The California Supreme Court in Kuciemba v. Victory Woodworks, Inc was asked to rule on two questions by the 9th Circuit:

  1. If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, causing injury, does the California Workers’ Compensation Act (WCA) bar the spouse’s negligence claim against the employer?
  2. Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?

Background

The plaintiffs in this matter are a husband and wife who filed a lawsuit against the husband’s employer. The husband worked for the employer at a construction site in San Francisco in 2020, where he was required to work in close contact with other workers who may have had COVID-19 in violation of the County’s health order. The husband’s employer allegedly failed to take COVID-19 precautions mandated in the County’s health order. The plaintiffs alleged because the employer failed to take precautions to prevent the spread of COVID-19, the husband became infected with COVID-19. The husband then transmitted COVID-19 to his wife, who became severely ill and was hospitalized. Plaintiffs filed suit in federal court against the husband’s employer claiming negligence, negligence per se, and premise liability. The district court granted the employer’s motion to dismiss.

Plaintiffs appealed to the U.S. Court of Appeals for the 9th Circuit and the 9th Circuit requested the California Supreme Court rule on the two issues listed above.

Workers’ Compensation Act

As to the first question, the California Supreme Court ruled the WCA does not bar a spouse’s negligence claim.

With limited exception, the WCA is intended to be the sole and exclusive remedy of the employee or their dependents to collect compensation against the employer. Similarly, workers’ compensation benefits provide the exclusive remedy for third-party claims if asserted claims are “collateral to or derivative of” the employee’s workplace injury.

The Court distinguished between claims that were “collateral to or derivative of” the employee’s workplace injury, and claims that are merely factually related to the employee’s injury.

Specifically, the Court determined the WCA does not preempt claims where the injuries of the plaintiff did not require proof of the employee’s injuries as a legal factor for the plaintiff’s cause of action, even if the two injuries are factually related. Even if the plaintiff’s injury would not have been caused “but for” the employee’s injury, the causal link is insufficient to render the claims derivative.

Therefore, the WCA does not apply because, while the wife’s negligence claim against the employer was factually related to or caused by his injury, her claim was not legally dependent on her husband’s workplace injury.

Duty of Employer to Prevent Exposure

The Court ruled employers do not have a duty of care to prevent “take-home exposure” of COVID-19 to an employee’s household members.

California Civil Code section 1714 generally imposes an expansive duty of care, which the Court found could impose a duty of care upon employers. The Court determined the wife’s injury was reasonably foreseeable in that permitting the workplace spread of COVID-19 could cause an employee’s household members to contract the illness. The Court also determined the “moral blame” likely tilted toward finding a duty of care, as the employer could have profited off its failure to abide by the health order to prevent the spread of COVID-19.

However, the Court recognized imposing a duty of care upon employers to employees’ household members would impose a “significant and unpredictable burden” because it would be “impossible to eliminate the risk of infection, even with perfect implementation of best practices,” which could result in untold increases in litigation against employers with dire financial consequences. Given the high burden, this would impose on California businesses, the court systems in increased litigation, and burdens on the community, the Court favored creating an exception to the general rule of Civil Code section 1714. Therefore, the employer owed the employee’s wife no duty of care.

Without a duty of care, a negligence claim necessarily will fail against an employer.

If you have questions about the holding in this case or related issues, contact a Jackson Lewis attorney to discuss.

While the California COVID-19 State of Emergency was lifted several months ago, one holdover of the COVID-19 pandemic is the Cal/OSHA COVID-19 Prevention Non-Emergency Regulations (NER), which remain in effect until February 2025.

Under the NER, employers have various obligations to ensure employees are protected in the workplace. Under these regulations, employers have additional obligations should an outbreak occur in the workplace.

The NER relies on the California Department of Public Health’s (CDPH) definition of “outbreak” for purposes of determination. Throughout the pandemic, an outbreak was defined as three or more employees in an exposed group testing positive for COVID-19 within a 14-day period. Now, as of June 20, 2023, CDPH revised its definition to make it less likely for employers to experience an outbreak, changing the definition to 3 positive COVID-19 cases during a 7-day period.

Cal/OSHA has updated its Frequently Asked Questions Page for the NER to reflect these changes as well.

If you have questions about compliance with the Cal/OSHA COVID-19 NER or related issues contact a Jackson Lewis attorney to discuss.

The COVID-19 State of Emergency may be over but many employers are still feeling the economic effects of the pandemic.  In 2022, when COVID-19 Supplemental Paid Sick Leave (SPSL) was extended for the final time, the legislation also provided for a grant program for certain businesses to offset the costs of providing SPSL.

The State of California has a website where eligible businesses may apply for the grant.

Who Is Eligible?

A “qualified small business or nonprofit” must satisfy the following criteria to be eligible to receive a grant award under the program:

  1. Must meet the definition of a qualified small business or nonprofit as confirmed by the California Office of Small Business Advocate (CalOSBA) or fiscal agent through review of revenue declines, other relief funds received, credit history, tax returns, and bank account validation.
    1. Must be one of the following:
      1. A “C” corporation, “S” corporation, cooperative, limited liability company, partnership, or limited partnership.
      2. A registered 501(c)(3), 501(c)(6), or 501(c)(19).
    2. Began operating before June 1, 2021.
    3. Is currently active and operating.
    4. Had 26 to 49 employees between January 1, 2021, and December 31, 2022, and must provide payroll data and an affidavit, signed under penalty of perjury, attesting to that fact.
    5. Has provided COVID-19 Supplemental Paid Sick Leave pursuant to the requirements of Sections 248.6 and 248.7 of the California Labor Code.
    6. Must provide organizing documents, including a 2020 or 2021 tax return or Form 990, and a copy of official filing with the Secretary of State or with the local municipality, as applicable, including, but not limited to, Articles of Incorporation, Certificate of Organization, Fictitious Name of Registration, or government-issued business license.
  2. Must have an owner – or in the case of a nonprofit, an officer – identified as the authorized signer on the application that is at least 18 years of age.
  3. Must be able to provide an acceptable form of identity verification through an acceptable government-issued photo ID.

What Can Funds Be Used For?

Eligible businesses may use the funds to reimburse for SPSL provided between January 1, 2022, and December 31, 2022.  Businesses will be required to provide proof of employee payroll records that verify all SPSL provided by the business was pursuant to the state requirements under Labor Code sections 248.6 and 247.7.

For additional information on the application process, eligible businesses should review the State’s application portal at caspsl.com.

If you have additional questions about California SPSL or related issues contact a Jackson Lewis attorney to discuss.

As anticipated, President Joe Biden has rescinded the COVID-19 safety requirements for federal contractors in connection with the declared end of the COVID-19 public health emergency and the World Health Organization determination that COVID-19 is no longer a Public Health Emergency of International Concern.

Read more here.

The U.S. COVID-19 Public Health Emergency will end on May 11, 2023, one week after the World Health Organization determined that COVID-19 is no longer a Public Health Emergency of International Concern. On that same day, the Biden-Harris Administration has announced it will end COVID-19 vaccination requirements for federal employees, federal contractors, and international air travelers. The Administration also announced that the Department of Health and Human Services and the Department of Homeland Security will start the process to end their vaccination requirements for Head Start educators, healthcare facilities certified by the Centers for Medicare & Medicaid Services (CMS), and certain noncitizens at the land border.

COVID-19 still exists but like all emergencies, the COVID-19 Public Health Emergency was never intended to last forever. Thankfully. We will undoubtedly continue to see occasional upticks of COVID-19 infections. But for now, the CDC’s COVID-19 Community Levels map shows low levels across almost the entire U.S. except for scattered small, pockets of medium and high levels. And with more people having some level of immunity either due to past exposure, vaccination, or a hybrid mix of both, and with the increased availability of therapeutics, COVID-19 presents a lower risk of severe illness across the United States. As explained recently by the CDC:

The United States has mobilized and sustained a historic response to the COVID-19 pandemic. As a nation, we now find ourselves at a different point in the pandemic – with more tools and resources than ever before to better protect ourselves and our communities.

The end of the U.S. Public Health Emergency does not mean the end of all COVID-19 regulation.  Some state and local requirements remain in place. But it is a good time for employers who might still have COVID-19 protocols in place to assess whether those protocols still make sense for their workplace in light of our current COVID-19 circumstances. Policies like testing and vaccination, and some accommodations, should be reviewed for legal compliance given the changes. The end of the Public Health Emergency provides employers a good opportunity to communicate with employees regarding what to expect in the workplace on a going forward basis and hopefully start to put the COVID chapter behind us.

Please reach out to the Jackson Lewis attorney with whom you regularly work to discuss all these issues.

The last-standing COVID-19-related travel restrictions will soon expire. Bringing the United States in line with most countries around the world, after May 11, 2023, non-citizen, nonimmigrant air passengers need not show proof of being fully vaccinated to board a flight to the United States.

Until May 12, nonimmigrants must still document having a bivalent or monovalent dose of an approved COVID-19 vaccine taken at least 14 days before their arrival in the United States.

In addition, beginning May 12, non-U.S. travelers will be able to enter the United States by land or ferry without providing evidence of up-to-date vaccinations.

In addition to ending the travel restrictions, the Biden Administration also announced that the COVID-19 vaccination requirements for federal employees and federal contractors will end May 11, and the Administration will start the process to end the vaccination requirement for head start educators and CMS (Centers for Medicare and Medicaid Services)-certified facilities.

The COVID-19 public health emergency has been in effect since January 2020. Anticipating the end of the emergency declaration, USCIS already ended the 60-day grace period granted to respond to requests from the agency. On May 4, 2023, DHS and ICE announced that the flexibility to conduct remote verification of documents for Form I-9 purposes will end as of July 31, 2023. Beyond that, USCIS still has discretion to grant measures, including extensions, on a case-by-case basis upon request for those who have been affected by unforeseen circumstances, including a public health emergency. Unforeseen circumstances related to COVID-19 may still fall into this category.

Jackson Lewis attorneys are available to answer any questions regarding travel or COVID-19-related flexibilities, particularly those connected with preparing for the end of flexibility regarding Form I-9 employment verifications.

The Biden-Harris Administration has announced that, at the end of the day on May 11, 2023, it will end COVID-19 vaccination requirements for federal employees, federal contractors, and international air travelers. The COVID-19 public health emergency also will end on the same day.

In addition, the Administration announced that the Department of Health and Human Services (HHS) and the Department of Homeland Security will start the process to end their vaccination requirements for Head Start educators, healthcare facilities certified by the Centers for Medicare & Medicaid Services (CMS), and certain noncitizens at the land border.

According to the Administration, the COVID-19 vaccination requirements were announced in 2021 “to promote the health and safety of individuals and the efficiency of workplaces, protecting vital sectors of our economy and vulnerable populations.”

It noted, “Our Administration’s vaccination requirements helped ensure the safety of workers in critical workforces including those in the healthcare and education sectors, protecting themselves and the populations they serve, and strengthening their ability to provide services without disruptions to operations.”

According to the Administration, the country is in a different phase of the pandemic and these government requirements are no longer necessary. “Since January 2021, COVID-19 deaths have declined by 95%, and hospitalizations are down nearly 91%. Globally, COVID-19 deaths are at their lowest levels since the start of the pandemic.”

Impact on Healthcare Providers

The CMS mandate originally was announced by Secretary of Health and Human Services Xavier Becerra, who administers the Medicare and Medicaid programs. While there were legal challenges to the mandate, the U.S. Supreme Court’s Jan. 13, 2022, 5-4 decision ruled in favor of the government, allowing the CMS COVID-19 vaccine mandate to continue. The decision permitted CMS to enforce, in all states and U.S. territories, its interim final rule requiring many Medicare and Medicaid providers to ensure their covered staff are vaccinated against COVID-19.

The Administration states that HHS will start the process to end the CMS vaccination requirement, but it has not provided further guidance as to when or how that will occur.

The removal of the CMS requirement will allow healthcare employers to make their own decisions about whether to continue a COVID-19 vaccination requirement. Affected CMS-covered employers should review existing policies and practices around vaccination requirements, remembering that state or local requirements may still impose continuing COVID-19 vaccination requirements. In addition, some jurisdictions may bar COVID-19 vaccination requirements in the absence of the federal mandate.

Please contact a Jackson Lewis attorney with questions.

Effective April 3, 2023, Oregon OSHA suspended its rules addressing the COVID-19 Public Health Emergency and Amended Work Clothing Rules via Oregon OSHA Administrative Order 1-2023.

The COVID-19 rules have been temporarily suspended as an interim measure until Oregon OSHA implements the permanent rulemaking process to fully repeal the rules, which it intends to do shortly. For those employees who still feel vulnerable to contracting COVID-19, the agency also made temporary amendments that include allowing employees the option to wear face coverings, and requiring employers to supply face coverings at no cost to employees when the employer requires their use.

These changes are in tandem with Oregon Health Authority’s announcement that masks are no longer required in healthcare settings, also effective April 3, 2023.

In October 2022, Governor Newsom announced the California COVID-19 State of Emergency would end on February 28, 2023. While this will phase out some of the tools the state used in handling the COVID-19 pandemic, it does not mean the end of all COVID-19 regulations and requirements for employers.  Three illustrative examples are discussed below.

Supplemental Paid Sick Leave

As employers may know, the statewide supplemental paid sick leave expired at the end of 2022. Following Governor Newsom’s lead, the City of Los Angeles has rescinded its local emergency, which has caused its supplemental paid sick leave requirement to sunset effective February 15, 2023. Similarly, the City of Long Beach has voted to sunset its local supplemental paid sick leave effective February 21, 2023.

Some local supplemental paid sick leave ordinances, however, have remained in place. The City of Oakland is considering extending its local emergency which would extend the requirements of its local supplemental paid sick leave. Additionally, the County of Los Angeles has not indicated when it will end its local emergency, which means its supplemental paid sick leave will remain in effect for unincorporated areas of the county.

Moreover, San Francisco voters approved the Public Health Emergency Leave Ordinance, which provides paid leave for employees for “public health emergencies” which currently include COVID-19, in the city.

Cal/OSHA Regulations and Requirements

On February 3, 2023, Cal/OSHA’s COVID-19 Prevention Non-Emergency Regulations went into effect.  The regulations will apply to California employers for two years, except for the recordkeeping requirements which will expire in three years.

Moreover, in 2022, a bill was passed to extend COVID-19 employee notice requirements until 2024. Previously under Assembly Bill 685 which was passed in 2020, if an employer received notice of potential exposure to COVID-19, the employer was required to provide written notice of the potential exposure within one business day to all employees who were at the worksite.  Originally, this notification requirement was set to expire on January 1, 2023. Assembly Bill 2693 extends this notification requirement to January 1, 2024 and gives employers another option for complying with these notification requirements.

Right of Recall

In 2021, California passed Senate Bill 9 which required that covered employers offer employees laid off due to the COVID-19 pandemic available positions based on a preference system. This law sunsets on January 1, 2024. Several cities across the state have passed similar right of recall ordinances which remain in effect despite the end of the state of emergency.

If you have questions about your COVID-19 obligations in California, please reach out to a Jackson Lewis attorney to assist.

California employers take note: the non-emergency version of the Cal/OSHA COVID-19 Prevention regulations are now in effect.

At the end of 2022, the Cal/OSHA Standards Board voted to adopt the COVID-19 Prevention non-emergency regulations to replace the Emergency Temporary Standard(ETS).

On February 3, 2023, the California Office of Administrative Law approved the non-emergency standard. Though not titled a temporary standard, the non-emergency standard is set to sunset two years from its effective date, with the exception of the recordkeeping requirements which will expire in three years.

In conjunction with the approval, Cal/OSHA published both a Frequently Asked Question Page (FAQ) and a COVID-19 Model Prevention Program.

The FAQ covers the following:

  • Scope of Coverage
  • COVID-19 Prevention Addressed in the Injury and Illness Prevention Program
  • Determining Measures to Prevent COVID-19 Transmission; Identifying and Correcting COVID-19 Hazards
  • Face Coverings and Personal Protective Equipment
  • Ventilation
  • Vaccines
  • Training
  • Addressing COVID-19 Cases in the Workplace
  • Testing
  • Outbreaks
  • Recordkeeping and Reporting
  • CDPH Isolation and Quarantine

The FAQs provide some useful information as employers pivot from the ETS requirements.

Hybrid/Remote Employees

The non-emergency regulations apply only when employees work at the workplace or are exposed at work, and not when they work from home. The regulations do not apply to employees who are assigned to telework and who choose to work somewhere other than their home e.g. a hotel or a rental property unless arranged by the employer as employer-provided housing. Additionally, these regulations do not apply to employees who are covered by the Aerosol Transmissible Diseases regulation.

Close Contact Definition

The non-emergency regulations continue to use the revised definition of “close contact” set forth by the California Department of Public Health (CDPH) in October 2022.

  1. In indoor spaces of 400,000 or fewer cubic feet per floor, a close contact is defined as sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during a COVID-19 case’s infectious period.
  2. In large indoor spaces greater than 400,000 cubic feet per floor, a close contact is defined as being within 6 feet of the COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period.
  3. Offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces that are separated by floor-to-ceiling walls are considered distinct indoor airspaces.

The FAQs also provide a formula for determining the cubic feet of an indoor space.

Face Coverings and Personal Protective Equipment

Under the non-emergency regulations, employers must provide face coverings and ensure they are worn when required by CDPH.

Additionally, all employers must provide and ensure face coverings are worn during outbreaks at the workplace, as well as ensure the use of face coverings when employees return to work after having COVID-19 or after a close contact.

Testing Requirements

Under the non-emergency regulation, employers must offer testing at no cost and during paid time:

  • To employees who had a close contact at work, with an exception for symptom-free employees who recently recovered from COVID-19.
  • During an outbreak, to all employees within an exposed group, at least once a week, except for employees who were not at work during the relevant period and symptom-free employees who recently recovered from COVID-19.
  • During a major outbreak, twice per week, except for employees who were not at work during the relevant period and symptom-free employees who recently recovered from COVID-19 (returned cases).

Benefits to Excluded Workers

The non-emergency regulation no longer includes an exclusion pay requirement. Though the Standards Board discussed in December holding a vote to amend the regulations to include exclusion pay, that has not proceeded to date and was not indicated for the Board’s upcoming meeting on February 16th. The FAQs indicate that employees who test positive may be eligible for other benefits such as state disability.

Jackson Lewis will continue to track COVID-19 regulations and requirements into the endemic phase. If you have questions about the Cal/OSHA COVID-19 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.