U.S. Supreme Court Continues Stay of Vaccine Mandate Except For Healthcare Employers, Revisions to Cal/OSHA ETS Take Effect and Changes to Settlement and Severance Agreements

Client Alert

January 2022

By: Jared W. Speier, Jeffrey A. Dinkin

Vaccine Mandate Put On Hold, Again

The Supreme Court ruled today that OSHA’s vaccination mandate for employers of 100 or is stayed pending a final review.  Next, with the stay in place, the Sixth Circuit Court will determine whether the vaccination mandate is constitutional.  When that determination will be made is uncertain, as is whether the Biden administration will propose more narrowly drawn vaccination mandates.  For the time being employers may still consider implementing their own vaccination mandates, however, they are not currently required to by the President’s mandate.

On the other hand, the Court lifted the stay on the vaccination mandate for healthcare providers.  This means that healthcare employers who participate in Medicare and Medicaid programs must ensure that their employees are vaccinated by February 28th in compliance with the Centers for Medicare & Medicaid Services.

Revisions to the Cal/OSHA ETS Require Updated COVID-19 Protocols

As discussed in our prior alert,  significant revisions to the Cal/OSHA Emergency Temporary Standards (“ETS”) are set to take effect tomorrow, January 14th.  While we discussed these changes in detail in our prior alert, here is a brief summary of significant changes:

  • Testing for Fully Vaccinated Employees.  The revised ETS requires that testing be provided to all employees who had a close contact regardless of vaccination status.  As a reminder, close contact means being within 6 feet of a COVID-19 case for a cumulative 15 minutes over a 24 hour period.  
  • Updated Face Covering Definition.  If a cloth face covering is used, the revised ETS requires cloth face coverings that “do not let light pass through when held up to a light source.”  Neck gaiter style face coverings may be used but they must have two layers of fabric or be folded to make two layers.  All face coverings must be “a solid piece of material without slits, visible holes, or punctures, and must fit snugly over the nose, mouth, and chin with no large gaps on the outside of the face.”  
  • Updated Definition of Fully Vaccinated. To be considered fully vaccinated under the revised ETS, two weeks must have passed since the employee received the last dose of the COVID-19 vaccine (not the booster) and the employer must document the dates the employee received the vaccine, making sure there was at least the minimum recommended time between shots if receiving a two shot vaccine like Pfizer or Moderna. 
  • New Requirements for Approved Testing. The ETS was revised to require that COVID tests cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.  This means that many of the at-home tests employees are using will no longer be effective for purposes of the ETS.
  • Updated Definition of Worksite. The definition of worksite now excludes “locations where the worker worked by themselves without exposure to other employees, or to a worker's personal residence or alternative work location chosen by the worker when working remotely.”   
  • Revised Notice Requirements.  The revised ETS still requires that employers provided notice of a COVID-19 case within one business day to all employees present at the worksite.  This notice must now also be provided to independent contractors and the authorized representative of the COVID-19 case, and the authorized representative of any employee present at the same worksite. (Authorized representative generally applies in unionized workforces).

Importantly, at present the ETS does not govern who must be excluded from work and when they can return after an exposure or a positive test.  Instead, these standards are now governed by the applicable California Department of Public Health (“CDPH”) guidance, as discussed in our prior alert. The CDPH guidance governing exclusion and return to work takes into account an employee’s booster status when determining whether the employee should be excluded from work.  Employers with mandatory vaccination policies may want to consider requiring booster vaccination to take advantage of the updated exclusion requirements discussed in our prior alert.

Employers should look to update their COVID-19 protocols to ensure they maintain compliance not only with the revisions to the ETS effective on January 14, but also to ensure they are in compliance with the applicable CDPH exclusion and return to work requirements.  Employers should also be on the lookout for our Alert about the decision of the U.S. Supreme Court on the Biden administration’s vaccination mandates – nothing yet from the Court as of the sending out of this Alert.

Required Updates to Severance and Settlement Agreements

Effective January 1, 2022, all severance and settlement agreements with employees must contain additional language permitting employees to disclose certain events in the workplace.   If you are using a form of agreement prepared by Stradling, stop using them and make sure the form of agreement is updated to include these new requirements.

With respect to severance agreements, employers must allow employees at least five business days to consider the agreement.  (If the employee is 40 years of age or older, to release federal age discrimination claims the employee has to be given 21 days to consider the agreement, 45 days in a group layoff.)    Additionally, the severance agreement must include an advisement that the employee has to right to consult an attorney regarding the severance agreement.  

Despite these new restrictions on severance agreements, the agreement can still include a general release and prohibit the disclosure of trade secrets or other confidential information unrelated to unlawful acts in the workplace as well as the amount of severance paid to the employee.

With respect to settlement agreements,  the agreement may not prevent or restrict the individual from disclosing factual information relating to claims of harassment, discrimination, or retaliation under the Fair Employment and Housing Act (“FEHA”), including claims based on race, sexual orientation, religion, color, national origin, ancestry, disability, medical condition, and age. This provision expands upon the previous restriction that prohibited settlement agreements from restricting individuals from disclosing factual information relating to claims based on sex.

With respect to both severance and settlement agreements, non-disparagement provisions in agreements that release a FEHA claim must notify the employee that the agreement does not prohibit the employee from discussing or disclosing unlawful acts in the workplace. The new law  requires that the agreement include specific language along the following lines: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

Jeff Dinkin and Jared Speier will be hosting an executive briefing on January
25th at 12 pm to discuss required revisions your COVID-19 protocols and how to implement them in the workplace. You can register by clicking here.

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying with 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.  Stradling also has resources to ensure you are in compliance will all employment related laws in California. We encourage you to reach out if you want to make sure you are in compliance with the applicable requirements. 

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

Corporate and Securities Practice Group

Ryan Wilkins

949.725.4115

rwilkins@stradlinglaw.com

Public Finance Practice Group

David Casnocha

415.283.2241

dcasnocha@stradlinglaw.com

Brian Forbath

949.725.4193

bforbath@stradlinglaw.com

Litigation Practice Group

Jason de Bretteville

949.725.4094

jdebretteville@stradlinglaw.com