Sacramento Bee reporter Darrell Smith spoke with labor and employment attorney Lukas Clary for his article on the coming COVID vaccines and whether employers might require their workers to get vaccinated.

With a look at past precedent — H1N1 — we can conclude that an employer will be able to require a vaccination as a condition of employment,” said Lukas Clary, an employment law attorney at Sacramento firm Weintraub Tobin.

But, Clary added, the issue isn’t that straightforward. If the workers are represented by a union, a COVID-19 vaccination program may have to be negotiated with the employees’ bargaining unit. Employers must also consider an employee’s religious beliefs that preclude them from being vaccinated or a medical reason for not taking a vaccine. Liability is also a concern, Clary said. Even if businesses are able to require vaccinations, “It may not be what they want to do,” Clary said. “If someone had an adverse reaction (to the vaccine), it could trigger a workers’ compensation claim.

Clary’s advice: “Encourage but stop short of requiring it. That may be the safe approach for now.

Read the full article here.

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As we wrote on December 3, 2020, an emergency COVID-19 rule was adopted and approved by the California Occupational Safety and Health Standards Board. The regulation contains significant new requirements including a mandatory written “COVID-19 Prevention Program,” paid time off in certain circumstances when a “COVID-19 case” is excluded from the workplace, notice and training requirements, and requires that employers offer testing in some situations.

The emergency standards will remain in effect for 180 days unless renewed, withdrawn or replaced. It applies to all California employers covered by Cal/OSHA (generally, employers with ten or more employees at any time during the year). Continue Reading A Deeper Dive into the New Cal/OSHA Temporary Emergency Standards for COVID-19 Prevention

On December 3, 2020, California announced a new Regional Stay Home Order (“Order”), which will take effect no later than December 5, 2020. The Order divides California into 5 regions, and mandates that once a particular region’s ICU capacity falls below 15%, residents of that region will be ordered to remain home or at their place of residence, except for permitted work, local shopping or other permitted errands, or as otherwise authorized. Specifically, the Order prohibits private gatherings of any size, closes sector operations except for critical infrastructure and retail, and requires 100% masking and physical distancing in all others.

The regions are defined as follows:

  • Northern California: Del Norte, Glenn, Humboldt, Lake, Lassen, Mendocino, Modoc, Shasta, Siskiyou, Tehama, Trinity
  • Bay Area: Alameda, Contra Costa, Marin, Monterey, Napa, San Francisco, San Mateo, Santa Clara, Santa Cruz, Solano, Sonoma
  • Greater Sacramento: Alpine, Amador, Butte, Colusa, El Dorado, Nevada, Placer, Plumas, Sacramento, Sierra, Sutter, Yolo, Yuba
  • San Joaquin Valley: Calaveras, Fresno, Kern, Kings, Madera, Mariposa, Merced, San Benito, San Joaquin, Stanislaus, Tulare, Tuolumne
  • Southern California: Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, Ventura

The Order will remain in effect for at least 3 weeks and, after that period, will be lifted when a region’s projected ICU capacity meets or exceeds 15%. This will be assessed on a weekly basis after the initial 3 week period.  More information can be found at the state’s COVID-19 website at https://covid19.ca.gov/stay-home-except-for-essential-needs/. We will keep the blog updated as more information comes available.

 

On November 30, 2020, the California Division of Occupational Safety and Health’s (“Cal/OSHA”) Emergency COVID-19 Prevention Regulation went into effect. The regulations apply to all employers, employees, and to all places of employment with three exceptions: (1) workplaces where there is only one employee who does not have contact with other people; (2) employees who are working from home; and (3) employees who are covered by the Aerosol Transmissible Diseases regulation.

The emergency regulations provide additional requirements on employers in light of the COVID-19 pandemic in the following areas: COVID-19 prevention, the handling of COVID-19 infections and COVID-19 outbreaks (including major outbreaks), COVID-19 prevention in employer-provided housing, and COVID-19 prevention in employer-provided transportation to and from work. Employers should review the regulations in detail to understand how their own workplace might be affected. Among the issues addressed by the emergency regulations, are the following:

  1. Employers must adopt a written COVID-19 Prevention Program containing the following information:
    • Communication to employees about the employer’s COVID-19 prevention procedures
    • Identify, evaluate and correct COVID-19 hazards
    • Physical distancing of at least six feet unless it is not possible
    • Use of face coverings
    • Use engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk
    • Procedures to investigate and respond to COVID-19 cases in the workplace
    • Provide COVID-19 training to employees
    • Provide testing to employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas
    • Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk
    • Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required
  1. Guidance on dealing with employees who are COVID-19 positive, or who have been exposed to the illness. Specifically, employers are directed to exclude COVID-19-positive employees and those who have been exposed to COVID-19 from the workplace. If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits, unless the employer can establish the employee’s exposure was not work-related. The employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments.
  2. Specific guidance on what additional actions employers must take amidst a major COVID-19 outbreak, which is defined as a covered workplace that has 20 or more COVID-19 cases within a 30 day-period.

Employers can find more information on the Cal/OSHA COVID-19 Guidance and Resources website here, (link https://www.dir.ca.gov/DIRNews/2020/2020-99.html. In addition, FAQ’s on the emergency regulations can be found here (link https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html).

These emergency regulations are now in effect. Employers should immediately review their Cal/OSHA COVID-19 Prevention Plans to ensure compliance with the new regulation. In many cases, employers will need to revise and update their plans, and payroll procedures previously implemented, in order to comply with these new emergency regulations.

The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your family good health during these challenging times.  If we can assist you in any of your employment law needs, feel free to reach out to us.