As directed by President Joe Biden’s Executive Order issued on January 21, 2021 requiring the Federal Government to take swift action to protect workers from the COVID-19 pandemic, the Occupational Safety and Health Administration (“OSHA”) has released updated guidance on how to prevent exposure and the spread of COVID-19 in the workplace.

The guidance entitled “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” was posted on OSHA’s website on January 29, 2021.  As with OSHA’s previous recommendations, this guidance is not mandatory and does not have the same legal effect as an OSHA standard.  However, it does give some insight into what OSHA expects to include in an emergency temporary standard (“ETS”) which the new Administration wants the agency to consider and potentially implement by March 15, 2021.

Most employers will be familiar with the elements in the guidance, but here are some of the significant new measures addressed in the guidelines:

  • Employers should provide all workers with face coverings (i.e., cloth face coverings, surgical masks), unless their work task requires a respirator.  Many states did not require this and OSHA did not previously recommend employers purchase masks.
  • Provide a COVID-19 vaccine at no cost to eligible employees.
  • Do not distinguish between vaccinated workers and those who are not vaccinated for purposes of implementing safety measures.
  • Minimize the effect of quarantine and isolations by implementing non-punitive policies, and provide paid sick leave. Employers with less than 500 employees are encouraged to provide FFCRA leave which is still available (though not mandatory) through March 31, 2021 under the Families First Coronavirus Response Act.
  • Provide guidance on screening and testing.
  • Assign a workplace coordinator responsible for COVID-19 issues.

OSHA’s guidance related to the COVID-19 pandemic continues to evolve and further changes are expected with President Biden’s new Administration.  James “Jim” Frederick, a former United Steelworkers safety official, has been named by the Administration to act as the head of OSHA on an interim basis.  Mr. Frederick has indicated that in that role he will be focused on drafting and implementing an enforceable emergency COVID-19 standard.  While these efforts may be opposed by various industry groups, employers need to be aware of these potential new developments so they can take appropriate steps to ensure that they are following the best recommendations to address the pandemic and provide their employees a safe and healthy working environment.

If you have questions or need assistance on OSHA inspections and citations, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

Once again, ICE has announced a further extension of flexibility in its rules related to I-9 compliance. The extension will continue through March 31, 2021.

This means that:

  • Employers may continue to inspect Section 2 Form I-9 documents virtually (e.g., over video link, by fax, or by email).
  • The flexibility applies only to employers with workplaces that are operating remotely. ICE reiterates that if employees are physically present at the workplace, no exceptions will be implemented.
  • Any employees onboarded virtually must report for in-person verification once the employer’s normal operations resume (which may be before March 31, 2021) or once the employee is physically present at the work location, whichever is earlier.
  • Employers not eligible for the flexibility, if necessary, may designate authorized representatives to act on their behalf to conduct in-person review of documents.

Jackson Lewis attorneys are available to assist you in establishing I-9 policies and practices to fit your company’s circumstances.

As employers continue to grapple with a safe return to the workplace, the U.S. Centers for Disease Control and Prevention (CDC) issued new guidance for businesses and employers on SARS-CoV-2 testing of employees, as part of a more comprehensive approach to reducing transmission of the virus in non-healthcare workplaces. SARS-CoV-2 is the virus that causes COVID-19.

While the CDC had already released some guidance on the matter of workplace testing (last updated in October 2020), the guidance issued on January 21, 2021, places a new emphasis on informed consent prior to testing and the measures an employer can take to ensure employees are fully supported in their decision-making.  Read more about the CDC guidance here.

Federal contractors know all too well the list of annual requirements and obligations can seem overwhelming at times.  One that may get overlooked by some is annual training requirements. A fairly new such training went into effect in 2017 – it requires certain federal contractors to do annual data privacy training.

According to the U.S. General Services Administration (“GSA”), for example, its agency-wide and role-based training offerings cover the GSA’s policies on protecting personally identifiable information (“PII”). The GSA requires all employees and contractors to complete privacy and security awareness training upon employment and each year thereafter. Importantly,

GSA account holders must complete this training in order to maintain access to the agency’s IT systems and resources such as email, Google Drive and other IT resources.

The current political landscape (President Biden has announced heighted focus in this area, including plans for $10B of investment in government cyber and IT infrastructure), the COVID-19 pandemic where many federal contractors are receiving large amounts of sensitive information, and recent high-profile data security incidents involving the U.S. government, like SolarWinds, provide further reasons to support a business imperative to bolster the privacy and security awareness of your workforce.  Therefore, we recommend following the below steps to ensure your teams are training in this critical area.

  1. Identify if requirements apply, and who needs training

In general, annual privacy training is required for any federal contractor employee who accesses, processes, or handles PII on behalf of a government agency. This includes contractor employees who have access to any system of government records, or who assist in designing, developing, maintaining, or operating a system of records. Prime contractors are required to flow down these privacy training requirements to their subcontractors.

PII is defined in this regulation as “information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other information that is linked or linkable to a specific individual.”

Per the FAR, as noted above, contractor employees may not have access to PII unless they have had the required privacy training.

  1. What must training include

Per the FAR, training must address:

  • The contractors policies and procedures for processing and safeguarding of PII;
  • The provisions of the Privacy Act of 1974, including penalties for violations of the Act;
  • The authorized and official use of a system of records;
  • The restriction on the unauthorized use, handling disclosure, or access of PII or a system of records; and
  • The procedures to follow in the event of a suspected or confirmed breach of a system of records or PII.
  1. Understanding the requirements

A one-size-fits-all training likely will not be sufficient as the FAR requirements are described as “role based” and should be appropriate for different levels of employees. There should also be measures in place to test the knowledge of users. Contractors must also maintain and be able to provide documentation regarding the completion of the privacy training upon the request of their Contracting Officers.

  1. Format of training

Contractors may provide their own training to employees, except in the limited cases where an agency requires that certain training be utilized. Contractors can develop the content internally or use a third-party vendor or firm to do the training. Jackson Lewis provides this type of training to many of our government contractor clients.

  1. Recommended next steps for Government Contractors
  • Determine if your employees have access to PII as part of a government contract.
  • Review privacy procedures and policies to confirm compliance with training requirements.
  • If you are not currently training your employees in compliance with FAR 52.224-3, implement training program for employees handling PII.
  • Review subcontracts, as the privacy training requirements also apply to subcontractors.
  • Reach out to your local Jackson Lewis office with any questions.

In 2020, employers with employees in California were inundated with new compliance requirements brought on by the COVID-19 pandemic. It seemed that another local government or the state passed a COVID-19 supplemental paid sick leave requirement nearly every month.  These supplemental sick leave benefits applied to employees who were not covered by the federal Families First Coronavirus Response Act (FFCRA). Many of the ordinances were written to sunset with the FFCRA or on December 31, 2020.

Now that the leave requirements of the FFCRA (and by extension, California state required supplemental sick leave) have expired, many local agencies are reviewing the supplemental sick leave ordinances that were adopted in 2020.  Some agencies have extended the date by which employees may use benefits so that the ordinances have survived beyond the expiration of the FFCRA.  Others have expanded the scope of local ordinances to provide for leave for all employees who work in that jurisdiction, not just employees who were previously excluded from the FFCRA.  The following is a list of the current local supplemental paid sick leave ordinances, including its current expiration date and any revised scope:

Locality Current Expiration Date Eligible Employees
City of Los Angeles Until 2 calendar weeks after the expiration of the COVID-19 local emergency period.

Employees who perform work within the City of Los Angeles for an employer with 500 or more employees in the City or 2,000 nationally, except that following employees are excluded from coverage:

·       Emergency and health service personnel

·       Critical Parcel Delivery personnel

·       Employees of certain new businesses

·       Government employees

·       Employees of a closed business or organization

County of Los Angeles

(applies to unincorporated areas of the county only)

 Until 2 calendar weeks after the expiration of the COVID-19 local emergency period.

Employees who perform work within the unincorporated areas of the County of Los Angeles.

 

 
City of Long Beach To be determined based on information reports provided by the City Manager to the City Council every 90 days. Employees who perform work within the geographic boundaries of the City of Long Beach for an employer with 500 or more employees, except that Health Care providers, Emergency responders, and Government employees are excluded from coverage.
City of Oakland Until after the expiration of the City’s Declaration of COVID-19 Emergency. Employees who are entitled to minimum wage under the Labor Code and who work at least 2 hours within the geographic boundaries of the City of Oakland, except that employees of an employer with less than 50 employees are excluded from coverage unless they work for an unregistered janitorial service or franchise. Also excluded from coverage are health care providers and emergency responders.
City of Sacramento March 31, 2021 Employees who work within the City of Sacramento for an employer with 500 or more employees nationally, except that health care providers and emergency responders are excluded from coverage.
County of Sacramento (applies to unincorporated areas of the county only) March 31, 2021 Employees who perform work within the unincorporated area of the county for an employer who has 500 or more employees nationally, except that health care providers and emergency responders are excluded from coverage.
City and County of San Francisco February 11, 2021, unless extended. Employees who perform work in the geographic boundaries of the City and County of San Francisco for an employer with more than 500 employees nationwide.  Health care providers and emergency responders may be limited in their use of the leave.
City of San Jose June 30, 2021 Employees perform at least 2 hours of work within the geographic boundaries of the City of San Jose.
County of San Mateo (applies to unincorporated areas of the county only) June 30, 2021 Employees who perform work within the geographic boundaries of unincorporated areas of the County of San Mateo for an employer with 500 or more employees nationally, except that health care providers, aviation security workers, and emergency responders are excluded from coverage.

 

All of the recent extensions of supplemental paid sick leave, such as Oakland and San Jose, specify that the changes and extensions made do not provide for a new or refreshing bank of time.  Employees who already exhausted their leave entitlements under one of the supplemental paid sick leave mandates, including the FFCRA, do not receive a new bank of hours for 2021.

The City of Santa Rosa is scheduled to vote to extend its supplemental paid sick leave on February 2, 2021. If approved the amended ordinance will extend the supplemental paid sick leave requirement until March 31, 2021, for employers in the city of Santa Rosa.

Jackson Lewis continues to monitor local, state, and federal legislation pertaining to COVID-19. If you have questions about supplemental paid sick leave or other employment concerns related to COVID-19, contact a Jackson Lewis attorney to discuss.

The Biden administration announced that restrictions on travel known as the “14-Day Rules” will remain in effect, despite former President Trump’s decision to terminate some of them. These rules restrict entry by most non-U.S. citizens and non-Green Card holders from China, Iran, the United Kingdom, Ireland, Brazil and the 26 Schengen Zone countries.  While there are exemptions and national interest exceptions, these restrictions prevent travelers who have been in the named countries within 14 days prior to departure from entering the United States. On Saturday, January 30, 2021, South Africa will be added to the list of restricted countries due to the new strain of COVID discovered in that country. The new strain has not yet been discovered in the United States.

As of January 26, 2021, under CDC regulations, individuals who can travel to the United States will be required to provide proof of a negative COVID-19 test within three days of departure or documentation of recovery from COVID-19 before boarding flights. This requirement applies to all passengers over two years old flying to the United States from abroad, including U.S. citizens and Green Card holders. More than 120 countries have similar requirements. The White House confirmed that at this time there will not be any waivers for travelers coming from countries where testing is limited. The CDC also directs people to stay home for seven days upon return and get tested three-to-five days after return.

As a further preventive measure, mask-wearing will be required domestically at all airports, on commercial aircraft, trains, public maritime vessels, including ferries, and intercity bus services and on all federal properties.

Jackson Lewis will continue to follow these changes and provide updates as they become available.

Joining other counties and cities in California, the City of Oakland voted to extend its Emergency Paid Sick Leave ordinance into 2021. The amended ordinance applies retroactively to December 31, 2020, and will remain in effect until the City’s Declaration of COVID-19 Emergency expires.

The amended ordinance applies to all employers that have employees working in the City of Oakland, with the exception of certain smaller employers that are exempt from the ordinance’s requirements.

No Additional Time

Like the original ordinance, the amended ordinance provides full-time employees with 80 hours of Emergency Paid Sick leave (part-time employees receive a pro-rata amount). However, the amended ordinance states that employers are only required to provide Emergency Paid Sick leave on a one-time basis.  In other words, if an employer already provided an employee with all of the Emergency Paid Sick leave available under the original ordinance, it does not have to provide that employee with additional leave under the amended ordinance. In addition, an employer may credit any Emergency Paid Sick Leave hours provided to an employee prior to January 1, 2021, to its obligation to provide leave under the amended ordinance.

Off-Set Available

Employers may credit paid sick leave previously provided to employees under the Families First Coronavirus Response Act (FFCRA) or the state-wide COVID-19 Supplemental Paid Sick Leave law against the obligation to provide leave under the amended ordinance.

Reasons for Leave

The amended ordinance does not change the reasons for which Emergency Paid Sick leave may be taken. Employers must provide leave to employees who are unable to work due to the following reasons:

  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  • The employee is caring for an individual who is subject to an isolation or quarantine order, or has been advised to self-quarantine;
  • The employee is caring for their child because the child’s school or place of care is closed or unavailable due to COVID-19 precautions;
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor; or
  • The employee is caring for a family member who has been diagnosed with COVID-19 or experiencing symptoms of COVID-19.

The ordinance also provides paid leave for employees who:

  • Are at least 65 years old;
  • Have a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or a weakened immune system;
  • Have a condition identified by an Alameda County, California, or federal public health official as putting the public at heightened risk of serious illness or death if exposed to COVID-19, or
  • Have any condition certified by a healthcare professional as putting the employee at heightened risk of serious illness or death if exposed to COVID-19.

The County of Los Angeles will be considering its own extension on January 26, 2021, which will include an expansion to those employees previously covered by the FFCRA.

Jackson Lewis continues to monitor local, state, and federal legislation pertaining to COVID-19. If you have questions about supplemental paid sick leave or other employment concerns related to COVID-19, contact a Jackson Lewis attorney to discuss.

COVID-19 cases continue to surge around Southern California, causing the region to remain under the restrictions imposed by the statewide Regional Stay at Home Order longer than previously predicted. In response, local governments are looking for ways to reward the grocery workers who have been deemed essential since the start of the pandemic.

The City of Long Beach is the first to pass a “Hero Pay” ordinance, which requires certain grocery stores to pay workers “premium pay,” or additional compensation that is separate from an employee’s base pay, bonuses, commissions, and tips. The ordinance went into effect immediately on January 22, 2021, and remains in effect for 120 days from enactment, unless extended by the city council.

Covered Businesses

This ordinance applies to “grocery stores,” which include businesses that devote seventy percent or more of their business to retailing a general range of food products (fresh or packaged). It applies to grocery stores with more than 300 grocery workers nationally and more than 15 employees per grocery store within the City of Long Beach.

Covered Employees

The ordinance only requires premium pay be provided to those grocery workers who perform work within the City of Long Beach. However, the ordinance excludes managers, supervisors, and confidential employees from the premium pay requirement.

Premium Pay

Covered businesses must provide grocery workers with an additional $4.00 per hour for each hour worked.

Additional Requirements

Covered businesses must also provide written notice of rights established by the ordinance. The notice must include the following information:

  1. The right to premium pay guaranteed by the ordinance;
  2. The right to be protected from retaliation for exercising in good faith the rights protected by the ordinance; and,
  3. The right to bring a civil action for a violation of the requirements of the ordinance.

The notice must be posted in a location of the store used by employees for breaks and in an “electronic format that is readily accessible to the grocery workers.”

Covered businesses must also retain records that document compliance with the ordinance for a period of two years.

The City and County of Los Angeles, as well as the City of Santa Monica, are currently considering similar ordinances.

Jackson Lewis continues to monitor local, state, and federal legislation pertaining to COVID-19. If you have questions about premium pay ordinances or other employment concerns related to COVID-19, contact a Jackson Lewis attorney to discuss.

House Ways and Means Committee Chairman Richard Neal (D-Mass.) introduced the Emergency Pension Plan Relief Act of 2021 (EPPRA) on January 21, 2021. EPPRA represents the latest legislative attempt to address the well-documented multiemployer pension crisis.

EPPRA is significant in that it is the first legislation introduced by Chairman Neal under the Biden administration, signaling a possible renewed emphasis on solving the multiemployer pension crisis by the incoming administration. (A summary of EPPRA is available.) More

In November, California quietly approved the Division of Occupational Safety and Health’s (“Cal OSHA”) COVID-19 Emergency Temporary Standard (“ETS”). Almost immediately, Cal OSHA’s ETS caused significant confusion and challenges for employers, who were already struggling with countless federal, state, and local requirements pertaining to COVID-19. Cal OSHA’s ETS also appeared to create new and different notification obligations for COVID-19 cases than those already provided for under AB 685 and standing health officer orders, and imposed confusing obligations on employers related to COVID-19 testing, work exclusions, and reporting of COVID-19 cases. In places, Cal OSHA’s ETS could also be viewed as requiring inconsistent response measures to those recommended under current guidance from the Centers for Disease Control and Prevention (“CDC”) and standing health officer orders. Moreover, the ETS requires preventive measures without consideration for the feasibility of those measures for certain workplaces.

In response to numerous concerns raised by employers and business associations, Cal OSHA’s standards board held a public meeting on the ETS in mid-December. And in response to stakeholder concerns, Cal OSHA promised to provide additional guidance on the ETS in the form of updated Frequently Asked Questions (“FAQs”) on its website.

At the start of January, and more than a month after the ETS had gone into effect, Cal OSHA finally published its additional guidance on the ETS.

The FAQs cover a host of topics, including information on the ETS’s applicability, how Cal OSHA intends to enforce the ETS, key requirements, and guidance for how employers can comply. Cal OSHA also provided clarification on testing requirements, considerations for “multiple infections,” or outbreak conditions, and requirements for providing exclusion pay to employees. Although much of the FAQs are merely a restatement of the actual ETS, there are some clarifications in the FAQs that have a substantial impact on employers. The FAQs also at times appear to depart from the ETS and provide an altered compliance obligation.

Some highlights from the FAQs include the following:

  • Scope of Coverage: The ETS applies to all employers, employees, and all places of employment with three exceptions:
    • A workplace where there is only one employee who does not have contact with other people;
    • Employees who are working from home; and
    • Employees who are covered by Cal OSHA’s Aerosol Transmissible Diseases Standard and regulations.
  • Communication with Employees: Under the ETS, employers must have effective communication with employees on (i) how to report COVID-19 symptoms, exposures, and hazards to the employer without fear of reprisal, (ii) COVID-19 hazards in the workplace, (iii) the employer’s COVID-19 related policies and procedures; (iv) testing resources, (v) how the employer will notify employees of potential COVID-19 exposures; (vi) the employer’s cleaning and disinfection protocols; and (vii) how employees can participate in identification and evaluation of COVID-19 hazards in the workplace. Employers must also provide training to employees on a wide range of COVID-19 related topics, including information on benefits that may be available to the employee and the proper use of face coverings.
  • Outbreaks and Exposed Workplaces: The FAQ somewhat clarifies the definitions of an outbreak, major outbreak, and “exposed workplace” for Cal OSHA purposes. For purposes of the ETS, “an outbreak” is three or more employees who are COVID-19 positive in 14 days, whereas “a major outbreak” is 20 or more employees testing positive in 30 days in an exposed workplace. An “exposed workplace” is, in turn, considered to be a work location, working area, or common area that is used or accessed by a COVID-19 case during their high-risk period or infectious period and can include bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. However, the FAQs indicate that Cal OSHA does not expect employers to treat areas where masked employees momentarily pass through as part of the “exposed workplace.” Cal OSHA’s FAQs also do not address the fact that their interpretation of an outbreak or exposed workplace may be markedly different from the local health departments or how employers should address an outbreak condition when there are competing definitions or requirements under California laws (e.g., the ETS and health officer order).
  • Testing Requirements: In an attempt to clarify the testing obligation for employers, Cal OSHA’s FAQ states that when testing is required under the ETS, employers must only (i) inform employees on the need for testing and how they can obtain COVID-19 testing; (ii) offer testing to the affected employees at no cost; and (iii) ensure employees are compensated for the time it takes to get tested. Despite the plain language of the ETS conveying different obligations for testing in response to a COVID-19 case and outbreak conditions, Cal OSHA’s FAQ also states that there is no difference in meaning between the obligation to “offer” or “provide” testing in the ETS. Further, even though the ETS conveys that employees are to be immediately tested in some circumstances, employers are not required to mandate employee testing, exclude the employee from the workplace until testing is complete, or obtain a declination from an employee who refuses to be tested.

Even though Cal OSHA provided 69 FAQs and responses, employers are likely to continue to have questions as well as face compliance challenges. Cal OSHA has, for example, not addressed the permissibility of employers using COVID-19 testing resources that are approved through an alternate regulatory pathway than the Food and Drug Administration and Emergency Use Authorization pathway outlined in the ETS, even if these testing resources are more readily available or affordable.

Cal OSHA’s FAQs also do not address challenges posed by the exclusion pay provisions. This is especially significant given that some of the sick leave benefits Cal OSHA contemplates as being available for employers to meet exclusion pay provisions expired at the end of 2020 and have not been renewed. Moreover, Cal OSHA does not address the apparent conflict in the exclusion pay provisions and workers’ compensation compensability. The conflict arises especially with employees who become symptomatic as they may not be eligible for exclusion pay and may also not be eligible for workers’ compensation.

Cal OSHA’s FAQs has advised that additional resources for compliance are forthcoming and that resources, including sample training materials, will be posted and updated on Cal/OSHA’s COVID-19 webpage.

If you need assistance in complying with the ETS or other Cal OSHA safety regulations, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.