It’s About Time: Cal/OSHA Issues Guidance Regarding Vaccinated Employees and Other Updates to Look Out For

Client Alert

May 2021

CDPH Updated Guidance Says Fully Vaccinated Employees Do Not Need to Quarantine if Asymptomatic

On May 3, 2021 the California Department of Public Health (CDPH) released updated COVID-19 Public Health Recommendations for Fully Vaccinated People. The updated guidance comes in response to pressure from businesses to ease quarantine restrictions for fully vaccinated asymptomatic employees in non-healthcare workplaces. The guidance states in general that employees who are fully vaccinated (see below) do not have to quarantine if they are exposed to COVID-19 and are asymptomatic.

Cal/OSHA acknowledged this updated CDPH guidance and has updated its FAQs such that individuals no longer need to be excluded from the workplace under the ETS if asymptomatic and fully vaccinated. However, other requirements such as face coverings, social distancing, and testing requirements continue to apply to all employees. These updated FAQs reflect the following changes to the Emergency Temporary Standards:

Fully vaccinated employees do not need to be excluded from the workplace, even during an outbreak, if they have been exposed to COVID-19 but remain asymptomatic. However, vaccinated employees must still be excluded from the workplace if they (1) are COVID-19 cases, or (2) have had a COVID-19 exposure and exhibit COVID-19 symptoms. A COVID-19 case is someone who tests positive, is under an order to isolate, or has died from COVID-19.
Fully vaccinated employees do not need quarantine after they have been exposed to COVID-19 but remain asymptomatic

Who Is Considered a “Fully Vaccinated” Employee?

The updated CDPH guidance defines a “fully vaccinated” person as an individual who has gone two weeks or more after receiving the second dose in a two-dose vaccine series (Pfizer-BioNTech or Moderna) or two weeks or more after receiving a single-dose vaccine (Johnson and Johnson/Janssen). The guidance will be updated as more vaccines become available.

Be On The Lookout For Additional Revisions To The Cal/OSHA ETS

A meeting of the Occupational Safety and Health Standards Board is scheduled for May 20^th. On the agenda is significant changes the would further loosen the requirements of the Emergency Temporary Standards (ETS). Those proposed changes will be subject to public comment during the meeting. It is possible that any changes to the ETS will then be adopted at the meeting after public comment is received. We will continue to update you with any additional revisions to the ETS.

Form I-9 Completion Under DHS’s Temporary Remote Document Verification Policy

Since March 20, 2020, the Department of Homeland Security has authorized employers to remotely inspect new-hire documents for Form I-9 Section 2 completion via video link, fax, email, or other means in situations where the “employees [are] taking physical proximity precautions due to COVID-19.” DHS recently revised its policy guidance through May 31, 2021, to apply to any worker who does not physically work at a company location on a regular, consistent, or predictable basis (instead of only applying employers and workplaces operating entirely remotely as was previously the case). With the new guidance employers may continue to remotely inspect I-9 new-hire documents until the employee begins “non-remote employment on a regular, consistent, or predictable basis,” or until DHS terminates the policy, whichever is earlier.

Employers that have resumed normal business operations should review their Forms I-9 to ensure that follow-up physical document verification has taken place where the initial verification was done remotely. The DHS requires employers to physically inspect these documents “within three business days” of resuming “normal operations” for “employees who were onboarded using remote verification.” When physically inspecting presented documents after normal business operations have resumed, DHS instructs employers to enter “COVID-19” and “documents physically examined” with the date of physical inspection in the “Additional Information” field of Section 2 of the Form I-9. Employers that have not yet resumed normal business operations may want to prepare in-person physical document verification plans for Form I-9 completion when normal operations do resume.

Mid-Year Employment Law Update

On May 20, 2021, from 12:00-2:30 Jeff Dinkin and Jared Speier will be presenting a mid-year update on all the need-to-know developments for employers. This presentation will be a comprehensive update of important developments this year thus far, from COVID-19 issues to wage and hour cases and everything in-between. If you would like to attend please register here.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.

Please do not hesitate to reach out to us for assistance in dealing with the effects of the COVID-19 pandemic on your company.

Labor and Employment Practice Group

Jeff Dinkin

805.730.6820

jdinkin@stradlinglaw.com

Jared Speier

805.730.6804

jspeier@stradlinglaw.com

Intellectual Property Practice Group

Steven Hanle

949.725.4126

shanle@stradlinglaw.com