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.

On Friday, January 13, 2022, a New York State Supreme Court Judge for Onondaga County struck down the New York State Department of Health regulation mandating certain healthcare professionals be “fully vaccinated” against COVID-19, declaring the regulation to be “null, void, and of no effect.”  (Medical Professionals for Informed Consent, et. al. v. Bassett, et al.)

The New York State Healthcare COVID-19 Vaccine Mandate initially was enacted as an Executive Order in August 2021 under then Governor Andrew Cuomo’s emergency powers. Almost one year after the state of emergency ended in New York, the New York State Health Commissioner adopted the COVID-19 Vaccine Mandate as a permanent regulation in June 2022.

On October 20, 2022, Petitioners-Plaintiffs Medical Professionals for Informed Consent sought to enjoin and permanently restrain Defendants-Respondents, including the Commissioner of Health, Governor Hochul and the New York State Department of Health, from implementing or enforcing the COVID-19 Healthcare Vaccine Mandate.

The court held that New York State’s Public Health Law limits the Commissioner of Health from implementing any mandatory immunization program except as provided under the Public Health Law and that since none of the coronaviruses are covered under the Public Health Law, the Commissioner of Health acted outside the scope of her authority in implementing the vaccine mandate.

As of now, there has been no statement from the Department of Health regarding whether they intend to appeal the decision.

In the meantime, healthcare employers should be mindful that the Centers for Medicare & Medicaid Services’ COVID-19 vaccine requirement may still apply to their organization.

If you have any questions about what this decision means for your organization, please contact a Jackson Lewis attorney.

Starting on Jan. 5, 2023, COVID-19 travel restrictions are back for those traveling to the United States from China, Hong Kong, or Macau. Individuals will have to show evidence of a negative COVID-19 test or of recovery from COVID-19.

Restrictions will apply to everyone over the age of 2 boarding a flight from China, Hong Kong, or Macau to a destination in the United States. The restrictions will also apply to those who transit through third countries to the United States or those who are connecting in the United States to further destinations. Such individuals will have to show evidence of a negative COVID-19 test taken no more than two days prior to departure. This applies across the board, regardless of the individual’s nationality, immigration status, or vaccination status. The alternative is to provide proof of recovery from COVID-19 from within 90 days of departure.

The COVID-19 test must be a PCR test or a monitored self-test authorized by the FDA.

There will be limited exceptions for emergency travel to protect someone’s life or health from serious threat or danger.

Individuals travelling through South Korea, Toronto, or Vancouver to the United States will need to show evidence of a negative COVID-19 test if they have been in China within 10 days of boarding.

Other countries are also issuing similar regulations. To date those include Australia, Canada, France, Israel, Italy, Japan, Malaysia, Morocco, Qatar, Singapore, South Korea, Spain, Thailand, and the United Kingdom.

The Chinese government criticizes that these new restrictions lack a scientific basis, coming just as China has opened its borders to visitors. The first ban on travel from China due to COVID-19 was imposed by the Trump Administration in Feb. 2020 and was lifted in Nov. 2021 by the Biden Administration.

Jackson Lewis attorneys are available to assist regarding the new requirements.

While many COVID-19 travel restrictions have been removed, all nonimmigrant foreign nationals continue to be required to present proof of being fully vaccinated against COVID-19 in order to board an international flight to the United States.

A summary of the COVID-19 vaccination requirements can be found below.

Someone is “fully vaccinated”:

  • 14 days after receiving one dose of an approved single dose vaccine;
  • 14 days after receiving the second dose in a two-dose series vaccine; or
  • 14 days after receiving two doses of any approved “mix and match” combination administered at least 17 days apart.

The CDC has a list of approved vaccines. Boosters are not required.

Acceptable proof include the following:

  • Vaccination certificate with QR code or digital pass via Smartphone application with QR code
  • Printout of COVID-19 vaccination record or certificate issued at a national or subnational level by an authorized vaccine provider
  • Digital photos of vaccination card or record, downloaded vaccination record or vaccination certification from an official source, or a mobile phone application without a QR code
  • All proof must have personal identifiers (full name plus at least one other identifier such as date of birth or passport number) that match passport or other travel documents
  • Airlines will determine is when a translation is required

The following are excepted from the requirement to provide proof of vaccination:

  • Those on official government business or diplomatic travel
  • Children under 18 years of age
  • Participants in certain COVID-19 vaccine trials
  • Persons with medical contraindications to vaccination
  • Persons issued humanitarian or emergency exception
  • Persons with valid nonimmigrant visas (except B-1/B-2) who are from countries with limited COVID-19 vaccine availability
  • Members of U.S. Armed Forces and their spouses and children (under 18 years old)
  • Sea crew members on C-1 or D nonimmigrant visas
  • Persons whose entry is in the U.S. national interest as determined by the Secretary of State, Transportation, or Homeland Security (or their designees)
  • Individuals who are excepted may have to agree to following certain protocols upon entry into the United States

In addition to the above COVID-19 travel restrictions, when traveling to the United States, all nonimmigrants should carry a passport valid for at least six months and a valid U.S. visa stamp or ESTA approval (if eligible).

Please reach out to your Jackson Lewis attorney if you will be traveling internationally or have any questions about COVID-19 travel restrictions.

On December 31, 2022, Cal/OSHA’s COVID-19 Emergency Temporary Standards (ETS) finally sunset. However, the Standards Board has been working to pass a permanent standard to ensure it is in place before the expiration of the ETS. The Board has announced it will be voting on the permanent standard at its upcoming meeting on December 15th. Of note, while it is called a permanent standard, the proposed standard includes a two-year sunset, consistent with the recognition that COVID-19 is now moving into its endemic phase. As employers prepare for a permanent standard here are some of the highlights of what will stay the same and change from the ETS. Changes from ETS
  • End of Exclusion Pay.  One of the biggest changes in the permanent standard is that exclusion pay will no longer be required to compensate employees who miss work due to an employer-caused COVID-19 exposure.
  • Modified Masking Requirements. Certain mask requirements have been removed from the permanent standard. The definition of an “exposed group” still contains a “momentary pass-through” exception. This exception is being broadened to include individuals who are not masked. As re-defined, the momentary pass-through exception applies to a place where persons momentarily pass through without congregating, provided that it is not a work location, working area, or a common area at work.
  • Reduced Reporting Requirements. Employers will no longer be required to report outbreaks to the local health department under the permanent standard. Moreover, a COVID-19 outbreak can be deemed over when “one or fewer” new cases are detected in the exposed group for a 14-day period. An investigation, review, and correction of hazards following an outbreak no longer will be required to be “immediate” following an outbreak.
Continuation from ETS
  • Recordkeeping Requirements.  Employers will still be required to maintain records of workers’ infections, but they will not need to maintain records of employees deemed a close contact.
  • Updated Definition of “Close Contact.”  The definition of “close contact,” which is important for purposes of notice, also continues to be linked to the California Department of Public Health definition.
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.

In our latest issue of the Class Action Trends Report, Jackson Lewis attorneys look at the current state of COVID-19-related litigation at this late stage of the global pandemic.

Employers have faced more than 5,000 COVID-19-related lawsuits — hundreds of which were brought as putative class or collective actions — and new lawsuits continue to be filed every day. In fact, September 2022 saw the highest number yet of new complaints challenging employer vaccine mandates. Wage and hour suits raising a variety of legal claims continue to dot the class action landscape. COVID-19-related layoffs and plant closings, and remote work trends fueled by COVID-19 quarantines, will impact WARN Act litigation for years to come.

While the worst of the COVID-19 pandemic appears to be behind us, the outbreak of COVID-19-related litigation shows no signs of slowing.

Previously, the California Department of Public Health (CDPH) had redefined “close contact’ as someone sharing the same indoor airspace with a person who had COVID-19 for a cumulative total of 15 minutes or more over a 24-hour period. This definition had caused issues for employers in particular who needed to comply with notice requirements. These notice requirements were recently extended until 2024.

In order to allow businesses to better respond to potential exposures, the CDPH revised its definition of close contact to set clearer parameters. Under the revision “close contact” is defined as the following:

  • In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane, etc.), a close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person’s (confirmed by COVID-19 test or clinical diagnosis) infectious period.
  • In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period.

The CDPH revision also clarifies that spaces that are separated by floor-to-ceiling walls e.g. offices, suites, and waiting rooms are considered distinct indoor airspaces for purposes of close contact.

The CDPH also published a Questions and Answers for Beyond the Blueprint which explains the difference between direct and indirect exposure as well as how healthcare facilities should respond to potential exposure when using the updated definition.

Employers should review the revised definition as it applies to notice requirements to employees who may have been exposed.

If you have questions about the effect of the CDPH revisions or related issues, contact a Jackson Lewis attorney to discuss.

After more than two and half years, Washington State Governor Jay Inslee has announced that he will be ending the COVID-19 state of emergency, effective October 31, 2022.  When that occurs, all remaining state COVID-19 emergency proclamations will end as well.

Even after the state of emergency is lifted, the Department of Health’s statewide Face Covering Order will remain in place for health care and long-term care settings, as well as correctional facilities in some circumstances.  Governor Inslee indicated he will seek to keep in place protections for workers who choose to wear a mask in their workplace, but he will presumably need the Legislature to pass that legislation.  Washington State’s COVID-19 vaccination requirements for health care and education workers will end when the state of emergency is lifted.  Employers may choose to maintain their own employee vaccination requirements, but should consult with counsel about the related legal issues.

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.

Since March 2020, COVID-19 rules have been confusing at best.  On August 11, 2022, in an effort to streamline the guidance and reflect the current state of the pandemic, the CDC once again issued updated guidance.  The new guidance focuses on individual responsibility and is designed to help the public better understand how to protect themselves and others if they are sick or exposed.

The most recent CDC COVID-19 recommendations include the following:

  • Vaccination. The CDC continues to promote the importance of being up to date with vaccination to protect people against serious illness, hospitalization, and death.  However, while the CDC continues to recommend vaccination, its guidance no longer differentiates between vaccinated and unvaccinated.
  • Quarantine.  The CDC no longer recommends quarantining following COVID-19 exposure, regardless of vaccination status.  Instead of quarantine, the CDC recommends anyone exposed to COVID-19 wear a high-quality mask for 10 days and get tested on day 6.  Previously, the CDC recommended a 5-day quarantine for anyone who was not up to date with vaccinations.
  • Isolation.  The CDC continues to recommend that regardless of vaccination status, individuals should isolate from others if they are sick and suspect that they have COVID-19 or have tested positive for COVID-19.
    • The CDC recommends that individuals with COVID-19 stay home for at least 5 days. After 5 days, if the individual is fever-free for 24 hours without the use of medication, and their symptoms are improving (or they never had symptoms) they can end isolation.
    • However, the CDC now recommends that individuals who had moderate illness (experienced shortness of breath or had difficulty breathing) or severe illness (were hospitalized) due to COVID-19 or have a weakened immune system, should isolate through at least day 10 and those who had severe illness or have a weakened immune system should consult with their healthcare provider before ending isolation.
    • The CDC also recommends that someone who has ended isolation should avoid being around anyone who is at high risk for a serious case of COVID-19 until at least day 11.
    • Finally, the CDC recommends that if an individual’s COVID-19 symptoms worsen, they should restart their isolation at day 0.
  • Testing.  The CDC no longer recommends screening testing of asymptomatic people without known exposures in most community settings.
  • Physical Distance. The CDC emphasizes that physical distance is just one component of how individuals can protect themselves and others.  The CDC recommends considering the risk in a particular setting, including local COVID-19 Community Levels and the important role of ventilation, when assessing the need to maintain physical distance.

The CDC’s focus on individual responsibility, the removal of distinctions between vaccinated and unvaccinated, the removal of quarantine recommendations and the discussion of mask wearing as an individual responsibility are good news for employers who are considering relaxing COVID-19 workplace requirements.

This likely will not be the last we hear from the CDC on this topic.  Indeed, the CDC stated that it intends to issue more specific guidance for settings such as healthcare, congregate living, and travel.

In March 2022, the California Department of Public Health (CDPH) dropped universal indoor masking, though masking was still required in certain places. By April 2022, most counties had also ceased universal indoor masking requirements. However, recently, the Los Angeles County Department of Public Health (LACDPH) stated if the uptick in cases and hospitalizations continued, then the County would implement a new indoor universal mask mandate effective July 29, 2022.

On July 28, 2022, the LACDPH announced it would not proceed with a new universal masking mandate due to a reduction in transmission and hospitalizations. However, LA County’s current order still requires masks in the following situations:

  • On all forms of public transportation in LA County. This includes trains, buses, taxis, and ride-shares.
  • In all indoor transportation hubs in LA County, including airport and bus terminals, train and subway stations, seaports or other indoor port terminals, or any other indoor area that serves as a transportation hub.
  • In healthcare settings
  • In long-term care settings and adult/senior care facilities
  • In state and local correctional facilities and detention centers
  • Shelters and cooling centers

Currently, no counties in California require indoor universal masking. However, employers should review state and local orders to determine if different requirements apply to their industry.

Employers should also be aware that in certain circumstances, employees may be required to wear a face covering after testing positive for COVID-19, having a close contact with someone who has tested positive, or during an outbreak.

If you have questions about current mask requirements or issues related to COVID-19 in the workplace, contact a Jackson Lewis attorney to discuss.