At the end of April, the Cal/OSHA Standards Board voted to approve the Third Readoption of the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS). The revised version of the ETS took effect on May 6, 2022.

As promised when passed, Cal/OSHA has released updated guidance to assist with this version of the ETS that expires January 1, 2023.

Cal/OSHA posted an update to the Revisions to the ETS FAQ. This FAQ details the changes in the May 6th version of the ETS and requirements from prior ETS that remain. There is a separate General COVID-19 ETS FAQ that responds more to the application of the ETS and has been updated to conform to the recent changes in the ETS.

The Cal/OSHA Isolation and Quarantine Fact Sheet has also been updated to reflect changes in the revised ETS. The Fact Sheet includes an easy reference table that explains when employees must be excluded from the workplace, depending on whether they test positive for COVID-19 or have close contact with positive cases.

Finally, the Cal/OSHA Fact Sheet on “What Employers Need to Know” has been updated for the amendments to the ETS that went into effect May 6th. The following is a summary:

  • Face Coverings – Face covering requirements are the same for all employees regardless of vaccination status and are no longer required in all indoor locations. The guidance now also defers to California Department of Public Health (CDPH) masking requirements.
  • Respirators – Employers must provide respirators to employees who request them for voluntary use regardless of vaccination status.
  • Cleaning and Disinfecting – The ETS no longer includes any cleaning and disinfecting requirements.
  • Testing and Exclusion
    • Employers are now required to make COVID-19 testing available at no cost and during paid time to employees with COVID-19 symptoms regardless of vaccination status and regardless of whether there is a known exposure. COVID-19 testing must also be made available to employees who had a close contact in the workplace, during outbreaks, and during major outbreaks.
    • The detailed prescriptive requirements for exclusion of employees after close contact have been deleted. Instead, employers must review CPDH guidelines for individuals who had close contact and implement quarantine and other measures in the workplace to prevent COVID-19 transmission in the workplace.
    • The requirements for employees who test positive for COVID-19 have been updated to reflect the most recent CDPH isolation and quarantine guidelines. Regardless of vaccination status, positive employees can return to work after 5 days if the employee has a negative test, symptoms are improving, and they wear a face covering at work for an additional 5 days. Otherwise, most employees can return after 10 days.
  • Definitions
    • “Close contact” and “infectious period” are now defined so that their meaning will change if CDPH changes its definition of the term in a regulation or order. This will allow more flexibility and consistency with CDPH.
    • “COVID-19 test” was simplified to make it easier to use self-administered and self-read tests. A video or observation of the entire test process is no longer necessary; just a date/timestamped photo of the test result will now be sufficient.
    • “Fully vaccinated” was deleted as this term is no longer used in the regulations. All protections now apply regardless of vaccination status and requirements do not vary based on an employee’s vaccination status.

If you have questions about the Cal/OSHA ETS or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

There are further updates from the CDC for all air travelers.

Now, most travelers will have to show  a negative COVID-19 test or documentation of recovery from COVID-19 and contact information to board an airplane for the United States. As before, U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and those entering the United States on immigrant visas do not need to be fully vaccinated. Other non-U.S. citizens, including those entering on temporary visas (with limited exceptions), must show proof that they are fully vaccinated. A booster dose is not required to meet this requirement.

In addition, while no longer required, CDC continues to recommend that people wear masks in indoor public transportation settings.

What to Do After Arrival

Non-U.S. citizens, including those entering on temporary visas who are not fully vaccinated, but allowed to travel to the United States by air based on an exception, may be required to attest to some or all the following:

  • Get tested within 3-5 days after arrival absent documentation of having recovered from COVID-19 in the past 90 days;
  • Stay at home or in your hotel room and self-quarantine for a full 7 days, even if test is negative, absent documentation of having recovered from COVID-19 in the past 90 days;
  • Isolate if test result is positive or symptoms develop; and
  • Those intending to stay in the United States for 60 days or longer should become fully vaccinated within 60 days of arrival, or as soon as medically appropriate.
  • Follow all state, tribal, local, and territorial recommendations or requirements.

U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and those entering the United States on immigrant visas as well as non-U.S. citizens, including those entering on temporary visas who are fully vaccinated but not up to date with vaccines, i.e., not up to date on boosters, CDC recommends:

  • Stay home and self-quarantine for a full 5 days after travel absent documentation of having recovered from COVID-19 in the past 90 days;
  • Get a viral test 3-5 days after arrival absent documentation of having recovered from COVID-19 in the past 90 days;
  • Self-monitor for symptoms and isolate and get tested if symptoms develop; and
  • Follow all state, tribal, local, and territorial recommendations or requirements.

Individuals who recently recovered from COVID-19 (within the past 90 days), regardless of vaccination status:

  • No need to test within 3-5 days after arrival;
  • No need to self-quarantine after arrival;
  • If symptoms develop after arrival, isolate immediately and get tested;
  • Continue to isolate until test results are available; and
  • Wear a well-fitting mask around others.

All other travelers:

  • Get a viral test 3-5 days after arrival;
  • Self-monitor for symptoms and isolate and get tested if symptoms develop; and
  • Follow all state, tribal, local, and territorial recommendation or requirements.

COVID-19 travel requirements and recommendations can change at any time due to changing circumstances. It is important to check the CDC websites for guidance prior to travel.

On April 14, 2022, the Centers for Disease Control (CDC) updated its post-arrival recommendations.

Almost everyone (unless specifically exempted) who is at least 2 years old must have a negative COVID-19 test (tests include an antigen test or a nucleic acid amplification test) to board an airplane for the United States. Travelers fall into two broad categories: 1) U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and immigrants, and 2) non-U.S. citizen and non-U.S. immigrant entering on temporary visas.

After Arrival in United States

After arrival, CDC recommends all travelers, including U.S. citizens, legal permanent residents, nonimmigrant foreign nationals, and any individuals who are fully vaccinated but are not up to date on vaccinations (i.e., not boosted) should:

  • Get a COVID-19 viral test 3-5 days after travel.
  • Self-monitor and quarantine, then isolate if the COVID-19 test is positive or if symptoms develop.
  • If the traveler recovered from a documented COVID-19 infection within the past 90 days (regardless of vaccination status), then COVID-19 viral testing or self-quarantine is not required unless symptoms develop.

Vaccination Requirement

Those in group 1 (U.S. citizens, U.S. nationals, U.S. lawful permanent residents, and immigrants) need not show proof of being fully vaccinated against COVID-19 before traveling to the United States by air, but those in group 2 (non-U.S. citizen and non-U.S. immigrant entering on temporary visas) do. However, the following members in group 2 can be excepted from the fully vaccinated requirement:

  • Diplomats
  • Children under 18 years of age
  • Individuals with documented medical contraindications for vaccination
  • Participants in certain COVID-19 vaccine trials
  • Documented humanitarian or emergency exceptions
  • Individuals with valid nonimmigrant visas (other than B visas) who are citizens of countries with limited COVID-19 vaccine availability
  • Member of the U.S. Armed Forces and their spouses and children under 18
  • Crew members with C or D visas
  • Individuals whose entry into the United States is in the national interest

Non-citizens who have been excepted from the fully vaccinated requirement may have to attest to some or all the following upon arrival:

  • Take a viral test 3-5 days after arrival, unless within 90 days of recovering from COVID-19.
  • Stay home or in a hotel room and self-quarantine for 5 days even if the viral test is negative, unless within 90 days of recovering from COVID-19.
  • Isolate if the viral test is positive or if symptoms develop during the 5 days.
  • If planning to remain in the United State for at least 60 days, the individual must become fully vaccinated within 60 days of arrival unless vaccination is not medically appropriate.

To receive an exception, an individual must provide an attestation to show their eligibility for such an exception.

Jackson Lewis attorneys are available to assist you with any questions regarding travel eligibility.

I-9 flexibility is extended until October 31, 2022, due to continuing COVID-19 precautions.

The Department of Homeland Security (DHS) guidance remains the same and preparing for the possible end of the flexibility is still advised. Indeed, DHS stated, “[E]mployers are encouraged to begin, at their discretion, the in-person verification of identity and employment eligibility for employees who were hired on or after March 20, 2020, and who presented such documents for remote inspection in reliance on the flexibilities first announced in March 2020.”

Jackson Lewis attorneys are available to assist you with any questions regarding I-9 flexibility, E-Verify, employment authorization verification policies and procedures, and establishing processes to prepare for the possible end of flexibility.

On April 21, 2022, Cal/OSHA’s Standards Board voted to approve the Third Readoption of the Cal/OSHA COVID-19 Emergency Temporary Standard (ETS).

The third adoption makes some changes to the ETS previously in effect. Some of the more significant changes include:

  • Elimination of the requirement that face coverings pass the “light test” (does not let light pass through when held up to a light source).
  • Removal of cleaning and disinfection requirements.
  • Addition of a new term, “returned case,” which means an individual who returns to work after testing positive for COVID-19 and did not develop any COVID-19 symptoms after a return.
  • Employers are not required to make COVID-19 testing available to returned cases.
  • Removal of some of the cleaning and disinfection requirements previously required.
  • Deferment to California Department of Public Health guidance for exclusion and return to work criteria.

The amended ETS will take effect on May 6, 2022. Per the Governor’s prior Executive Order this version of the ETS will remain in effect until December 31, 2022.

Cal/OSHA intends to post new Frequently Asked Questions to support the revised ETS shortly.

If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

When a district court judge in Florida lifted the Centers for Disease Control and Prevention (CDC) federal COVID-19 mask mandate on April 19, 2022, the Transportation Safety Administration stopped enforcing it. However, the judge’s ruling left it up to airlines and local transit agencies to decide how to respond.

Many airlines immediately lifted the mandate – making masking optional, but the same cannot be said for local transit authorities. There is a patchwork of regulations with masks still required at certain airports, bus terminals, subway stations, and ferries. If traveling, even those who are opposed to masking should probably keep a mask on hand.

About a week before the ruling, on April 13, 2022, the CDC had extended the federal mask mandate until May 3, 2022, due to the surge in the COVID-19 Omicron BA.2 variant. The purpose was to have additional time “to assess the potential impact the rise of cases has on severe disease, including hospitalizations and deaths, and health care system capacity ….”

The Department of Justice (DOJ) has decided to appeal the judge’s ruling to preserve the mask mandate and, according to White House press secretary Jen Psaki, “to ensure the CDC’s authority and ability to put in mandates in the future remains intact.” Although the appeal has been filed, the DOJ has yet to request an injunction. The Florida ruling remains in effect for now.

In the meantime, the Biden Administration continues to urge Americans to wear masks on public transportation based upon current CDC guidance.

Though California has mostly lifted COVID-19 requirements statewide, the Cal/OSHA Standards Board is not planning to let the COVID-19 Emergency Temporary Standard (ETS) expire. Per Governor Newsom’s executive order, the expiration of the second readoption of the ETS was extended to May 6, 2022, but the Cal/OSHA’s Standards Board has posted a notice that it plans to readopt a third version of the ETS at its upcoming meeting on April 21, 2022.

The proposed third adoption makes some changes to the ETS previously in effect. Some of the more significant changes include:

  • Elimination of the requirement that face coverings pass the “light test” (e., does not let light pass through when held up to a light source).
  • Addition of a new term, “returned case,” which means an individual who returns to work after testing positive for COVID-19 and did not develop any COVID-19 symptoms after a return.
  • Employers are not required to make COVID-19 testing available to returned cases.
  • Removal of some of the cleaning and disinfection requirements previously required.
  • Deferment to California Department of Public Health guidance for exclusion and return to work criteria.

If passed, the third readoption would be the final version of the ETS and per the Governor’s Executive Order may not remain in effect beyond December 31, 2022.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

OSHA has just announced it is partially reopening the record on the rulemaking for the permanent healthcare COVID-19 standard known as the rule on Occupational Exposure to COVID-19 in Healthcare Settings. Comments are due by April 22, 2022. The docket number is OSHA-2020-0004. Following the written comments, there will also be a hearing held online on April 27, 2022. Individuals interested in testifying must submit their notice of intention to appear no later than 14 days after publication in the Federal Register, which will occur on March 23, 2022.

OSHA is soliciting information and feedback on these issues:

1. Alignment with the CDC’s recommendations for healthcare infection control procedures.
2. Additional flexibility for employers.
3. Removal of scope exemptions.
4. Tailoring controls to address interactions with people with suspected or confirmed COVID-19.
5. Employer support for employees who wish to be vaccinated.
6. Limited coverage of construction activities in healthcare settings.
7. COVID-19 recordkeeping and reporting provisions.
8. Triggering requirements based on community transmission levels.
9. The potential evolution of SARS-CoV-2 into a second novel strain.
10. The health effects and risk of COVID-19 since the ETS was issued.

OSHA cautions employers that until there is a permanent standard, healthcare employers should still comply with the terms of the healthcare ETS and is currently in the midst of a 3-month blitz of follow-up inspections in the healthcare industry. Employers who are following the healthcare COVID-19 ETS will have a safe harbor from citations under the general duty clause, respirator and recordkeeping standards.

If you have questions or need assistance with drafting and submitting comments for the healthcare COVID-19 rulemaking or need assistance with any other OSHA matters, please reach out to the Jackson Lewis attorney with whom you regularly work or any member of our Workplace Safety and Health Practice Group.

On March 10, 2022, Philadelphia Mayor Jim Kenney signed a new ordinance expanding COVID-19 Supplemental Paid Sick Leave (SPSL) until 2023.

The following are answers that employers need to their questions regarding the latest edition of Philadelphia’s SPSL.

When does SPSL become effective?

SPSL became effective on March 9, 2022.

How long will SPSL be in effect?

SPSL requirements will remain in effect until December 31, 2023.

Which employers are covered?

Employers with more than 25 employees must provide leave under the latest edition of SPSL.

Which employees are covered?

An employee of a covered employer who is unable to work because of covered reasons.  There is no length of service requirement.

What are the covered reasons for using SPSL?

The following are covered reasons for using SPSL:

  1. The covered employee is unable to work due to a determination by a public official or public health authority having jurisdiction, a health care provider, or an employer that the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19 or because the employee is exhibiting symptoms that might jeopardize the health of others, regardless of whether the employee has been diagnosed with or has tested positive for COVID19.

 

  1. The covered employee must care for a family member due to a determination by a public official or health authority having jurisdiction, a health care provider, or the family member’s employer that the presence of the family member on the job or in the community would jeopardize the health of others because of the family member’s exposure to COVID-19 or a determination by the employer that the employee is a danger to the health of others because they are exhibiting symptoms that might jeopardize the health of others, regardless of whether the family member has been diagnosed or having tested positive with COVID-19.

 

  1. The covered employee must care for themselves or a family member self-isolating due to having tested positive or diagnosed with COVID-19.

 

  1. The covered employee must care for themselves or a family member self-isolating due to experiencing symptoms of COVID-19.

 

  1. The covered employee needs medical diagnosis, care, or treatment due to experiencing symptoms of an illness related to COVID-19.

 

  1. The covered employee must care for a family member who needs medical diagnosis, care, or treatment due to experiencing symptoms of an illness related to COVID-19.

 

  1. The covered employee is caring for a child, whose school or place of care has been closed, or the childcare provider of such child is unavailable, due to precautions taken in response to COVID-19.

 

  1. The covered employee is receiving a COVID-19 test, vaccine or recovering from injury, disability or illness related to vaccination.

 

How many hours of SPSL are employees entitled to take?

Covered employees who work at least 40 hours a week are entitled to up to 40 hours of leave unless the employer designates a higher limit.  Covered employees who work fewer than 40 hours in a week are entitled to an amount equal to the amount of time the employee is otherwise scheduled to work or actually works on average in a 7-day period, whichever is greater and unless the employer designates a higher limit.

For covered employees with changing schedules, SPSL time is calculated as the average number of hours in a 7-day period the employee was scheduled to work over the past 90 days multiplied by 7.

Covered employees who are exempt from overtime requirements under the FLSA will be assumed to have worked 40 hours a week for purposes of SPSL entitlement unless their normal work week is less than 40 hours, in which case SPSL will be based upon that normal work week.

Employers may not require, as a condition of providing SPSL for an employee, that the employee search for or find a replacement to cover the hours during which the employee is using SPSL.

Are employers permitted to request documentation of an employee taking SPSL?

An employer is permitted only to request that an employee submit a self-certified statement asserting that leave was used for SPSL purposes.

What type of notice do employers need to provide to employees regarding SPSL and vice versa?

Employers must notify employees of their entitlement to SPSL.  The City has posted a model notice poster to its website with the SPSL information employers must post or provide to employees.  For employees who do not maintain a physical workplace, or who telework or perform work through a web-based platform, an employer can fulfill SPSL notification requirements by sending the information via electronic communication or conspicuously posting it a in the web-based platform.

Covered employees must provide notice to their employer of the need for SPSL as practicable and as soon as feasible, but only when the need for leave is foreseeable.

What is the rate of pay that an employee is compensated for SPSL?

Covered employees shall be compensated in the same manner as the regular rate of pay, including benefits if applicable, for the workweek in which the employee uses SPSL, provided that the hourly rate may not be less than the full state minimum wage.

What prohibitions are in place regarding SPSL?

Employers are prohibited from retaliating against employees for utilizing SPSL, and aggrieved employees have the right to file a civil action against an employer for an alleged violation of the ordinance without first filing an administrative complaint.

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Jackson Lewis will continue to track COVID-19-related statutes and ordinances around the Commonwealth of Pennsylvania and the entire United States. If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.