning);
    • provided messaging to employees about COVID-19 claims;
    • had inquiries or claims related to COVID-19 and how those were handled.
The conversations are roughly an hour, voluntary and anonymous. RAND is seeking to learn about your experiences to better inform policymakers moving forward for employers and employees. Please contact Denise Quigley at RAND Corporation if you would like to participate: This email address is being protected from spambots. You need JavaScript enabled to view it. or 1800-447-2637, x-7549.  Please contact Denise by September 17 if you would like to participate. (August 31, 2021)
  • Workplace Exposure Employee Notification Template Form: Both Cal/OSHA's COVID-19 Emergency Temporary Standard and the Labor Code require employers to notify employees about possible workplace exposures to COVID-19.  You can use this template form to accomplish the required notification.  (August 26, 2021)
  • NIOSH COVID-19 Workplace Testing Survey – The National Institute for Occupational Safety and Health (NIOSH) is working jointly with the University of Miami to conduct a survey of farm employers about their experiences with workplace COVID-19 testing.  The hope is that NIOSH can use information from the survey to help facilitate availability and reliability of workplace COVID-19 testing.  The short, 27-question survey should take about 10 minutes to complete.  All your responses are anonymous. (August 9, 2021)
  • DOJ Endorses Employer Vaccine Mandates: The Office of Legal Counsel of the U.S. Department of Justice (DOJ OLC) issued an opinion memorandum on July 6 stating that Section 564 of the Food, Drug, and Cosmetic Act (Section 564) imposes no limitation on employers mandating employees receive a COVID-19 vaccine that has received Emergency Use Authorization status. This follows a U.S. District Court decision currently on appeal which dismissed a lawsuit where employees challenged a mandatory COVID-19 vaccination policy. This comes in addition to from the U.S. Equal Employment Opportunity Commission (EEOC) guidance that employers may require that employees be vaccinated against COVID-19 subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs that preclude vaccination. The U.S. Food and Drug Administration has granted EUA status to three COVID-19 vaccines. In each authorization, the FDA required distributors to furnish recipients a fact sheet stating “It is your choice to receive or not receive [the vaccine]. Should you decide not to receive it, it will not change your standard medical care.” Several lawsuits have argued this language precludes employers from imposing vaccination requirements. Employers now enjoy the endorsement of the U.S. Department of Justice, at least one federal court and the EEOC for policies mandating COVID-19 vaccination. However, employers must provide for appropriate reasonable accommodations based on disability or religion. (August 5, 2021)
  • Biden Admin. Finds “Long COVID” May Be an ADA Disability: Joint guidance recently released by the U.S. Department of Health and Human Service’s Office of Civil Rights (HHS), the U.S. Department of Justice (DOJ), the U.S. Department of Labor’s Office of Disability Employment Policy (DOL) indicate that federal agencies believe “Long COVID” may qualify as a disability under the Americans with Disabilities Act (ADA), possibly triggering requirements for employers to make reasonable accommodations for such individuals. According to HHS and DOJ, the physical or mental impairments caused by Long COVID may be disabilities under ADA (and possibly other federal disability laws) if they substantially limit one or more major life activities.  “Major life activities” include bodily functions, such as respiratory or circulatory systems and routine activities such as caring for oneself, sleeping, eating, working, thinking, and more. The new federal guidelines reiterate that the term “substantially limits” should be interpreted broadly and should not require extensive analysis. The impairment does not need to prevent or restrict an individual from performing a major life activity, need not be severe, permanent or long-term, and may be intermittent. If someone (an employee or job applicant) manifests a disability they are protected by the ADA. This would entitle them to reasonable accommodations from employers or potential employers if such accommodations do not pose an undue hardship.  You can find more information at the ODEP website. (August 5, 2021)
  • CDPH Updates Masking Guidance: On July 28, the California Department of Public Health (CDPH) issued updated mask wearing guidance in light rapidly increasing Delta-variant COVID-19 infections.  CDPH how is now "...recommending that fully vaccinated people also mask in indoor public settings across California. This adds an extra precautionary measure for all to reduce the transmission of COVID-19, especially in communities currently seeing the highest transmission rates. Local health jurisdictions may be more restrictive than this guidance. In California, fully vaccinated people might choose to wear a mask in indoor non-public settings, particularly if they are immunocompromised or at increased risk for severe disease from COVID-19, or if they have someone in their household who is immunocompromised, at increased risk of severe disease, not fully vaccinated, or not yet eligible for vaccination. In workplaces, employers are subject to the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) or in some workplaces the Cal/OSHA Aerosol Transmissible Diseases (ATD) Standard and should consult those regulations for additional applicable requirements."  It's important to note that CDPH's recommendation for masking in indoor public settings is important in the context of the revised COVID-19 Emergency Temporary Standard (ETS) readopted by the Cal/OSHA Standards Board on June 17 (see Standards Board Adopts Revised ETS, below).  The revised ETS requires employers to furnish and ensure use of face coverings "when required by orders from CDPH."  It's not entirely clear that CDPH's recommendation that fully vaccinated people mask in indoor settings constitutes an "order," but many seem to be assuming that it does.  What is clear is that CDPH's revised masking directive requires masking regardless if vaccination status in certain indoor settings like airports, airplanes and busses, in schools and daycare facilities, and may require masks or N95 respirators in healthcare settings, correctional facilities, and homeless shelters. Unvaccinated people continue to be required to mask in indoor public settings like stores and restaurants.  (July 29, 2021, revised August 2, 2021)
  • EEOC Allows Mandatory Vaccination Policies:  The federal Equal Employment Opportunity Commission (EEOC) has updated its COVID-19-related guidance with more FAQs about COVID-19 vaccinations for employees, including mandatory vaccination policies, vaccination incentive programs, and confidentiality requirements.  Federal law does not prevent an employer from requiring all employees to be vaccinated for COVID-19 if they are present in the workplace if employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964. Federal law does not prevent or limit incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) such as a pharmacy, health care provider, or clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential. Employers administering vaccines to employees may offer incentives to be vaccinated, as long as the incentives are not coercive. Vaccine recipients must answer a variety of medical history questions.  A very large incentive could make employees feel pressured to disclose protected medical information. (August 2, 2021)
  • Oregon Temporarily Expands Paid Sick Leave Law During Public Health Emergencies: On July 22, 2021, the Oregon Bureau of Labor and Industries (BOLI) promulgated a temporary rule expanding the reasons employees can use leave under the state’s paid sick and safe leave law during a public health emergency.  Until January 17, 2022, employees may take covered leave for absences connected to a level 2 or level 3 emergency evacuation order if the area subject to the order includes either the workplace or the employee’s home; and a public official with the necessary authority determines that air quality index or extreme heat is hazardous to the employee’s health.   Oregon employers should remember that there are many reasons employees can use leave under Oregon’s paid sick and safe leave law, including but not limited to an employee or family member’s illness, injury, or health condition, absences connected to domestic violence, harassment, sexual assault, or stalking, along with any reason in Oregon’s Family Leave Act (OFLA), e.g., new child bonding, bereavement, or body part, organ or tissue donation. (August 2, 2021)
  • Cal/OSHA Furnishes Updated COVID-19 Model Prevention Program: On June 29, Cal/OSHA released an updated written model COVID-19 Prevention Program.  The COVID-19 Emergency Temporary Standard as updated on June 17 (see "Standards Board Readopts Revised ETS," June 17, 2020, below) requires employers to implement and maintain a written COVID-19 Prevention Program.  The agency provides that model written program in English and Spanish in a fillable Word format in English and Spanish. (July 5, 2021) 
  • FELS/B&M Provide Template Vaccination Record:  The COVID-19 Emergency Temporary Standard that became final upon approval of the Cal/OSHA Standards Board with an executive order from Governor Newsom waiving the customary 10-day regulatory review (see Standards Board Adopts Revised ETS, below) requires employers to ascertain and maintain a record of an employee's vaccination status.  This is necessary to determine whether an employee must wear a face covering while working indoors, whether that employee is eligible to receive an employer-provided respirator on request under voluntary use rules, whether certain employees must be excluded and have their wages maintained if they are exposed to COVID-19 and whether that employee must be offered post-exposure COVID-19 testing.  FELS' Group Legal Services Program partner firm Barsamian & Moody has furnished for the use of FELS customers and clients this self-attestation form, allowing you to ascertain and maintain a record of which employees attest to being fully vaccinated for the purposes of the ETS.  (June 23, 2021)
  • EDD to Reinstate Work Search Requirement for UI Beneficiaries:  On June 17, the Employment Development Department (EDD) announced it will reimpose the requirements for UI recipients to actively seek work to continue receiving benefits.  Those requirements were suspended in March 2020 due to the COVID-19 pandemic.  You can read EDD's press release here.  EDD's action my ease struggles employers in all industries, including agriculture, have had recruiting employees, in particular employees with specific skills like truck drivers. (June 21, 2021) 
  • Cal/OSHA Posts ETS FAQs: Cal/OSHA has developed and posted FAQs that highlight the changes between the original November 30, 2020 ETS and the revised ETS, including updates on compliance and enforcement, and updated the main set of COVID-19 Emergency Temporary Standards FAQs that reflect the requirements of the June 17, 2021 ETS. (June 21, 2021)

 

COVID-19 Resources for Farm Employers:

 

  • ETS Lawsuit Update:  The coalition of agricultural employers’ organizations who were denied a trial court preliminary injunction against enforcement of Cal/OSHA’s COVID-19 Emergency Temporary Standard (ETS) have filed an appeal, and the plaintiff’s opening brief was filed with the Court of Appeals on April 6.  The Court of Appeals granted the plaintiff’s request for expedited consideration.  Once the Court of Appeals receives the trial court’s complete record on the case (which had not happened as of April 8) the appellants’ brief will be considered filed as of that date.  The Attorney General (representing Cal/OSHA) will be required to respond within 30 days absent a showing of “extraordinary good cause.”  The appellants’ response will be due 10 days after that, and the court will schedule an oral argument “as soon as practicable.” (April 9, 2021)
  • ETS Preliminary Injunction Petition Denied: February 25, 2020: Superior Court Judge Ethan Shulman had denied a request from a coalition of agricultural employer organizations including FELS' parent organization California Farm Bureau to issue a preliminary injunction against enforcement of Cal/OSHA's COVID-19 Emergency Temporary Standard (ETS).  In so doing, Judge Shulman showed a high level of deference to the agency.  The coalition is considering next steps.  You can read the judge's ruling here. (February 25, 2021)
  • ETS Lawsuit: California Farm Bureau along with several plaintiffs representing agricultural employers filed suit in Los Angeles Superior Court on December 31, 2020 against the Division of Occupational Safety and Health and the Occupational Safety and Health Standards Board as well as Cal/OSHA Chief Doug Parker and the individual members of the Cal/OSHA Standard Board in their official capacities seeking injunctive and declaratory relief with respect to the COVID-19 Emergency Temporary Standard promulgated by the Board on November 30.  Because we expect employers to incur non-compensable damages as a result of these regulatory mandates, we have also asked the court to issue a preliminary injunction.  A hearing is expected before the end of January.

 

Coronavirus Vaccines:

 

  • EEOC Offers New Workplace Vaccination Guidance:  The U.S. Equal Opportunity Commission (EEOC) released updated guidance on COVID-19 vaccines in the workplace dealing with whether employers may mandate employee vaccines and what sort of incentives employers may provide to encourage vaccination.  In general, EEOC’s guidance indicates that an employer may require all employees to be vaccinated in order to enter the workplace, though employers must comply with requirements to ascertain the need for and offer reasonable accommodations under the Americans With Disabilities Act (ADA) and Title VII of the U.S. Civil Rights Act of 1964. FELS Group Legal Service Program partner firm Barsamian & Moody have provided COVID Updates: Cal/OSHA Board Considering Emergency Temporary Standard Revision and EEOC Advises Employers on Incentivized Vaccination for more information. (June 2, 2021)
  • Santa Clara County Imposes Obligations on Employers to Ascertain and Record Employees' Vaccination Status: On May 18, Santa Clara County issued a health order requiring employers in the county to ascertain employees' COVID-19 vaccination status and to track their status as it changes.  Employers are not required to request or maintain records of employees' vaccination status.  As of June 1, employees who are not vaccinated will be subject to Santa Clara County health orders: Mandatory Directive for Unvaccinated Personnel and Mandatory Directive on Face Coverings.  Employers are required to reconfirm employees' vaccination status every fourteen days and maintain detailed records demonstrating their compliance. (May 25, 2021)
  • DIR: Time for Employer-Mandated Vaccines/COVID-19 Tests is Compensable: The California Department of Industrial Relations (DIR) recently updated guidance on wage-and-hour implications of employer-mandated COVID-19 vaccination or COVID-19 testing.  According to DIR, an employer must pay employees for time for employer-mandated vaccines or testing, including travel time because DIR considers this "hours worked," as the employee is subject to the employer's control.  An employer may not require employees to utilize paid leave for this purpose.  DIR also says the employer must bear the cost of employer-directed testing or vaccination. (March 30, 2021)
  • Mandating COVID-19 Vaccines -- a Caveat: When employers consider whether to mandate COVID-19 vaccines for their employees, they should keep in mind while the Department of Fair Employment and Housing recently opined that employers may require vaccines without running afoul of discrimination laws, DFEH characterized available vaccines as being "authorized and recommended" by the U.S. Food and Drug Administration (FDA).  This is not the case; no vaccine presently available had received FDA approval.  Rather, they are being administered under Emergency Use Authorization issued by FDA to facilitate vaccinations (see Emergency Use Authorizations for Vaccines Explained from FDA's website).  This matters because vaccine manufacturers enjoy legal protection should their vaccines cause any injury barring "willful misconduct" by the manufacturer.  If you require employees to receive the vaccine and one of your employees suffers an injury, they will be unable to sue the manufacturer.  Given the litigious nature of California, it seems possible (maybe likely) that the next-best target would be an employer who mandated the vaccine for employees.  Adding this potential concern to issues around the need to provide accommodations for employees for disabilities or sincerely held religious beliefs, employers contemplating requiring employees to receive the vaccine should have very strong safety-related and continuity of operations-related reasons for doing so. (March 19, 2021)
  • DFEH: Employers Can Mandate COVID-19 Vaccines: Weighing on an issue that has caused much confusion, the California Department of Fair Employment and Housing (DFEH) has issued guidance that employers can mandate COVID-19 vaccination as an employment condition, provided the employer does not discriminate on the basis of any protected characteristic and makes reasonable accomodations related to disability or sincerely-held religious beliefs or practices.  You can review DFEH's new FAQ here.  FELS' Group Legal Service Program partner firm Barsamian & Moody has furnished this summary of DFEH's guidance. (March 4, 2021)
  • CDC Issues Guidance for Fully Vaccinated Individuals: On March 8, 2021, the Centers for Disease Control and Prevention (CDC) issued its first set of recommendations on activities that people who are fully vaccinated against COVID-19 can safely resume. The new guidance—which is based on the latest science — includes recommendations for how and when a fully vaccinated individual can visit with other people who are fully vaccinated and with other people who are not vaccinated. This guidance represents a first step toward returning to everyday activities in our communities. CDC will update these recommendations as more people are vaccinated, rates of COVID-19 in the community change, and additional scientific evidence becomes available.  It is important to note that this CDC guidance is not consistent with requirements of the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS) and social distancing, masking and other sanitation requirements of the ETS remain in effect even to the degree CDC's new guidance may be less stringent.  You can read more here. (March 8, 2021)
  • Newsom Administration Announces New Vaccine Distribution Plan:  In a new system to allocate COVID-19 vaccination doses released by the Newsom Administration March 5, 2021, 40% of available vaccine doses will be set aside for the hardest-hit communities according to the Healthy Places Index (HPI), doubling the current vaccine allocation for these communities. As greater numbers of people are vaccinated in areas with lower incomes and higher rates of infections, counties will be permitted to re-open businesses and other activities more quickly than currently envisioned. The state will determine an allocation formula where communities most impacted by COVID-19 receive more vaccines. The state will also allocate and reserve appointments to local communities at many clinics and other providers via the My Turn appointment registration system. In spite of strong advocacy from FELS parent organization California Farm Bureau for their involvement, it is unclear where or how local organizations like county Farm Bureaus and agricultural employers will fit into this new system being assembled by the state government and Blue Cross, to what degree and how quickly existing distribution systems will be dismantled in favor of this new system, or what role local organizations and farm employers will be able to play in the new system, other than directing employees or groups of employees who wish to be vaccinated to the My Turn system.  More information is available in FACT SHEET: Ending the Pandemic Through Equitable Vaccine Administration. (March 5, 2021)
  • FELS Furnishes Ag Employment Letter: February 10: Certain county health departments are beginning to furnish COVID-19 vaccines to critical infrastructure employees, including food and agricultural employees.  In some cases, potential vaccine recipients are being asked for proof of employment.  Should an employee who seeks a vaccination not possess any kind of company identification (i.e. an ID badge or facility access card) and prefer not to furnish a paycheck stub, a substitute form of proof of employment may be needed.  FELS has created this proof of employment letter you can furnish your employees to verify their employment in an eligible essential workforce sector.
  • CDC COVID-19 Vaccination Toolkit:  On January 29, U.S. Centers for Disease Control (CDC) released COVID-19 Vaccine Communication Toolkit for Essential Workers: Getting Started.  It includes resources to "...help employers educate their essential workers about this important new prevention tool."  The toolkit has resources available in Spanish as well as English.
  • EEOC Issues Guidance for Mandatory COVID-19 Vaccine Policies: Though a COVID-19 vaccine for large swaths of the U.S. population may not be available until the Spring or Summer of 2021, the U.S. Equal Employment Opportunity Commission (EEOC), the principal agency coordinating enforcement of federal anti-discrimination laws, has issued guidance indicating that employers may require employees to take a COVID-19 vaccine potentially as a condition as a return-to-work or workplace access condition.  A requirement for employees to take a COVID-19 vaccine when available implicates federal civil rights laws, including the Americans with Disabilities Act (ADA), the Genetic Non-Discrimination Act (GINA), and the religion-based discrimination prohibitions of Title VII of the Civil Rights Act of 1964.  EEOC’s guidance clarifies that employers who wish to adopt a mandatory vaccination policy must make exemptions or accommodations for employees with sincerely-held religious beliefs that prohibit receiving the vaccine, or medical conditions or disabilities the prevent them from receiving the vaccine; however, EEOC’s guidance clarifies that a requirement to furnish an employer with evidence the employee has received the vaccine is neither a medical examination or disability-related inquiry that would be regulated by ADA.  However, should an employer elect to administer a mandatory vaccine or have this done by a third party provider, it is likely that potential vaccine recipients will be asked questions that could elicit responses pertaining to a possible disability, so doing so must be job-related and consistent with business neccessity.  The nationally-recognized employer-oriented employment law Littler has published this News & Analysis article, "EEOC Issues Guidance on COVID-19 Vaccination Policies" with more information and analysis.
  • Employer Considerations for COVID-19 Vaccines:  Seyfarth Shaw's recent Legal Update, Top Ten Considerations for Employers When it Comes to Potential COVID-19 Vaccine Programs raises interesting questions and provides some interesting guidance for employers when COVID-19 vaccines become available; should you make vaccination mandatory for employers to be in the workplace? In an age when virtually everything has become political, how do you cut through the political noise and figure out what you need to do to protect your employees?  Does your approach to this question open you up to union organizing? You can read more here.
  • MyTurn: Governor Newsom also announced on January 25 a new pilot one-stop vaccination hub, MyTurn.  MyTurn is (for now) limited to Los Angeles and San Diego counties, and is operated by the California Department of Public Health. 

 

 

  • USDOL Releases ARPA COBRA Model Notices: On April 7, the U.S. Department of Labor issued guidance for employers (those who provide health insurance for employees) to administer COBRA subsidies mandated under the American Rescue Plan Act (ARPA) of 2021.  In addition to Frequently Asked Questions and model COBRA election forms, DOL also provided information about COBRA premium subsidies available to employers to defray the cost of paying for COBRA-eligible employees’ health insurance premiums. Proskauer Rose has published this excellent description of the COBRA subsidy and notice requirements of ARPA, "DOL Releases COBRA Premium Subsidy Model Notices -- With a Few Surprises." (April 9, 2021)     

 

Coronavirus Testing: 

 

  • State Task Force Offering Rapid COVID-19 Testing: Cal/OSHA's COVID-19 Emergency Temporary Standard (ETS) requires employers to offer COVID-19 testing to employees in certain situations; the California Coronavirus COVID-19 Testing Task Force is looking to partner with organizations interested in setting up on-site Antigen testing for their employees, guests, and/or their community. To get started, organizations can learn more about their testing options and submit an application to become a testing partner here. Please feel free to reach out with any questions to This email address is being protected from spambots. You need JavaScript enabled to view it..
  • Updated CDC Travel Guidance: The U.S. Centers for Disease Control (CDC) released updated guidance for domestic travel on April 2.  Vaccinated people can generally travel freely while following masking, social distancing guidelines, and handwashing protocols, but do not need to test and quarantine after travel.  Post-travel test-and-quarantine protocols continue to apply to unvaccinated people. (April 9, 2021)
  • 2021 California COVID Guide: What To Do If Employees Test Positive for COVID-19: February 17, 2021: Davis Wright Tremaine LLP has published a useful reference article to help employers sort through federal and state COVID-19 mandates; you can read more here.
  • CDC Updates Workplace-Based Testing Guidance: January 29: The U.S. Centers for Disease Control (CDC) has issued updated guidance for employers considering implementation of workplace-based COVID-19 testing, including recommending disclosures to employees who participate in workplace testing.  While much of what CDC recommends is also required by the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS), it also serves as a reminder to employers that they are specifically permitted by the ETS to rely on publically-available testing furnished outside the workplace.   

 

Coronavirus Aid, Relief, and Economic Security (CARES) Act Paycheck Protection Program (PPP) Resources:

 

  • Paycheck Protection Program (PPP) Extension: On July 4, President Trump signed a bill that will extend the application period for the Small Business Administration’s (SBA) Paycheck Protection Program through August 8, 2020.  The program, originally included in the CARES Act, was originally set to expire June 30, 2020. This extension will allow farmers and ranchers additional time to consult with their accountant, tax preparer and/or financial advisor(s) about the PPP application to ensure the proper documentation has been completed and reviewed.  The SBA has reported that over $130 billion remains unexpended in the program. 

    Additionally, the SBA has issued an interim final rule that incorporates the loan forgiveness changes of the Paycheck Protection Flexibility Act. The interim final rule: reduces the minimum amount of loan forgiveness that comes from payroll costs from 75% to 60%; extends the forgiveness period to include costs incurred over 24 weeks after a loan is issued or through Dec. 31, whichever comes first. Businesses that received a loan before the measure is enacted could keep the current eight-week period; establishes a minimum loan maturity period of five years following an application for loan forgiveness, instead of the current two-year deadline set by the SBA. That provision would apply to PPP loans issued after the measure is enacted, though borrowers and lenders could agree to extend current loans; extends the period in which loans can be forgiven if businesses restore staffing or salary levels that were previously reduced from June 30 to Dec. 31. The provision would apply to worker and wage reductions made from Feb. 15 through 30 days after enactment of the CARES Act (signed into law March 27); maintains forgiveness amounts for companies that document their inability to rehire workers employed as of Feb. 15, and their inability to find similarly qualified workers by the end of the year. Companies would be covered separately if they show that they couldn’t resume business levels from before Feb. 15 because they were following federal requirements for sanitization or social distancing; allows borrowers to defer principal and interest payments on PPP loans until the SBA compensates lenders for any forgiven amounts, instead of the current six-month deferral period. Borrowers that don’t apply for forgiveness would be given at least 10 months after the program expires to start making payments.  The SBA also has also released a new EZ PPP loan forgiveness application form.  The Flexibility Act requires SBA to create a more “borrower-friendly” application form.  SBA and Treasury have also released a revised full PPP loan forgiveness application form. Again, we encourage members to consult with their accountant, tax preparer and/or financial advisor about the PPP application and loan forgiveness process to ensure all the proper documentation has been completed and reviewed.  Additionally, specific application questions can be submitted directly to SBA via the SBA Customer Service Center by calling 1-800-659-2955 or emailing This email address is being protected from spambots. You need JavaScript enabled to view it. 
  • The U.S. Small Business Administration has announced that agricultural enterprises can begin submitting applications for the Economic Injury Disaster Loan Program (EIDL).  These applications will be accepted on a limited basis and on a first-come-first-served basis.  Eligible agricultural businesses may apply for the Loan Advance at this link.  For more information, see the SBA press release.
  • U.S. Small Business Administration and U.S. Dept. of Treasury have released additional information and guidance useful to agricultural employers seeking to use the Paycheck Protection Program (PPP), in particular an Interim Final Rule allowing seasonal agricultural employers to use an alternative payroll period to calculate their payroll needs, guidance on calculating loan amounts when applying for PPP, and new Frequently-Asked-Questions on PPP. 
  • California Farm Bureau (CFBF): PAYCHECK PROTECTION PROGRAM: President Trump has signed H.R. 266, the Paycheck Protection Program and Health Care Enhancement Act, which provided $320 billion in additional funding for the Paycheck Protection Act (PPP). The Small Business Administration (SBA) and the United States Treasury have announced that the SBA will resume accepting PPP loan applications on Monday, April 27 at 10:30 AM EDT from approved lenders on behalf of any eligible borrower.  They have indicated that the start time will help ensure that SBA has properly coded the system to account for changes made by the legislation. This program is first come, first serve and funding is expected to run out quickly.  Interested applicants are advised to consult with their accountant, tax preparer and/or financial advisor(s) and apply immediately to have optimal opportunity to access PPP funding. See Frequently-Asked-Questions. ECONOMIC INJURY DISASTER LOAN program (EIDL): The EIDL Program offers up to $2 million in assistance loans with a 3.75% rate. These loans may be used to pay fixed debts, payroll, accounts payable and other bills that can’t be paid because of the disaster’s impact. In response to the Coronavirus (COVID-19) pandemic, small business owners are eligible to apply for an EIDL advance of up to $10,000. This advance will provide economic relief to businesses that are currently experiencing a temporary loss of revenue. Funds will be made available within three days of a successful application. The loan advance will not have to be repaid. This is the first time agriculture is eligible to apply. More information can be found HERE.
  • CFBF: SBA Interim Final Rule (IFR) for sole proprietors applying for Paycheck Protection Program assistance;memorandum from Erin Huston, CFBF Federal Policy Division
  • CFBF: Paycheck Protection Program FAQs
  • CFBF: Small Business Administration - Paycheck Protection Programinformation from California Farm Bureau confirming that agricultural businesses are eligible to participate, contrary to earlier information. 
  • U.S. Dept. of the Treasury: Assistance for Small Business: overview of resources for small businesses seeking to access and use PPP loans
  • Treasury Dept.: One-page overview of PPP; PPP Overview
  • Treasury Dept.: CARES Act Assistance for Small Business: overview of resources for small businesses seeking to access and use PPP loans; One-page overview of PPP; PPP Overview
  • Internal Revenue Service: IRS has issued revised guidance has issued revised guidance (superceding prior guidance) concerning tax credits available to reimburse employers for the cost of providing FFCRA-mandated leaves.  FAQ #6 and #10 appear to conflict with accompanying summary material on the webpage; please be advised further clarication may be forthcoming.  FAQ#9 explains how to calcuate the cost for which you can claim a credit for health insurance benefits.
  • Barsamian & Moody: Basics of the CARES Act
  • California Small Business Development Centers (SBDC): Guide to COVID-19 Loans and Forms: information for applying for small business relief and continuity lending from the U.S. Small Business Administration (U.S. SBA)
  • SBDC: COVID-19 Survival Guide:  SBA Economic Injury Disaster Loans, EDD for Businesses and Employees, Business Interruption Insurance (courtesy Ofc. of Rep. Tom McClintock) 
  • U.S. Senate Committee on Small Business & Entrepreneurship: Paycheck Protection Program FAQs for Small Business (courtesy Ofc. of Rep. Tom McClintock)
  • Senate Small Business Committee: The Small Business Owner's Guide to the CARES Act (courtesy Ofc. of Rep. Tom McClintock)

 

Occupational Safety & Health Issues:

 

  • Standards Board Readopts Revised ETS: On June 17, the Cal/OSHA Standards Board voted to readopt a revised COVID-19 Emergency Temporary Standard (ETS) proposed to the Board by Cal/OSHA.  Barring further action by the Board or by Governor Newsom, this iteration of the ETS will be effective for 210 days from the date of adoption – mid-January 2022.  The California Administrative Procedures Act allows the Board to readopt the ETS one additional time.  Under normal circumstances, an emergency temporary standard would only be effective for 180 days; Governor Newsom issued pandemic-related executive orders extending the timelines for various regulatory actions.  You can read more here. (June 17, 2021) 
  • Standards Board/Agency Release ETS Revision.  On June 11, Cal/OSHA released and the Standards Board posted on their website revisions to the November 2020 Emergency Temporary Standard (ETS).  This action comes after two prior attempts to revise the ETS that did not comply with guidance from the U.S. Centers for Disease Control (CDC) and California Department of Public Health (CDPH).   It was necessary for the agency to release language by close-of-business on the 11th for those revisions to “noticed” in time for consideration by the Standards Board at their regularly-scheduled June 17 meeting.  You can read more here.  (June 13, 2021) 
  • Standards Board Pulls the Reins on Revised ETS; NOVEMBER 2020 ETS REMAINS IN EFFECT: On June 9, the Cal/OSHA Standards Board withdrew from consideration by the Office of Administrative Law (OAL) revisions to the November 2020 COVID-19 Emergency Temporary Standard (ETS) that the Board had rejected, then approved an hour later, on June 3 (see DIR June 9 press release).  THIS HAS THE EFFECT OF LEAVING THE NOVEMBER 2020 ETS IN EFFECT UNCHANGED including onerous social distancing, outbreak management, face covering, and employer-provided housing and transportation requirements.  Those revisions had been proposed by Cal/OSHA in late May but were not considered at that time by the Board at the urging of Cal/OSHA.  The agency urged delay in light of face covering guidance issued by the U.S. Centers for Disease Control in mid-May to the effect that vaccinated people need not practice face covering in most instances.  The Board’s actions leave the November 2020 ETS in place unchanged, which makes no accommodation to the growing number of California employees who have received vaccines.  Unless Governor Newsom acts by executive order to curb the actions of the agency and the Board, the ETS will be effective until late 2021 unless the Standards Board rescinds it at some future date.  FELS is presenting a webinar on the ETS situation on June 11 with Seth Mehrten of Group Legal Services Program partner firm Barsamian & Moody; you can find out more here. (June 10, 2021)
  •  Standards Board Punts on ETS Revision: On May 19, Cal/OSHA asked the Cal/OSHA Standards Board to withold a vote on proposed revisions to the November 2020 COVID-19 Emergency Temporary Standard (ETS) to allow time for the agency to prepare a revised proposal that the Board could consider prior to Governor Newsom's announced reopening date of June 15.  The Standards Board complied at its May 20 meeting after hearing several hours of public comment from opponents and proponents of the ETS.  On May 21, the Standards Board released public notice of a hearing on the agency's second draft of the revised ETS; this hearing is to occur on June 3. The Board's meeting notice said it expected to post a draft revision on or before May 28.  The Board makes video of its meetings availble on its website. (May 21, 2021)
  • CDC Issues Revised Masking Guidance: On May 13, the U.S. Centers for Disease Control issued new masking guidance that vaccinated individuals may discontinue masking indoors and outdoors except in crowded places like an airplane or indoor event.  While Cal/OSHA has proposed revisions to the COVID-19 Emergency Temporary Standard, those revisions fall well short of CDC guidance.  We expect revised guidance from the California Department of Public Health in response to the new CDC guidance shortly.  (May 14, 2021)
  • Cal/OSHA Releases Proposal for Revised COVID-19 ETS:  On May 7, the Department of Industrial Relations’ Division of Occupational Safety and Health (Cal/OSHA) released draft language to revise and readopt its COVID-19 Emergency Temporary Standard (ETS).  The Cal/OSHA Standards Board is expected to consider and approve this revision on May 20, and the revised ETS is expected to be effective by June 1 and be effective through the end of 2021.  The proposed revisions for the first time consider the impact of wide-spread COVID-19 vaccination on the implementation of workplace COVID-19 safety measures, allowing exemptions for vaccinated employees from certain workplace exclusion, social distancing, post-exposure testing, and employer-provided transportation and housing requirements of the ETS.  However, the revised version makes no apparent accommodation loosening face covering requirements and will require employers to offer unvaccinated employees N95 respirators under modified “voluntary use” rules similar to those governing N95 use in the Wildfire Smoke regulation.  This will be imposed as California enters what may be a very severe wildfire season that could place very high demands on available supplies of N95 respirators, stressing supply lines that are just beginning to recover from the strain of supplying unprecedented numbers of N95s and other types of personal protective equipment to healthcare and frontline workers throughout the COVID-19 pandemic.  (May 12, 2020) 
  • Cal/OSHA issues Revised Workplace Guidance for Vaccinated Employees: The Division of Occupational Safety and Health at the Department of Industrial Relations (Cal/OSHA) issued revised guidance for implementaton of the COVID-19 Emergency Temporary Standard (ETS) on May 5.  That revised guidance reflects the agency's interpretation of the impact on their enforcement of the ETS of revised masking and social distancing guidance issued by the U.S. Centers for Disease Control (CDC) on April 27 and the California Department of Public Health (CDPH) on May 3 (see "CDPH Issues Revised Quarantine Guidance," below).  Specifically, Cal/OSHA revised the ETS Frequently-Asked Questions (FAQ): "Outbreaks and the 'Exposed Workplace'" FAQ 12, 14 & 25: employers no longer need to exclude from the workplace fully vaccinated employees who experience COVID-19 exposure but do not meet "case" criteria (principally a positive COVID-19 test) and are asymptomatic; and "Testing" FAQ 9: employers are required to offer testing to COVID-19-workplace-exposed employees, but need not exclude from the workplace (and provide exclusion pay and benefits to) exposed employees who are fully vaccinated and asymptomatic. (May 6, 2021) 
  • CDPH Issues Revised Quarantine Guidance: The California Department of Public Health (CDPH) issued revised guidance quarantine and physical distancing for fully vaccinated people on May 3, 2021.  CDPH issued this revised guidance in response to revised guidance issued by the U.S. Centers for Disease Control on April 27, 2021.  As a result of Section 7 of Governor Newsom’s Executive Order N-84-20 (Dec. 24, 2020) which revised the Cal/OSHA Emergency Temporary Standard in accordance with CDPH guidance, employers can immediately begin following CDPH guidance with respect to quarantine of vaccinated persons experience an exposure.  CDPH’s new guidance allows fully vaccinated persons to refrain from quarantining if they are asymptomatic following a known exposure and specifies that employers must continue to follow face-covering and testing requirements of the ETS. (May 4, 2021)
  • USDOL Announces Essential Workers, Essential Protections Initiative:  The U.S. Department of Labor's Wage & Hour Division announced its new initiative on April 30, 2021 to inform employees about their rights under the federal Fair Labor Standards Act (FLSA) and the federal Family and Medical Leave Act (FMLA).  California employers should be mindful of the fact that while California's worker protections are much more stringent than federal requirements, in some cases federal requirements also apply alongside California requirements.  This can be particularly confusing with respect to the intersection between FMLA and the California Family Rights Act (CFRA). (April 30, 2021)
  • CDC Updates Outdoor Masking Guidance:  The U.S. Centers for Disease Control (CDC) has released new masking guidance for fully vaccinated people (two weeks after receiving the second shot of the two-shot regimen, or two weeks after receiving the single-shot regimen.  According this guidance, fully vaccinated people can participate safely without masks in outdoor activities unless in a large group of strangers that could include a large number of unvaccinated people.  CDC guidance calls for unvaccinated people to mask in most instances.  Governor Newsom issued a press release saying, "we are moving to align California's guidance with these common-sense updates." Cal/OSHA has given no indication when (or if) it will revise its COVID-19 Emergency Temporary Standard (ETS) in accordance with these evolving guidelines. (April 27, 2021) 
  • Fed OSHA Issues Guidance on Recordabilty of Illness Resulting from Vaccine Reactions: The federal Occupational Health and Safety Administration has issued guidance that an employer need not record an adverse reaction to a COVID-19 vaccine on it’s injury and illness logs.  According to new FAQ responses, such a reaction may be recordable if it is work-related because the employer mandated the vaccine, and may even be recordable is the employer recommended the vaccine depending on the circumstances. (April 23, 2021)
  • Cal/OSHA Updates COVID-19 Emergency Temporary Standard Guidance: (From FELS' Group Legal Services Plan partner firm Barsamian & Moody): Cal/OSHA has updated its Emergency Temporary Standard (“ETS”) Frequently Asked Questions (“FAQs”) page to address two relevant issues: what employers may deduct when calculating “exclusion pay” in those limited situation where leave is paid, and where to find testing for employees.

    Of particular relevance, given the new federal stimulus payments to millions of California employees, the FAQs now address whether employers may estimate the value of future public benefits, such as a stimulus payment, and deduct that estimate from the amount owed to the employee for paid leave in those situations when leave is paid.  Not surprisingly, the answer is “No.”  Cal/OSHA stats that doing so would not meet its requirement to “continue and maintain” an employee’s wages and benefits during covered leave.  See FAQ 11 in the Exclusion Pay and Benefits section of the FAQs found here: https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html The Testing section of FAQs was updated to advise employers to contact their local health department or visit its website to determine the location of testing centers.  It also notes that in many cases, employees must answer questions about symptoms and exposure prior to testing, as well as give consent for the test.  Employers can also partner with a medical provider to establish an on-site testing program.  Remember, however testing is arranged, employers must ensure employees do not incur any costs for testing.  See FAQ 10 for additional information.  FAQ 11 informs employers of the State of California Valencia Branch Laboratory which can assist employers who need to test a large number of employees on a regular basis.  The rules of the ETS game continue to change.  It is critical to stay up to date on the most recent FAQs answered by Cal/OSHA to ensure continued compliance with the ETS. (March 12, 2021) 

    The Western Center for Agricultural Health & Safeyt is offering updated COVID-19 worksite resources for agricultural employers and employees; you access these resources  at Western Center's website.  Western Center is also offering employer training tools for COVID-19 workplace safety; you can access those resources here.  Note: Western Center's resources are offered in English and Spanish. (March 2021)
  • Cal/OSHA Issues More COVID-19-Related Citations: On February 4, 2021 and again on March 2, 2021, Cal/OSHA issued multiple citations for various COVID-19-related Injury and Illness Prevention plan, Respiratory Protection plan and other regulatory violations. These citations were announced after the introduction of Cal/OSHA COVID-19 Emergency Temporary Standard, but appear not to cite that standard. (March 2, 2021)
  • CDC Double-Masking Guidance: On February 13, 2021, the Centers for Disease Control (CDC) issued guidance to the effect that effectiveness of masking can be significantly improved by wearing a cloth mask over a medical procedure mask.  You can read the CDC report here.
  • Attorney General COVID-19 Letters: During the week of February 14, California employers began receiving letters from the Office of the Attorney General soliciting employers’ “COVID-19 related health and safety measures,” including the employer’s COVID-19 written prevention program and the employer’s leave policy regarding leaves available to employees with COVID-19.  The letter in some cases requests a response by March 3 but demands an immediate response if there is an ongoing outbreak at the employer’s facility or facilities.  While the letters cite to no specific statutory authority to compel the recipient’s response, lack of a response could trigger an investigation by the AG’s office.  Should you receive such a letter, whether and how to respond is a decision that should be undertaken in consultation with legal counsel.  FELS Newsletter subscribers have access to the FELS' Group Legal Services program, which includes a free hour of legal services from our partner firm Barsamian & Moody.  Please contact us at 800-753-9073 or This email address is being protected from spambots. You need JavaScript enabled to view it. for more information.
  • What Works, What Doesn't (Didn't):  The January 27 edition of The Wall Street Journal reports in New Playbook for Covid-19 Protection Emerges After Year of Study, Missteps reports, "Mask-wearing, worker pods and good air flow are much more important than surface cleaning, temperature checks and plexiglass barriers in places like offices and restaurants. And more public-health experts now advocate wide use of cheap, rapid tests to detect cases quickly, in part because many scientists now think more than 50% of infections are transmitted by people without symptoms."
  • Fauchi Endorses Double-Masking: CDC infectious diseases expert Dr. Anthony Fauci on January 25 endorsed the practice of "double-masking," saying is "likely does" help protect against recently-emerging mutant strains of COVID-19.  While there has been media coverage of double-masking, no regulatory agency has recommended or required it yet. 
  • Federal OSHA Issues COVID-19 Guidelines, Begins Work on a Federal Reg: On January 29, the federal Occupational Safety and Health Administration issued updated guidance to employers to better identify workplace hazards that could lead to COVID-19 workplace exposures.  The guidance was issued in response to President Biden's January 21 Executive Order directing OSHA to issue updated COVID-19 guidelines.  The fed OSHA guidelines include features that will be familiar to California employers working to implement both California's Injury and Illness Prevention program regulation (General Industry Safety Order 3203) and the COVID-19 Emergency Temporary Standard (GISO 3205, 3205.1, 3205.2, 3205.3 and 3205.4).  Generally, these include guidance for assessing and correcting COVID-19-related hazards, workplace hygiene, employee communication, recording and recordkeeping, and screening, testing and vaccinations (the OSHA guidelines direct employers to continue COVID-19 safety measures even as employees are receiving vaccinations).  The next step for OSHA is likely a federal emergency temporary standard.  It has been reported that OSHA is working on this with state agencies like Cal/OSHA and its counterparts in Virginia and Michigan in doing this.
  • Gov. Newsom Lifts Stay-at-Home Order: On January 25, Governor Gavin Newson announced the lifting of his December 3 stay-at-home order.  The Governor announced this action in light of declining COVID-19 positivity rates and projections that Intensive Care Unit availability will exceed 15% of capacity in the coming weeks.  For now, most of California remains in Purple Tier status, meaning that many non-essential indoor businesses remain closed.  
  • Cal/OSHA Consultation Presents COVID-19 webinars:  The Cal/OSHA Consultation Unit is presenting webinars on several dates in late January, February, and March 2021; these webinars are scheduled to be four hours in duration with questions and answers; they will be presented on the Zoom platform, so please consider downloading the free Zoom client and registering for a free Zoom account before logging on.  Webinars will be presented on the following dates; you may register at these links:  Jan. 28; Feb. 2; Feb. 11; Feb. 12; Feb. 17; Feb. 19; Feb. 23; Feb. 25; March 2; March 4; March 10; March 12; March 16; March 18; March 23; March 30.  You can visit Cal/OSHA Consultation Unit's webinars page for more information. 
  • UPDATE: Executive Order Revises ETS: On December 14, Governor Newsom signed Executive Order N-84-20 modifying return-to-work requirements under the COVID-19 Emergency Temporary Standard (ETS). Governor Newsom’s executive order reconciled the ETS’ return-to-work requirements with recently-issued guidance on ending quarantines from the California Department of Health.  Under the new guidelines, asymptomatic exposed employees may end quarantine and return to work may return to work 10 days after exposure whether they received a COVID-19 test or not.  Exposed symptomatic employees may end quarantine and return to work in less than 14 days if they consistently maintain non-pharmaceutical measures like face covering and social distancing for at least 14 days after exposure as long as symptoms have improved and do not return during that period.
  • UPDATE: CAL/OSHA Publishes Frequently Asked Questions on the COVID-19 Emergency Temporary Standard:  On January 8, Cal/OSHA published to its website more than 60 frequently asked questions offering some clarification of some of the thorniest questions arising from the ETS, but not others.  The FAQs:
    • Clarify the agency's view that employees may not be eligible for preservation of wages and benefits under the ETS an employee unable to work due to COVID-19 symptoms or unable to work for some other reason other than protecting employees from infection.
    • While the FAQ still offer no limitation on the length of time an employer may be obliged to maintain wages and benefits, it noted that employees who are unable to return to work after meeting return-to-work requirements set forth by the California Department of Public Health or 14 days after a "close exposure" of positive test may not be able and available to work and not eligible for wage and benefit preservation.  Such employees may be eligible to apply for state Disability Insurance benefits or workers' compensation if their illness is work related, but cannot receive those benefits and ETS wage and benefit preservation simultaneously. 
    • The FAQ also clarified that employers may "offer" or "provide" testing through any entity providing testing, including a county Public Health department so long as the employee incurs no cost in lost work time and wages, mileage or cost of public transportation -- employers must reimburse for these costs and an costs the employee my experience to get tested.  Employers need not document refusals by employees to be tested, but it may be wise to do so. 
    • Employers with vaccinated employees will need to continue to observe the requirements of the ETS for now, but the agency indicates an intent to revisit handling vaccinated employees at a later time. 
    • Useful clarification indicates that a particular workspace may not be an "exposed workplace " (triggering testing and tracing requirements under the ETS) if used for a later shift after an exposure, provided good ventilation and cleaning of the space after the shift where exposure occurred. 
  • AB 685 COVID-19 Notices and Cal/OSHA Enforcement: Governor Newsom recently signed Assembly Bill 685 (Reyes) which expands the reporting and notification requirements for employers and increases CAL/OSHA’s authority relating to COVID-19.  The new law establishes requirements for employers to notify employees and any relevant unions about potential exposure to COVID-19 in the workplace as well as to report a COVID-19 “outbreak” to local health authorities.  These new requirements are effective beginning on January 1, 2021 and are slated to continue through January 1, 2023.  In order to comply with these new requirements, employers will likely need to develop new policies and procedures. You can read more here.
  • Cal/OSHA COVID-19 Emergency Temporary Standard (ETS) Effective 11/30/20: On November 30, 2020 the Office of Administrative Law approved the COVID-19 Emergency Temporary Standard (ETS) requiring new employer protocols for employers to implement to protect employees against workplace spread of COVID-19 which had been approved by the Cal/OSHA Standards Board on November 19.  The OAL's truncated 10 day review of the ETS authorized by the Administrative Procedures Act means the ETS became effective upon completion of OAL's review when the ETS will be filed with the Secretary of State.  
    • Revised CDC Critical Infrastructure Worker Integration Guidance: On November 16, 2020, CDC released revised "COVID-19 Critical Insfrastructure Response Planning" guidance in response to the COVID-19 "November surge." In that revised guidance, CDC "clarified that reintegrating exposed critical infrastructure workers who are not experiencing any symptoms and have not tested positive back into onsite operations should be used as a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety."  This seems to limit the applicability of other guidance, like that issued in California's "COVID-19 Employer Playbook," which envisions flexibility for local health departments to allow essential infrastructure workers to return to work if they have tested negative and are asymptomatic prior to 14 days since the last known close contact with someone with COVID-19.
    • Revised CDPH Face Covering Guidance: On November 16, 2020, the California Department of Public Health (CDPH) issued revised guidance for the use of face coverings, essentially mandating use of face coverings at all times when outside the home except when alone on a vehicle or in the company of members of that person's own household; when working alone in an office or other room, when eating or drinking while maintaining six feet of distance, outdoors at greater than 6 feet distance, or if that person's job requires use of respiratory protection.  Face shields may not be used alone as a substitute for a face covering. 
    • NEW CDC Definition of COVID-19 "Close Contact:" On October 21, the U.S. Centers for Disease Control (CDC) published a revision of their definition of "close contact;" previously, CDC's guidance considered close contact to be any specific incident of contact with an infected person of 15 minutes or longer in duration.  In their new guidance, CDC now considers close contact to be a cumulative total of 15 minutes or more in a 24 hour period beginning two days prior to illness onset or two days before the infected person submitted to a test.  This will require employers to assess whether employees may have been exposed to an infected person for a cumulative total of 15 minutes or more in a 24 hour period even if no particular incident lasts for 15 minutes or more.  The result could be that many more employees may need to be isolated for having been exposed to close contact to an infected person than under CDC's prior guidance.  Employer OSHA defense firm Conn Maciel Carey has published this client alert with more details.  
    • Oregon COVID-19 OSHA Standard Coming: Oregon OSHA is pushing to adopt an emergency COVID-19 regulation by the late October or early November 2020, to be followed up with a permanent infectious disease regulation with a goal of a final permanent regulation by March 2021.  You can read more about this in Oregon OSHA Moves Forward with a COVID-19 Temporary Standard on Jackson Lewis’ OSHA Law Blog.  You can also find compliance resources for Oregon agricultural employers at this page on Oregon Farm Bureau’s website.  Cal/OSHA is following a similar path; Cal/OSHA Standards Board has directed its staff and Cal/OSHA staff to write a temporary COVID-19 standard for consideration at the Board’s November meeting.

  • Cal/OSHA has furnished  Safety and Health Guidance: COVID-19 Infection Prevention for Agricultural Employers and Employees (updated July 22, 2020) (Spanish) and their COVID-19 General Checklist for Agricultural Employers (Spanish) and COVID-19 Daily Checklist for Agricultural Employers (Spanish)FELS strongly encourages agricultural employers familiarize themselves with these guidance documents and implement to the extent practical in their operations.  
  • The National Milk Producers Federation has published Coronavirus (COVID-19) Prevention and Management Dairy Farmer Handbook (Spanish) to provide dairy producers with useful information on dealing with COVID-19 and preventing workplace hazards associated with it and Recommended Protocols for Dairy Farms When an Employee Tests Positive for COVID-19 along with an informational poster created by Alltech, What you Need to Know about Coronavirus (COVID-19) on Your Dairy (Spanish). 
  • Latest guidance from Cal/OSHA, Face Coverings, Masks & Respirators, asserts that employers are required to provide face coverings for employees' use or reimburse employees for reasonable costs of obtaining face coverings.  The Department of Industrial Relations (DIR) released this Media Advisory on July 16, Cal/OSHA Urges Employers to Follow the State’s Guidance on Protecting Workers from COVID-19advising employers that they will be conducting worksite enforcement of COVID-19 employee protections.
  • U.S. Centers for Disease Control (CDC) has released updated SARS-CoV-2 Testing Strategy: Considerations for Non-Healthcare Workplaces providing employers with advice as to when it might be appropriate to administer COVID-19 testing in an employment context for individuals who may have been exposed but are asymptomatic, determining when it may be safe to allow someone recuperating or who has tested positive but my not have experience illness, or even testing employees with no known exposure.
  • CDC has also substantially changed its guidance as to whether testing is required to permit an employee to discontinue home isolation, instead shifting to a symptom-based criteria allowing discontinuation after at least 24 hours have passed since the last fever without use of fever-reducing medication and allowing discontinuation of home isolation 10 days after a positive test for people who test positive but never suffer symptoms.
  • Cal/OSHA Publishes COVID-19 Employer Compliance Information: On December 1, Cal/OSHA published on it's website Frequently-Asked Questions (FAQ) about the COVID-19 Emergency Temporary Standard (ETS) described below and in Cal/OSHA's New Emergency Standard on COVID-19 Prevention on FELS webpage; the FAQ includes a model COVID-19 Prevention Policy as required by the ETS (though the agency says it will be acceptable to integrate your COVID-19 response plans into your IIPP); and a one-page summary of the ETS.  FELS urges employers to review the standard in depth, as it is complex and does not lend itself to summarization.  In the FAQ, the Agency indicates it will "...consider an employer’s good faith efforts in working towards compliance, but some aspects, such as eliminating hazards and implementing testing requirements during an outbreak, are essential."  The Agency also indicates it's intent to convene a stakeholders meeting in December to "... explain the rule, answer questions and give interested parties an opportunity to provide feedback on the rule."  Further, "an advisory committee meeting will be scheduled soon after that. The Occupational Safety and Health Standards Board (OSHSB) has formally requested that Cal/OSHA report the results of this advisory process to the Board within four months." 
  • UPDATE: the COVID-19 Employer Playbook issued by the California Department of Public Health (CDPH) on July 24 was updated on July 28 to require employers to contact the local health department in any jurisdiction where a COVID-19 employee resides when there is an outbreak in a workplace. An outbreak is defined as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.
  • The U.S. Centers for Disease Control (CDC) has broadened guidance on who may be at risk for severe illness due to COVID-19 because of age and underlying medical conditions.  According to the new guidance, risk increases with age (particularly after age 65) but younger people and people with underlying medical conditions can be at risk also.  Such conditions include common health conditions like pregnancy, obesity, Type 2 diabetes, and hypertension (high blood pressure).  The problem for employers posed by CDC’s new guidance is that many more people and their medical providers may now believe they are at greater COVID-19 risk that previously thought.  CDC generally recommend that people at higher rise limit social interaction and take preventative precautions.  Employers may see increasing requests for various types of paid and unpaid leaves and accommodations.  To the extent that employers may have either written or unwritten policies limiting leaves and accommodations to employees over age 65, those policies should be reconsidered.  In general, employers should always conduct individualized assessments of employees’ requests for reasonable accommodations, and those assessments should consider this new CDC guidance and recommendations from an employee’s health care provider.   
  • Terpstra Henderson has published a handy 12-page guideline covering COVID-19-related issues like confidentiality and discrimination, COVID-19 testing and working or teleworking, notices to provide to employees in the event of a COVID-19 case, operations if an infection or exposure occurs, return-to-work issues, worker health screening, reporting obligations, payment obligations, and CDPH recommendations for handing employees in various situations related to whether they been tested and tested positive or negative, are symptomatic or not, or have been exposed to someone who might be symptomatic or not or have been tested or not or tested posibive or not.  
  • The California Department of Public Health (CDPH) has published guidance for employers dealing with COVID-19 workplace outbreaks.  Among other recommendations, CDPH directs employers to be prepared for a possible workplace outbreak, be prepared to share information about employees and related matters with the local jurisdication health department, understand requirements for reporting work-related cases to Cal/OSHA, identification of any additional employee cases and close workplace contacts of those employees, notification and management of employees, and provides guidance to determine when an employee should return to work.  
  • Gov. Gavin Newsom, the California Manufacturers and Technology Association, Autodesk, and Intel have partnered to create "Safely Making California" to fill critical safety supply gaps for California employers. 
  • California Department of Public Health (CDPH) has issued broad new requirements for use of face masks virtually everywhere outside of the home.  You can read CDPH's description of the new face mask requirements here, and CDPH's updated guidance on use of masks here. In workplaces, the new rules require employees to wear face masks when they are in “high-risk situations” such as when:
    • Engaged in work, whether at the workplace or performing work off-site, when:
    • Interacting in-person with any member of the public;
    • Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time;
    • Working in any space where food is prepared or packaged for sale or distribution to others;
    • Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities;
    • In any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.
  • The federal Equal Employment Opportunity Commission (EEOC) has issued revised guidance (see question A.7.) to the effect employers may not require employees to submit a negative COVID-19 antibody test to determine whether the employee may return to work.  According to EEOC, this constitutes a medical examination under the Americans with Disabilities Act (ADA) that is impermissible because it is not "job related and consistent with business neccessity."  Virus tests used to detect current infection are permissible because in infected employee poses a direct threat to the health of all employees.
  • California Department of Food and Agriculture is providing biosecurity guidelines for agencies conducting the COVID-19 workplace safety push when they visit animal agriculture facilities.  Issued by state veterinarian Annette Jones, the guidance instructs California state employees who are likely to be unfamiliar with biosecurity issues how to avoid cross-contamination issues.  Operators of animal ag facilities should be aware that state employees conducting enforcement activities should be familiar with these guidelines.
  • Terpstra Henderson has published a handy 12-page guideline covering COVID-19-related issues like confidentiality and discrimination, COVID-19 testing and working or teleworking, notices to provide to employees in the event of a COVID-19 case, operations if an infection or exposure occurs, return-to-work issues, worker health screening, reporting obligations, payment obligations, and CDPH recommendations for handing employees in various situations related to whether they been tested and tested positive or negative, are symptomatic or not, or have been exposed to someone who might be symptomatic or not or have been tested or not or tested posibive or not. 
  • The California Department of Public Health (CDPH) has published guidance for employers dealing with COVID-19 workplace outbreaks.  Among other recommendations, CDPH directs employers to be prepared for a possible workplace outbreak, be prepared to share information about employees and related matters with the local jurisdication health department, understand requirements for reporting work-related cases to Cal/OSHA, identification of any additional employee cases and close workplace contacts of those employees, notification and management of employees, and provides guidance to determine when an employee should return to work.  
  • Gov. Gavin Newsom, the California Manufacturers and Technology Association, Autodesk, and Intel have partnered to create "Safely Making California" to fill critical safety supply gaps for California employers.  
  • California Department of Public Health (CDPH) has issued broad new requirements for use of face masks virtually everywhere outside of the home.  You can read CDPH's description of the new face mask requirements here, and CDPH's updated guidance on use of masks here. In workplaces, the new rules require employees to wear face masks when they are in “high-risk situations” such as when:
    • Engaged in work, whether at the workplace or performing work off-site, when:
    • Interacting in-person with any member of the public;
    • Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time;
    • Working in any space where food is prepared or packaged for sale or distribution to others;
    • Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities;
    • In any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.
  • The federal Equal Employment Opportunity Commission (EEOC) has issued revised guidance (see question A.7.) to the effect employers may not require employees to submit a negative COVID-19 antibody test to determine whether the employee may return to work.  According to EEOC, this constitutes a medical examination under the Americans with Disabilities Act (ADA) that is impermissible because it is not "job related and consistent with business neccessity."  Virus tests used to detect current infection are permissible because in infected employee poses a direct threat to the health of all employees.
  • Western Center for Agricultural Safety and Health, UC Davis: new resources for agricultural employes: Screening Workers to Prevent COVID-19 in the Workplace; What to do if an Employee Has COVID-19; Disinfection and Sanitation for COVID-19 at the Worksite; Personal Protective Equipment in the Time of COVID-19; Coronavirus/COVID-19 Agricultural Employer Training Guide
  • The federal Occupational Safety & Health Administration (OSHA) has issued guidance on use of face coverings in the workplace.  The agency reiterates it's view that such face coverings, whether cloth masks, bandanas, "surgical masks" (which may or may not have been cleared by the Food and Drug Administration for hospital use) are not personal protective equipment (PPE) and as such employers are not obliged to furnish, maintain, or pay for them.  A respirator issued by an employer as PPE must, or course, be used in compliance with respirator protection standards. 
  • The U.S. Centers for Disease Control (CDC) has issued guidance describing different testing strategy options for exposed employees when employers determine testing is needed to help support existing disease control measures. As part of the Guidance, CDC issued a decision tree to assist with determining optional testing strategies. CDC specifically notes that outbreaks of illness among workers in food-producing facilities and surrounding communities have raised “unique questions that identified the need for testing” to supplement existing CDC recommendations. 
  • CDC has created a 16-page "Agricultural Employer Checklist" for creation of a COVID-19 control plan.  According to CDC: "Farm owners and operators can prevent and slow the spread of COVID-19. Owners/operators should develop a COVID-19 assessment and control plan to protect themselves and farmworkers, in accordance with the CDC Interim Business Guidance for Businesses and Employees and General Business Frequently Asked Questions. State and local health departmentsexternal icon may also provide resources to aid in the development of these plans."
  • U.S. CDC and the U.S. Department of Labor have jointly issued Agriculture Workers and Employers: Interim Guidance from CDC and the U.S. Department of Labor, non-enforceable guidelines that largely track with guideance from Cal/OSHA, California Dept. of Public Health, and county public health officers on issues like maintaining social distancing and grouping workers throughout a workday to minimize opportunities for transmission.
  • Cal/OSHA has released new FAQ on how employers are expected to determine recordability (as a workplace illness or injury) and reportability of COVID-19 cases.  In those FAQ, the agency notes: "A work-related exposure in the work environment would include interaction with people known to be infected with SARS-CoV-2 (the virus that causes COVID-19); working in the same area where people known to have been carrying SARS-CoV-2 had been; or sharing tools, materials or vehicles with persons known to have been carrying SARS-CoV-2."
  • Cal/OSHA has issued a General Checklist (Spanish) (covering broad topics of concern to agricultural employers) and a Daily Checklist (Spanish) (designed to illuminate issues that will arise from day-to-day in the workplace) to their website.  At the same location, you'll find updated Interim General Guidelines on Protecting Workers from COVID-19; in the latest iteration of this guidance, the agency highlights, "...employers are required to determine if COVID-19 infection is a hazard in their workplace. If it is a workplace hazard, then employers must implement infection control measures, including applicable and relevant recommendations from the Centers for Disease Control and Prevention (CDC)...for most California workplaces, adopting changes to their IIPP is mandatory since COVID-19 is widespread in the community."  In particular, Cal/OSHA names CDC guidance documents, Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), and Coronavirus Disease 2019 (COVID-19): How to Protect Yourself & Others.
  • The California Department of Public Health and the California Department of Food and Agriculture have issued COVID-19 Industry Guidance: Agriculture and Livestock.  The Guidance includes recommendations and guidance on how to help prevent the spread of COVID-19.  You can see the CDFA/CDPH guidance at the CDFA website.
  • The California Office of Emergency Services (Cal/OES) State Operations Center has made available two-million surgical masks and 10,000 cloth masks for farmworkers and other agricultural employees, with the cloth masks intended specifically for migrant housing facilities. These are being shipped to County Ag Commissioners’ offices and will be made available according to local needs.  This is a one-time emergency shipment to fill the gap while the supply chain catches up with high-volume demand.  There continues to be a significant shortage of N95 masks for health care workers, first responders, and the various agricultural and industrial activities that require N95 masks.  You can read more at the Cal/OES website.
  • National Council for Agricultural Employers:  Farm employers have been working hard in these very uncertain times to protect their workers and themselves.  As guidance from the Centers for Disease Control (CDC) has shifted as scientists have learned new information regarding the transmissibility of the Coronavirus, farm employers have been early adopters of effective mitigation strategies.  We all recognize the critical nature of feeding our nation while protecting worker safety. Please consider taking this National Council of Agricultural Employers survey which should take just a few minutes to complete.  Your individual responses will remain confidential and discrete to NCAE.  Provided enough responses are received, the compiled responses will be used by NCAE leadership and management to respond to inquiries from media, government officials and others regarding the efforts being made to safeguard health.
  • California Department of Industrial Relations, Division of Occupational Safety & Health (Cal/OSHA): Safety & Health Guidance: COVID-19 Infection Prevention for Agricultural Employers and Employees (Now Available in Spanish):  Cal/OSHA has released guidance outlining workplace practices to protect employees.  The agency states the guidelines provide information for agricultural employers to update their Injury and Illness Prevention Programs (IIPPs), saying "most California workplaces must consider the disease a workplace hazard."  The guidance does not recommend agricultural employers provide respirators to employees, except to the extent they are available and are provided to protect workers from excessive dust, Valley Fever spores, and other workplace respiratory hazards.
  • The U.S. Food & Drug Administration (FDA) has published guidance helping employers to distinguish between respirators, face masks, and cloth face coverings, which has been a topic of some confusion in recent weeks as CDC began to suggest use of face masks or face coverings and a number of California counties have mandated use of face masks for face coverings in their respective counties.  You can view FDA guidance here: (Use of Respirators, Facemasks, and Cloth Face Coverings in the Food and Agriculture Sector During Coronavirus Disease (COVID-19) Pandemic). 
  • Several Bay Area counties have in the last week issued orders for use of face coverings (they do not mandate use of surgical masks or N95 respirators in recognition of the shortage of those items for healthcare providers) but some of them (including the order issued by the Sonoma County Health Officer) include this language: "Employers who continue to operate, pursuant to the Health Officer Order (C19-05) Extending the Shelter in Place Order issued on March 31, 2020, and who require their employees to leave their residence to work or provide a service shall ensure that their employees comply with this Order while on duty by either (1) supplying employees with facial coverings, or (2) ensuring that employees have access to facial coverings, or (3) ensuring that their employees are using their own facial coverings."  Employers should bear in mind that when an employer is compelled by a county ordinance to provide a face covering, that face covering may be Personal Protective Equipment (PPE) subject to requirements related to PPE, and to Labor Code 2802, even if not required by any OSHA regulation or by the employer's policies. 
  • Editable version of Appendix A Social Distancing Protocols mandated by several COVID-19 county public health orders (Spanish)
  • The Workers Compensation Insurance Rating Bureau (WCIRB) has filed a regulatory change with the California Insurance Commissioner to change workers' comp rules to exclude COVID-19 claims from an employer's experience rating and to exclude sums paid to workers who are not working (as with Families First Coronavirus Response Act (FFCRA)-mandated paid sick leave and paid family leave) from payroll reportable for workers' comp purposes.
  • California Department of Pesticide Regulation (CDPR), in apparent response to concerns expressed from farmers about PPE shortages hampering pesticide applications, DPR has released two new publications: N95 Alternatives for Pesticide Handling (Spanish) and Gloves for Pesticide Handling (Spanish)
  • The Western Center for Agricultural Health and Safety (WCAHS) has released Coronavirus/COVID-19 Agricultural Employer Training Guide (Spanish) and makes a variety of English and Spanish-language resources available, including: Agriculture and COVID-19 FAQs (Spanish) (WCAHS); Coronavirus/COVID-19 Agricultural Worksite Checklist (Spanish); and Symptoms of Coronavirus Disease 2019 (Spanish) (U.S. Centers for Disease Control)
  • U.S. Centers for Disease Control has released Implementing Safety Practices for Critical Instrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.  This guidance is aimed to assisting employers in return-to-work for agricultural workers (agriculture has been designated a critical infrastructure activity) who may have been exposed to someone with coronavirus.  The guidance describes a procedure employers can follow to return such individuals to work while minimizing infection risk to co-workers.  CDC has also released a good single-page summary, and "Do's and Don'ts for Essential Workers Who Have Been Exposed to COVID-19."
  • U.S. Occupational Safety and Health Administration: Enforcement Guidance for Use of Respiratory Protection Equipment Certified under Standards of Other Countries or Jurisdictions During the Coronavirus Disease 2019 (COVID-19) Pandemic: Federal OSHA releases new guidance intended to permit use of filtering facepiece respirators certified in other countries or jurisdictions, contingent on the employer maintaining a respirator protection program if one is in place, and on the employer assessing the availability, effectiveness and feasibility of engineering or administrative controls.  
  • U.S. Centers for Disease Control has released Implementing Safety Pracitices for Critical Instrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19.  This guidance is aimed to assisting employers in return-to-work for agricultural workers (agriculture has been designated a critical infrastructure activity) who may have been exposed to someone with coronavirus.  The guidance describes a procedure employers can follow to return such individuals to work while minimizing infection risk to co-workers. 
  • CDC: Recommendations for Cloth Face Coverings: CDC has released guidance recommending the use of face coverings to protect those who are not yet infected with COVID-19 from infected asymptomatic individuals who may be shedding virus.  CDC does not recommend face coverings as a means of protecting oneself from COVID-19 infection.  CDC's recommendations feature a video by U.S. Surgeon General Jerome Adams, "How to Make Your Own Face Covering." 
  • Safety/News reports on a study at the Pediatrics Department at Baylor College of Medicine indicating that elastomeric half-masks respirators (EHMRs) are practicable as replacements for N95 respirators in light of supply shortages on N95s in healthcare settings.  Presumably, EMHRs would be used with N95-specification disposable cartridges.
  • CDC: Recomended Guidance for Extended Use and Limited Re-Use of Filtering Facepiece Respirators in Healthcare Settings: ag employers have expressed concern about the availability of popular N95 filtering facepiece respirators commonly used in pesticide applications (including voluntary use during application of sulphur in grape vines) due to COVID-19 and heavy use of N95s in healthcare. While aimed at useage in healthcare settings, the CDC guidance indicates that extended useage of N95s may be acceptable.  Per CDC:  "To reduce the chances of decreased protection caused by a loss of respirator functionality, respiratory protection program managers should consult with the respirator manufacturer regarding the maximum number of donnings or uses they recommend for the N95 respirator model(s) used in that facility. If no manufacturer guidance is available, preliminary data suggests limiting the number of reuses to no more than five uses per device to ensure an adequate safety margin."
  • Monterey County Dept. of Public Health: ADVISORY FOR AGRICULTURAL WORKER PROTECTION DURING COVID-19 CRISIS ON THE CENTRAL COAST OF CALIFORNIA, 4/6/20 update
  • Farm Employers Labor Service (FELS): Safety Training for Agricultural Workers: CORONAVIRUS: Protect Yourself, Protect Your Family (English & Spanish)
  • Alameda, Contra Costa, Marin, San Francisco, San Mateo and Santa Clara counties and the City of Berkeley on March 31 revised their Shelter in place ordinances on March 31, including new public notice requirements enforceable April 2 through May 3.  We anticipate other counties may adopt similar requirements soon.  The amended orders require businesses still operating because they are essential businesses (as agricultural operations have been designated) to adopt more stringent social distancing requirements in new Shelter-in-Place protocols, post those protocols at or near the entrance of their place of business easily viewable to employees and the public, and provide a copy to each employee.   You can read Alameda County's revised order here.  Appendix A of the orders provide this sample protocol posting, and the above-mentioned orders include the following language: "For the purposes of this Order, all Essential Businesses must prepare and post by no later than 11:59 p.m. on April 2, 2020 a “Social Distancing Protocol” for each of their facilities in the County frequented by the public or employees." 
  • Society for Human Resource Management (SHRM): 2020 Coronavirus Best Practices - Spanish and English
  • UPDATED: U.S. Occupational Safety & Health Administration (OSHA): Guidance on Preparing Workplaces for COVID-19: note that federal OSHA has recently indicated that workplace COVID-19 infections are recordable (on OSHA-Cal/OSHA logs) though on-the-job influenza and common cold infections are not recordable (see OSHA: COVID-19 Standards).  OSHA recordkeeping regulations published in the Code of Federal Regulations (CFR) at 29 CFR Part 1904 generally specifies recordability requirements; COVID-19 can be recordable if a worker is infected as a result of performing their job duties, but employers must record such infections only if all the following conditions are met: (1) the case is confirmed COVID-19; (2) The case is work-related (see 29 CFR 1904.5); and (3) the case satisfies the general criteria to be recordable, i.e. it entails medical treatment other than first aid, days away from work and so forth (see 29 CFR 1904.7).
  • CDC: Resources for Businesses and Employers; includes interim guidance from CDC for employers

 

Wage & Hour, Leaves Issues: and UI/SDI/PFL

 

  • CDPH Issues Revised Quarantine Guidance: The California Department of Public Health (CDPH) issued revised guidance quarantine and physical distancing for fully vaccinated people on May 3, 2021.  CDPH issued this revised guidance in response to revised guidance issued by the U.S. Centers for Disease Control on April 27, 2021.  As a result of Section 7 of Governor Newsom’s Executive Order N-84-20 (Dec. 24, 2020) which revised the Cal/OSHA Emergency Temporary Standard in accordance with CDPH guidance, employers can immediately begin following CDPH guidance with respect to quarantine of vaccinated persons experience an exposure.  CDPH’s new guidance allows fully vaccinated persons to refrain from quarantining if they are asymptomatic following a known exposure and specifies that employers must continue to follow face-covering and testing requirements of the ETS. (May 4, 2021)
  • DIR Guidance: COVID Sick Pay Can Be Used for ETS Exclusion Pay: The Department of Industrial Relations (DIR) has updated its Frequently Asked Questions webpage to clarify that employers can require the use of COVID-19 paid sick leave established by SB 95 (see “Retroactive COVID-19 Paid Sick Leave,” below) prior to having to maintain wages for employees excluded as required under the Cal/OSHA Emergency Temporary Standard (ETS); the FAQ: “Can an employer require that an employee use 2021 COVID-19 Supplemental Paid Sick Leave then they have excluded an employee for workplace exposure to COVID-19? Yes. When an employee is excluded by an employer and entitled to exclusion pay (Exclusion Pay FAQ link), an employer may require use of 2021 COVID-19 Supplemental Paid Sick Leave before providing exclusion pay.” It’s worth noting that DIR’s guidance reflects a provision of SB 95 that specifies that an employer may require an employee eligible for Supplemental Paid Sick Leave to use that leave if that employee must be excluded due to COVID-19 exposure or illness before providing exclusion pay. DIR also clarified that SB 95 leave is available to parents who's children's day care or school is unavailable due to a possible COVID-19 case occuring after January 1, 2021; that supplemental paid sick leave is not available for an employee who lives with somone who is exposed, experience symptoms, or is diagnosed with COVID-19, but may use the leave if they are caring for a family member recommended by a doctor to stay home or has been quarantined due to COVID-19; that supplemental paid sick leave must be provided "immediately upon oral or written request of an eligible employee. (April 23, 2021)
  • Gov. Signs Limited Right-to-Recall Bill: On April 19, Governor Newsom signed SB 93, a right-to-recall bill similar to a bill (AB 3216, Kalra) he vetoed in 2020.  SB 93 was moved as an “early action” preliminary budget bill, reflecting a concerning habit of the California Legislature to make major policy changes on legislative vehicles intended to make “adjustments” to the state’s budget that do not move through the normal legislative processes including policy and fiscal committee consideration.   From being proposed as a right-to-recall bill by a “gut-and-amend” process on April 8 to final passage, eleven calendar days elapsed, hardly the stuff of “government in the sunshine.”  Those issues aside, much of the media coverage of SB 93 could leave listeners and readers with an erroneous impression: that SB 93 applies to all employers and all employees. This is not the case.  SB 93’s right-to-recall mandate is limited to employees of employers in the hospitality and building services industries (janitorial and maintenance), and requires those employers to recall employees laid off after January 1, 2020 due to the COVID-19 pandemic in order of seniority if those employees had been employed by that employer for six months in the prior year.  It requires employers to give recalled employees five business days to decide whether to exercise their recall rights and requires employers to create and maintain records to demonstrate compliance.  You can read a summary of SB 93 on the Littler firm’s Insight: “California Adopts State “Right to Recall” for Certain Industries.”  (April 20, 2021)
  • Governor Newsom Sets June 15 Re-opening Target: California Governor Gavin Newsom announced on April 6 that business and travel restrictions imposed on Californians and California businesses will be lifted on June 15, provided there is available COVID-19 vaccines for everyone age 16 and over the be vaccinated if they wish, and if rates of COVID-19 hospitalization remain manageable.  Mask mandates will continue in effect, as will whatever regulations local departments of public health choose to impose.  The Governor’s “reopening” order will have no impact on Cal/OSHA’s COVID-19 Emergency Temporary Standard – the ETS’s mandates for masking, social distancing, sanitation protocols, testing and exclusion from workplaces and exclusion pay for exposed and ill employees will continue (Cal/OSHA and the Standards Board have indicated the Board may entertain revisions of the ETS at the Board’s May meeting.) You can read Governor Newsom's press release on the re-opening plan here. (April 9, 2021) 
  • DIR Furnishes Side-by-Side Snapshot of Paid Leave Options and Supplemental Paid Sick Leave (SPSL) Eligibility Navigator: The California Department of Industrial Relations (DIR) has published this side-by-side comparison of various paid leave options available to California employees; California Family Rights Act/federal Family and Medical Leave Act unpaid leaves are not included. DIR has also published an on-line eligibility navigator in English and Spanish that can help both employers and employees sort out SPSL eligibility. (March 30, 2021)
  • Federal COVID-19 Leave Tax Credits:  The American Rescue Plan signed by President Biden on March 11 includes an extension and expansion of federal payroll tax credits for employers to defray the cost of COVID-19-related leaves.  Tax credits are available for the reasons originally provided for under the Families First Coronavirus Response Act (FFCRA) from March 2020, but adds leaves for employees who are awaiting a COVID-19 test result or COVID-19 medical diagnosis and to obtain a COVID-19 vaccine or recovering from any injury or illness arising out of receiving a vaccine.  Terpstra Henderson provides this very readable and understandable two-page summary of the major employment-related provisions of ARP, including information about the new law's requirement for employers to subsidize COBRA healthcare continuation costs for separated employees.  Boston-based law firm Bowditch has published this summary to their News+Insights:Voluntary FFCRA Leave Expanded and Extended Through September 2021Covington & Burling LLP's Tax Witholding & Reporting Blog recently posted American Rescue Plan Act Goes to Biden for Signature: Includes Changes to Employee Retention Tax Credit, Employer-Provided Dependent Care, Paid Leave Credits, and Deduction Limitations for Executive Compensation with more details on these federal payroll tax credits. (March 11, 2021). 
  • Retroactive COVID-19 Paid Sick Leave: Governor Newsom signed SB 95 (Skinner) into law on March 19; the new Supplemental Paid Sick Leave mandate becomes effective March 29, 2021.  The new mandate takes effect 10 days from enactment and requires any employer of 25 or more employees to furnish a bank of up to 80 hours of paid sick leave, pro-rated for part-time employees which, will be available until September 30, 2021.  The mandate is retroactive to January 1, 2021, meaning employers are may be liable for penalties for failing to provide leave they didn't now they had to provide between January 1 and the effective date of SB 95.  FELS Group Legal Service Program partner firm Barsamian & Moody has furnished this summary of the new COVID-19 paid sick leave mandate, as well as a follow-up article with more details.  SB 95 requires covered employers to post a notice to employees of their rights under SB 95; the Labor Commissioner's model notice can be found here (Spanish).  The Labor Commissioner's office has also furnished extensive Frequently-Asked Questions (FAQ) which you can access here.
  • Local Jurisdictions Extend Paid Sick Leave: Numerous local jurisdictions in California imposed COVID-19 paid sick leave mandates in 2020 for employers operating within their jurisdictions, and many of then are now extending those mandates until dates in 2021.  K&L Gates has published a comprehensive summary of local paid sick leave mandates at K&L Gates Hub: COVID-19: California Jurisdictions Extend or Reissue COVID-19 Emergency Paid Sick Leave. Ordinances for agricultural employers who may have operations within the boundaries of those jurisdictions. (March 2021)
  • California Farm Employment 2019 versus 2020: The Februrary 2021 edition of Rural Migration Blog offers analysis of the possible impact of COVID-19 on farm employment in the context of the impact of COVID-19.  You can read more here. (February 2021)
  • UPDATE: FFCRA Leave Mandate Expires 12/31: In March 2020, Congress passed and President Trump signed the Families First Coronavirus Response Act.  FFCRA included mandates for up to 80 hours of emergency Paid Sick Leave for employees of employers of 500 or fewer employees impacted by COVID-19 with tax credits to defray the cost to employers of that leave, as well as expanded Family and Medical Leave Act benefits for for employers caring for dependents impacted by COVID-19.  Governor Newsom in September signed AB 1867, which codified an earlier Executive Order closing "loopholes" in FFCRA requiring 80 hours of COVID-19 supplemental paid sick leave for California-based "food sector employers" (including agricultural employers) of 500 or more employees.  Both FFCRA and AB 1867 supplemental paid sick leave are set to expire on December 31, 2020 unless FFCRA is extended by Congress.  While no movement seems to be afoot in Washington to extend FFCRA leave and AB 1867 leave by extension, it is possible the newly-inaugurated President Biden may seek to "renew" FFCRA leave once he takes office.  And given Governor Newsom's prolific tendancy to issue executive orders, it is possible that he may issue an executive order to extend AB 1867-like leave to employers formerly covered by the expired FFCRA leave mandate.  Unless or until either of these things happens, employers will no longer be obliged to furnish FFCRA leaves after December 31.  Baker Hostettler has published "FFCRA and California's Supplemental Paid Sick Leave Expire December 31 -- What Employers Need to Know" with more analysis and information.The Internal Revenue Service (IRS) has issued guidance on reporting of wages paid to employees as required for emergency paid sick leave or family leave required by the Families First Coronavirus Response Act (FFCRA).  Those waged must be reported on an employee's Form W-2 for 2020, and must be distinguished as having been paid as emergency paid sick leave for the employee's own illness, emergency paid sick leave because the employee was caring for someone else who was ill, or expanded family leave because the employee was providing care for a child who's school or daycare was unavailable due to COVID-19.
    • AB 1867 Supplemental Paid Sick Leave: On September 9, 2020, California Governor Gavin Newsom signed AB 1867 into law creating two new Labor Code sections: 248 (food service workers) and 248.1(covered workers), and also amending Labor Code section 248.5 (enforcement procedures). The provisions are effective immediately, and require all private businesses with 500 or more employees nationwide (as well as certain health care providers and emergency responders) to provide their California employees with COVID-19 related supplemental paid sick leave no later than September 19, 2020.  FELS Group Legal Service Plan partner firm Barsamian & Moody provide analysis. FELS Newsletter subscribers can read more here.
    • DOL Issues Revised FFCRA Regs: In response to an early August ruling from a federal judge in a lawsuit brought by the state government of New York, the U.S. Department of Labor issued revised regulations implementing the Families First Coronavirus Response Act (FFCRA) emergency paid sick leave and expanded Family and Medical Leave Act (FMLA) leave.  That judge’s ruling found certain provisions of DOL’s April FFCRA regulations invalid because it unlawfully denied leave to certain employees and exceeded the statutory authority granted to the Secretary of Labor to implement FFCRA emergency paid sick leave and expanded Family and Medical Leave.  DOL's revised regulations essentially stand pat on it's original positions that leave can only be taken when work would otherwise be available and that intermittent leave can be taken only with the employers consent.  FELS Newsletter subscribers can read more here.
    • The Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations (DIR) has issued a letter to farm labor contractors (FLCs) licensed by the State of California reminding them of legal requirements to comply with various COVID-19-related state and federal paid sick leave mandates, Cal/OSHA and the California Department of Public Health (CDPH) and retaliation protections, and demanding information about their sick leave compliance within 10 days during a period of heavy workloads for FLCs. Be advised that Labor Commissioner Lilia Garcia-Brower's demand letter calls for recipients to certify compliance with paid sick leave requirements and to provide the names of "all growers with whom you contracted in 2020, currently contract, or plan to contract in the near future."  While FLC's seeking state licensure must already provide this information, this renewed demand may be an indication of interesting in joint employment enforcement.
    • Implementation and Compliance with Presidential Memorandum Deferring Employee Social Security Tax Withholding: FELS Group Legal Service Plan partner firm Barsamian & Moody has provided employer guidance for deferral of Social Security tax witholding permitted by President Trump's Aug. 8 Executive Order
  • U.S Department of Labor (USDOL) has issued updated Families First Coronavirus Response Act (FFCRA) GuidanceFFCRA paid sick leave and expanded FMLA requirements are cumulative for 2020. If an employee uses their 80 hours of paid sick leave, is subsequently furloughed, returns to work and a need arises for additional sick leave, the employee is not entitled to additional paid leave under the FFCRA. Similarly, if an employee used six weeks of expanded FMLA during the spring of 2020 and needs additional leave in the fall because a child’s school or daycare is closed, the employee is entitled only to the amount of leave remaining (i.e. six weeks), not a renewed amount.  Employers cannot extend an employee’s furlough because the employee may qualify for leave under the FFCRA. An employer that is recalling employees from furlough may not extend an employee’s furlough because that employee may need leave under the FFCRA. For example, if an employee being recalled from furlough has a child whose school or daycare is closed, the employer cannot extend the furlough to avoid providing the employee with paid FFCRA leave. Employers may require an employee to provide a negative COVID-19 test before returning from an FFCRA leave, provided that the requirement is uniformly applied, and not only applied to employees who take FFCRA leave. For example, an employee requests two weeks of paid leave under the FFCRA to care for a family member who tested positive for COVID-19. Upon conclusion of the employee’s two weeks of paid leave, the employer may require the employee to provide a negative COVID-19 test or telework for a period of time only if the employer requires all employees to provide a negative COVID-19 test following exposure to someone who tested positive for COVID-19. If the rule is uniformly applied, it complies with the law. If it is applied only to employees who take FFCRA leave, then the rule violates the law.
  • The U.S. Centers for Disease Control (CDC) has broadened guidance on who may be at risk for severe illness due to COVID-19 because of age and underlying medical conditions.  According to the new guidance, risk increases with age (particularly after age 65) but younger people and people with underlying medical conditions can be at risk also.  Such conditions include common health conditions like pregnancy, obesity, Type 2 diabetes, and hypertension (high blood pressure).  The problem for employers posed by CDC’s new guidance is that many more people and their medical providers may now believe they are at greater COVID-19 risk that previously thought.  CDC generally recommend that people at higher rise limit social interaction and take preventative precautions.  Employers may see increasing requests for various types of paid and unpaid leaves and accommodations.  To the extent that employers may have either written or unwritten policies limiting leaves and accommodations to employees over age 65, those policies should be reconsidered.  In general, employers should always conduct individualized assessments of employees’ requests for reasonable accommodations, and those assessments should consider this new CDC guidance and recommendations from an employee’s health care provider. 
  • The Division of Labor Standards Enforcement, Dept. of Industrial Relation (DLSE) has published required workplace postings describing Paid Sick Leave for employees of large employers instituted by an Executive Order issued by Gov. Gavin Newsom on April 16.  Gov. Newsom's EO requires large (more than 500 employees) agricultural employers and other employers in food-related businesses from agriculture to grocery retailing to provide two weeks of paid sick leave similar to paid sick leave employees of fewer than 500 employers were mandated to provide by the federal Families First Coronavirus Response Act (FFCRA); here's a summary from FELS Group Legal Services Program partner law firm Barsamian & Moody.  DLSE has also published Frequently-Asked-Questions (FAQ) available here.
  • Stacy Henderson of the Ripon-based law firm Terpstra Henderson has published a thorough summary of the Families First Coronavirus Response Act (FFCRA)-mandated emergency Family and Medical Leave and Paid sick leave, and a flow-chart to help you evaluate employee requests to access these leaves.
  • Internal Revenue Service: IRS has issued revised guidance has issued revised guidance (superceding prior guidance) concerning tax credits available to reimburse employers for the cost of providing FFCRA-mandated leaves.  FAQ #6 and #10 appear to conflict with accompanying summary material on the webpage; please be advised further clarication may be forthcoming.  FAQ#9 explains how to calcuate the cost for which you can claim a credit for health insurance benefits.
  • California Employment Development Department (EDD): information for employers and employees on filing for Unemployment Insurance Benefits: DE 1275A: A Guide to Employment and Benefit Services;  EDD 1326CD: Acceptable Documents for Identity Verification; DE 1101ID: DE 1101ID: Unemployment Insurance Application 
  • U.S. Department of Labor (DOL) has revised Frequently-Asked-Questions (FAQ) concerning Families First Coronavirus Response Act-mandated Paid Sick Leave and expanded Family and Medical Leave.  The new FAQs (Nos. 80-88) focus on when and how FFCRA-mandated leaves can be run concurrently with existing FMLA (note that DFEH has not issued any guidance with respect to the interaction of California Family Rights Act (CFRA) leave with regard to possible concurrence); calculating FFCRA Paid Sick Leave and expanded Family and Medical Leave for employees with irregular hours; and calculating the regular rate of pay for employees on FFCRA-mandated paid leaves. 
  • U.S. Dept. of Labor (DOL) releases final regulations governing FFCRA-mandated Expanded Family and Medical Leave and Paid Sick Leave and frequently-asked-questions (FAQs) concerning the new regulations and the underlying law, and FELS Group Legal Services Program partner firm Barsamian & Moody publishes an explainer on these developments, "DOL Releases FFCRA Regulations and More FAQs."  The final regulations and accompanying FAQ specify that "subject to a Federal, State, or local quarantine or isolation order" (the criteria to determine if an employee is eligible for FFCRA-required leaves) is an order that causes an employee to be unable to work even though the employer has work available for that worker.  The guidance also specifieis that an employee may take (and an employer can receive reibursement payroll tax credits for) only if, "but for being subject to the order," the employee would be able to work.  According to DOL, the key question is whether the employee would be able to work (or telework) but for being required to comply with an isolation or shelter order.  The regulatory guidance also offers helpful clarification about what records employers can demand (and must keep) from employees seeking FFCRA-required leaves.
  • U.S. DOL has released its latest round of guidance on leaves required by FFCRA; new guidance is also released by California Department of Fair Employment and Housing; analysis provided by FELS Group Legal Services partner law firm Barsamian & Moody.
  • U.S. DOL has released notice # WH 1422 employer workplace information poster on FFCRA leaves (Spanish) If you employ fewer than 500 employees and are covered by the FFCRA leaves requirements PRINT & POST IT AS SOON AS POSSIBLE ALONG WITH OTHER WORKPLACE POSTINGS. 
  • Seyfarth Shaw Wage & Hour Litigation Blog: If Your Remedy For Workplace Coronavirus Issues Affects Pay, Don’t Compound The Harm With A Wage Law Violation
  • California Dept. of Indus. Relations, Divison of Labor Standards Enforcement (DLSE): FAQ on Laws Enforced by the California Labor Commissioner's Office
  • EDD: Coronavirus 2019: information on availability of unemployment insurance, disability insurance and paid family leave

 

Discrimination & Employee Privacy Issues:

 

  • Employers Should Not Administer Workplace-Based Testing Without Securing Employee Consent: Another feature of CDC's January 29 workplace-based testing guidance is a recommendation that employers secure informed employee consent prior to administering testing employees.  An employee should be informed of the possible ramifications of a positive test, including issues related to leaves and compensation (both of which are closely prescribed by California law).  Shaw Rosenthal LLP recently published this blog post on the topic. 
  • EEOC has also issued additional guidance (see question H. Age) on dealing with employees over age 65; the guidance points out that EEOC enforces protections of the Age Discrimination in Employment Act (ADEA) protecting employees age 40 and older.  According to EEOC, ADEA prohibits an employer from involuntarily excluding an employee because that employee is 65 or older, even in light of guidance from the Centers for Disease Control (CDC) indicating that COVID-19 poses a greater threat to older employees.  EEOC notes that because older employees may have medical conditions affording them disability protection under the Americans with Disabilities Act (ADA), entitling them to accomodation for that disability.
  • The federal Equal Employment Opportunity Commission (EEOC) has issued revised guidance (see question A.7.) to the effect employers may not require employees to submit a negative COVID-19 antibody test to determine whether the employee may return to work.  According to EEOC, this constitutes a medical examination under the Americans with Disabilities Act (ADA) that is impermissible because it is not "job related and consistent with business neccessity."  Virus tests used to detect current infection are permissible because in infected employee poses a direct threat to the health of all employees.
  • EEOC has also issued additional guidance (see question H. Age) on dealing with employees over age 65; the guidance points out that EEOC enforces protections of the Age Discrimination in Employment Act (ADEA) protecting employees age 40 and older.  According to EEOC, ADEA prohibits an employer from involuntarily excluding an employee because that employee is 65 or older, even in light of guidance from the Centers for Disease Control (CDC) indicating that COVID-19 poses a greater threat to older employees.  EEOC notes that because older employees may have medical conditions affording them disability protection under the Americans with Disabilities Act (ADA), entitling them to accomodation for that disability.
  • EEOC has issued new guidance indicating that an employer may test an employee for COVID-19 before permitting the employee to enter the workplace without violating the Americans With Disabilities Act (ADA).  EEOC's reasoning is that the presence or absence of COVID-19 is job-related and consistent with business neccessity.  The California Department of Fair Employment and Housing (DFEH) has not yet issues similar guidance, but often follows EEOC's lead on these questions.  You can review EEOC's guidance at this link. 
  • U.S. EEOC: What You Should Know About the ADA, the Rehabilitation Act, and COVID-19
  • U.S. EEOC: Pandemic Preparedness in the Workplace and the Americans with Disabilities Act

 

Shelter-in-Place/Shelter-at-Home related issues:

 

 

 

  • The Cal/Savers Retirement Program oversight board voted on April 16 to delay the deadline for employers of 100 or more employees to register with the program from June 30 to September 30.  The Cal/Savers program will require employers to withold earnings from employees for a state-directed retirement savings program.  FELS parent, California Farm Bureau Federation (“CFBF”) is working with Nationwide Financial to support the CFBF’s creation of a new multiple employer retirement plan (“MEP”) that is available to all CFBF members with employees, even those that already sponsor a retirement plan. 
  • Varnum Attorneys-at-Law: COVID-19 (Coronavirus) Response: 401(k) Questions

 

 

  • The Department of Homeland Security and U.S. Immigration and Customs Enforcement (ICE) have issued a temporary policy to allow employers to accept expired List B documents when completing the Form I-9 beginning May 1. This policy recognizes the fact that many people are unable to renew their driver’s licenses or state ID cards at this time due to stay-at-home orders. While some states have extended the expiration of driver’s licenses and state identification cards, which are common List B documents, others have not (California has issued a blanket extension for drivers under age 70 until May 31).  List B documents that expire on or after March 1, 2020, and have not been extended by the state may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.  If an employee presents their driver’s license that expired on or after March 1 and it was not extended by the state, employers should record the documentation information in Section 2 under List B, as applicable; and enter the word “COVID-19” in the Additional Information field.  When the DHS ends this temporary policy, employers must require the employee to provide a valid unexpired document within 90 days. (The replacement for the expired document is preferred, but employees may choose to present a different document or documents to satisfy the I-9 requirements.) If the employee’s List B identity document expired on or after March 1, 2020, and the issuing authority has extended the document expiration date because of COVID-19, the document is acceptable as a List B document for Form I-9 (not as a receipt) during the extension timeframe specified by the issuing authority. In that case, the employer must enter the document’s expiration date in Section 2; and enter “COVID-19 EXT” in the Additional Information field. You can find more information at ICE's website.
  • U.S. Dept. of Labor Employment & Training Administration, Office of Foreign Labor CertificationCOVID-19 FAQ, Round 3
  • Information from American Farm Bureau Federation indicates the employers will not be able to use Paycheck Protection Program (PPP) loans provided through the CARES Act because allowable "payroll" excludes foreign national employees.
  • USDOL ETA OFLC: COVID-19 FAQ, Round 2
  • CJ Lake, LLC: FAQs for H-2A
  • USDOL ETA OFLC: COVID-19 Frequently-Asked Questions

 

From FELS Group Legal Services Program partner law firm Barsamian & Moody: 

 

 

COVID-19 General Information:

 

Thousands of cases of the coronavirus (COVID-19) have been detected in at least 47 countries, including the United States. What should you do do now to be ready should COVID-19 cause disruption of your workforce? There is no one-size-fits-all answer; but you should start now to consider how to handle the problems that may arise as a result of COVID-19 whether it reaches true epidemic status or if it continues to be a public health issue that causes nervousness among your workforce.

How does Coronavirus spread?  Coronavirus generally spreads between people within 6 feet of each other through respiratory secretions, especially coughing and sneezing. It is not currently known whether the virus can be transmitted by touching a surface with the virus on it.

What can you do now?  It is important for farm employers to maintain open lines of communication with their employees. Update contact information for employees if necessary and stay informed of the latest news. The Centers for Disease Control and Prevention (CDC) has also issued “Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease.” The CDC recommends that employers begin implementing the following steps now:

  • Encourage employees with acute respiratory illnesses to stay home; be sure employees are aware of the availability of Paid Sick Leave as required by AB 1522 (2015) (see also FELS’ Fact Sheet: AB 1522 Paid Sick Leave Mandate) and job-protected leave under the California Family Rights and the federal Family and Medical Leave Act  (also see and that you are prepared to administer these leaves.
  • Keep in mind that more employees than normal may be unavailable to work because they are caring for other family members who are ill and try to plan for replacements if possible;
  • Make sure vendors and contractors whose employees come into your workplace are aware of issues surrounding COVID-19;
  • Separate sick employees if they begin to show symptoms;
  •  Emphasize cough and sneeze etiquette (covering coughs and sneezes) and hand hygiene (frequent handwashing for at least 20 seconds);
  •  Perform routine environmental cleaning, like wiping down surfaces, door knobs and handles, control handles and control panels, keyboards and mouses, light switches, and other surfaces frequently touched by employees;
  •  Advise employees like buyers and salespersons about the risks prior to travel to countries that have had a significant outbreak;
  •  Consider informing employees in the case of possible exposure in the workplace; maintain the confidentiality of the identity of any employee you know to be infected.

 

What plans should employers put in place?  The CDC also recommends that employers create response plans now in case an outbreak does occur in the United States. Employers should create response plans that would:

  • Reduce transmission among your workforce; 
  • Protect people at higher risk for adverse health complications;
  •  Maintain business operations; and,
  •  Minimize adverse effects on other entities in their supply chains.

 

Can you allow short-term telecommuting for some positions? Can you permit employees to work flexible schedules? Can you cancel some or all business travel? Have fewer in-person meetings? There is no single answer to these questions for every farm business.

Can employers require employees to undergo medical examinations?  The Equal Employment Opportunity Commission has recently released guidance, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” reminding that employers may not require medical examinations under the ADA unless the medical exam is job-related and consistent with business necessity. Whether a medical exam is job-related and consistent with business necessity depends upon the situation (e.g., what are the employee’s symptoms, where has the employee been, or how might the employee been exposed, etc.) and the latest CDC guidance on coronavirus.

What actions can employers take in the case of a pandemic?  If COVID-19 expands to epidemic or pandemic status, employers can send employees home if they show coronavirus-like symptoms at work. Furthermore, employers may ask employees if they are experiencing coronavirus-like symptoms as long as they are mindful of confidentiality obligations. Finally, if an employee returns from traveling during a pandemic, an employer may ask the employee whether they are returning from a location where that individual may have been exposed to the virus.

Obviously, this is an evolving issue. Employers who plan for it will be in a better position to deal with it if it becomes a crisis in the United States.

 

COVID-19 Major Milestones:

  • March 19: Gov. Newsom issued an executive order imposing a state-wide "stay-at-home" mandate to mitigate the spread of COVID-19.  This unprecedented order applies to the entire state, including counties that had not yet issued "shelter-in-place" or "stay-at-home" orders.  Gov. Newsom's order cites "federal critical infrastructure" sectors neccessary to continuity of operations, exempting workers in those sectors from the "stay-at-home" order.  The production of food is one of the exempted sectors (See U.S. Department of Homeland Security Critical Security Infrastructure Administration's "Critical Infrastructure Sectors: Food and Agriculture"); workers involved in food production are specifically exempted from Gov. Newsom's order.
  • The State of California has consolidated resources on COVID-19 response at a single website with links to various agencies includng the Department of Public Health, the Employment Development Department, and the Franchise Tax Board: Coronivirus (COVID-19) in California.  
  • Four additional counties (Lake, Mendocino, Napa and Yolo, and the City of Fresno) have issued shelter-in-place orders; Sutter County and Yolo County issued a joint shelter-at-home directiveSolano County issued an order limiting all gatherings if 6-foot distancing cannot be maintained.  Orange County amended it's previous order allowing businesses to continue operating without social distancing.
  • President Trump has signed the Families First Coronavirus Response Act (H.R. 6201), requiring employers of 500 or fewer to provide family and medical leave and paid sick leave, as well as providing tax credits to defray the cost of these mandates; you can read more here.
  • March 18: Updated ICE Statement on COVID-19: "To ensure the welfare and safety of the general public as well as officers and agents in light of th eongoing COVID-19 pandemic response, U.s. Immigration and Customs Enforcement (ICE) will temporarily adjust its enforcement posture beginning today, March 18, 2020.  ICE's highest priorities are to promote life saving and public safety activities.  ICE Enforcement and Removal Operations (ERO) will focus enforcement on public safety risks and individuals subject to mandatory detention based on criminal grounds." 
  • Sonoma, San Benito, and Monterey Counties have issued shelter-in-place orders.
  • Six Bay Area counties (San Francisco, Santa Clara, San Mateo, Contra Costa and Alameda, along with the City of Berkeley) adopted Shelter-In-Place orders  effective March 17; food production exempted; see "Order of the Health Officer of the County of Santa Clara" (the Bay Area County orders appear to be patterned after each other) in particular Section 10.f.ii and iii exempting grocery stores, farmers markets and farm stands and farming and livestock production.  On March 18, Santa Cruz County and inland counties like Fresno and Sacramento also adopted partial shelter-in-place orders, with uncertain impacts on food-related businesses. 
  • March 15: Gov. Newsom directed about 5 million Californians over the age of 65 to self-isolate to reduce their risk of COVID-19 exposure.

 

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