On April 21, 2022, the California Division of Occupational Safety and Health’s (Cal/OSHA) Standards Board approved the Third Readoption of the state’s COVID-19 Prevention Emergency Temporary Standard (ETS). Per Governor Gavin Newsom’s Executive Order N-23-21, the Third Readoption will remain in effect for no longer than December 31, 2022. The Third Readoption makes some additional material changes and clarifications, including acceptable return-to-work criteria, elimination of certain cleaning and social distancing requirements, and creation of a “returned case” category of workers recovered from COVID-19. Employers in California should update their COVID-19 ETS policies to ensure continued compliance with Cal/OSHA’s changes in the Third Readoption.
As employers navigate evolving COVID-19 state and federal rules, workplaces will have to stay vigilant about changes throughout the second half of 2021. These include changes to mask mandates, the Occupational Safety and Health Administration’s Emergency Temporary Standard and the New York Health and Essential Rights (HERO) Act.
Recent US Equal Employment Opportunity Commission guidance, for example, confirmed what employment lawyers had already been counseling businesses to do, according to McDermott partner Carole A. Spink in a recent Law360 article.
“The guidance was important because it did clarify that employers can provide incentives for voluntary programs. [There] was a big open question about, ‘Am I going to get into trouble because I’m trying to incentivize people to be vaccinated?'”
Last year ended as an unprecedented and historic year, with far-reaching effects across diversity, equity and inclusion, employment practices and workplace standards. In a recent article for International Law Office, partners from McDermott’s Employment group highlight what changes are expected in 2021 and how these may affect employers and employees.
California’s Division of Occupational Safety and Health (Cal/OSHA) adopted emergency temporary standards on COVID-19 prevention in the workforce, effective as of November 30, 2020, following approval by the Office of Administrative Law. These temporary standards require most Californian employers to implement a written COVID-19 prevention program meeting certain criteria. While many employers have already followed Cal/OSHA guidance to minimize employees’ exposure to COVID-19, the new requirements warrant an immediate review of current policies to ensure compliance. For any companies that have not yet created a written plan, the rules require implementation of a written policy.
Writing for International Law Office, McDermott partners Ellen Bronchetti and Michelle Strowhiro break down the details of Cal/OSHA’s new standards.
On September 17, 2020, California Governor Gavin Newsom signed SB 1159 into law, which is effective immediately for all employers. Among other things, the law creates a “disputable presumption” under workers’ compensation statutes for certain employees with confirmed cases of COVID-19 and establishes reporting requirements on confirmed cases and number of employees.
California’s AB 685, signed by Governor Gavin Newsom last week, does two things: (1) it creates an enforceable statewide standard for how employers handle potential exposure to COVID-19 and outbreaks of COVID-19 in the workplace; and (2) it expands the power of California’s Division of Occupational Safety and Health (Cal/OSHA) to enforce this standard and to take action to protect employees, including shutting down worksites deemed to be an “imminent hazard” due to COVID-19 risk.
The following Frequently Asked Questions are provided to guide employers through the details regarding how the new law will require employers to handle a potential exposure scenario, and to explain the new authority of Cal/OSHA’s enforcement powers.