Throughout the COVID-19 pandemic, the California government has required employers to follow the most robust COVID-19-related laws and regulations in the country. However, California’s COVID-19 state of emergency officially ended on February 28, 2023. Shortly thereafter, the California Department of Public Health (“CDPH”) announced its vaccination and masking requirements for healthcare workers will expire on April 3, 2023. Despite these changes, Cal/OSHA’s COVID-19 prevention non-emergency regulations (the “Permanent Standard”) and other COVID-19 related laws remain in effect.
1. Cal/OSHA’s Permanent Standard
As detailed in the January 2023 edition of the ALERT, the Permanent Standard replaced Cal/OSHA’s COVID-19 Emergency Temporary Standards (“ETS”). The Permanent Standard eliminated multiple protocols required under the ETS, including employee screening (such as temperature and symptom checks) and exclusion pay. The Permanent Standard also limits the requirement for employers to make testing available to close contacts in the workplace and as required under outbreak protocols. But, employers still must notify close contacts of potential exposure “as soon as possible” and follow the worksite notification requirements under Labor Code Section 6409.6 (which remains in effect until January 1, 2024). Employers also must treat COVID-19 as a workplace hazard under Cal/OSHA’s IIPP regulations and therefore must address COVID-19 in their written IIPP (or a separate document), perform a COVID-19 hazard assessment, provide COVID-19 training, and investigate and respond to workplace exposures. The Permanent Standard became effective on February 3, 2023, and will remain in effect through February 3, 2025.
2. COVID-19 Leave Laws
As many employers know, California’s supplemental paid sick leave law expired at the end of 2022. Although multiple local supplemental paid leave ordinances initially remained in effect at the start of year, the majority have either ended or will end soon.
• Los Angeles: The City of Los Angeles rescinded its local emergency on February 1, 2023, which caused its supplemental paid sick leave requirement to sunset on February 15, 2023.
• Long Beach: The City of Long Beach voted to sunset its local supplemental paid sick leave effective February 21, 2023.
• Unincorporated Los Angeles County: On February 28, 2023, the Los Angeles County Board of Supervisors voted to end its COVID-19 emergency effective March 31, 2023, which means its supplemental paid sick leave and paid vaccine leave will expire April 14, 2023.
• Oakland: The City of Oakland has yet to announce the end of its local COVID-19 emergency and therefore its local supplemental paid sick leave obligations remain in effect.
• San Francisco: Employers with 100 or more employees worldwide must provide Public Health Emergency Leave (“PHEL”) of up to 80 hours to their San Francisco-based employees. Currently, COVID-19 still qualifies as a “public health emergency.”
3. New CDPH Orders And Guidance
On March 3, 2023, the CDPH issued orders modifying the state’s vaccination and masking requirements for healthcare workers and the state’s isolation guidance.
• Rescinding Of Vaccination Requirement: Effective April 3, 2023, California will no longer require COVID-19 vaccination for healthcare workers, including those in adult care, direct care, correctional facilities, and detention centers. Federal rules will continue to ensure that most health care workers remain vaccinated for COVID-19. Additionally, the EEOC’s guidance remains unchanged and contemplates an employer’s ability to have a generally applicable vaccination requirement, which appropriately accommodates medical conditions and sincerely held religious beliefs.
• Rescinding Of Masking Requirement: Effective April 3, 2023, California will no longer require masks in indoor high-risk and health care settings, including hospitals, long-term care, and correctional facilities. The CDPH explained that the reason for the delay is to allow local health departments and individual health care facilities to develop and implement plans customized to their needs and local conditions. Thus, healthcare employers still may continue to mandate masking based on individual factors such as their facility, patient demographics and community transmission rates.
• Updated Isolation Guidance: Effective March 13, 2023, an employee who tested positive for COVID-19 may end isolation after five days if symptoms are not present, or are mild and improving, and the employee is fever-free for 24 hours. Under the previous guidance, employees could return before ten days only if they tested negative on the fifth day or later. Because the Permanent Standard follows the CDPH’s isolation guidance, employers should modify their IIPP/COVID-19 prevention plan to incorporate the new guidance.
Although the COVID-19 state of emergency in California has ended, compliance with the state’s COVID-19 regulations and laws that remain in effect is still a concern for many California employers. Thus, employers should continue to monitor developments and modify their practices and procedures accordingly.
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About The Author
Robert K. Foster is an Associate with Sheppard, Mullin, Richter & Hampton LLP in the firm’s San Diego (Del Mar) Office. Mr. Foster represents employers in various types of employment litigation, including class action wage and hour claims; PAGA claims; and discrimination, wrongful termination, harassment and retaliation lawsuits. In addition, he also provides strategic advice to employers on a wide range of employment issues, including wage and hour compliance, employee classification, and OSHA matters. He is a frequent contributor to the California Labor and Employment ALERT Newsletter and several other articles and is a contributing author to the Employer’s Guide to COVID-19 and Emerging Workplace Issues.
Robert litigates actions involving trade secret claims, unfair competition and enforcement of restrictive covenants and non-competes. He also handles various commercial litigation disputes, including breach of contract, breach of fiduciary duty, fraud, tortious interference with contract, unfair competition and shareholder derivative claims.