Breaking News: CDC Mask Guidance Update and California Renews Mandatory Supplemental Paid Sick Leave for Covid-related Leaves

Over the weekend, the Centers for Disease Control (CDC) issued new guidelines which significantly loosen indoor masking requirements. CDC Director Rochelle Walensky stated: "[w]ith widespread population immunity, the overall risk of severe disease is now generally lower." The new, less restrictive standards apply to approximately 70 percent of Americans who live in areas with lower risks.

The updated CDC guidelines look at the following factors to determine which areas may loosen the masking restrictions:

• New COVID-19 cases per 100,000 residents in the past seven days.
• New COVID-19-related hospital admissions.
• The percentage of hospital beds occupied by COVID-19 patients.

It’s important to note that the CDC's guidance is just that – guidance. While the federal Occupational Safety and Health Administration (OSHA) has typically followed the CDC's guidance to a tee, California, including Cal/OSHA and municipalities, such as the Los Angeles County Department of Public Health, do not necessarily follow these recommendations.

The State of California eased its masking requirements as of February 15. Under the State regulations, masks are required for all individuals in the following indoor settings, regardless of vaccination status:

• On public transit and in transportation hubs
• Indoors in K-12 schools, childcare
• Emergency shelters and cooling and heating centers
• Healthcare settings
• State and local correctional facilities and detention centers
• Homeless shelters
• Long Term Care Settings & Adult and Senior Care Facilities

Under the state’s guidance, masks are required for unvaccinated individuals in indoor public settings and businesses at all times. Fully vaccinated individuals are recommended to continue indoor masking when the risk may be high.

However, Los Angeles County Department of Public Health has a more stringent standard. The County rules allow people vaccinated against COVID-19 to remove face coverings indoors at establishments that verify patrons' vaccination status, beginning on February 25, 2022. For business owners, the latest regulations put the burden on businesses to ensure that all customers who are permitted to enter the establishment are either: (1) fully vaccinated; or, (2) provide proof of a recent negative COVID test. Even after the information is verified, only fully vaccinated customers will be permitted to remove masks indoors.

Obviously, these restrictions, mandates and recommendations are ever-changing – and the onus is upon business owners to ensure compliance for employees, guests and patrons. Failure to follow the most restrictive guidance provided by a government agency can result in legal liability, fines, etc.

Mandatory Paid Sick Leave for Employers with 26+ Employees

On February 9, 2022, Governor Newsom signed an urgent new bill (AB 84) restoring the obligation for California employers to pay sick leave for employees who miss work due to COVID-19-related illness, quarantine, or while caring for others. The new obligations are similar to the requirements under the original Supplemental Paid Sick Leave (SPSL) bill from 2021, with a few minor revisions.

The law is retroactive and applies to any time away from work taken by employees after January 1, 2022. In other words, for any employee who has missed time from work since the beginning of the year for the reasons detailed below, business owners are required to review those attendance/absence records, go back and pay the employee for their missed time, or refresh any other paid time off banks (e.g. sick leave, vacation, general PTO) that the employee used in that period. The new paid sick leave benefits will continue until September 30, 2022.

Here’s what you need to know:

• The new paid leave requirement only applies to employers with 26+ employees.
• Two categories of paid leave are available (both are capped at 40 hours assuming full-time employment).
• STAGE #1: Looks a lot like last year’s SPSL:
  • The employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the federal Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace. If the employee is subject to more than one of the foregoing, the employee may use COVID-19 supplemental paid sick leave for the minimum quarantine or isolation period under the order or guidelines that provides for the longest such minimum period.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  • The employee is attending an appointment for themselves or a family member to receive a COVID-19 vaccination (limited to 24 hours per vaccination).
  • The employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccination that prevent the employee from being able to work or telework (limited to 24 hours per vaccination).
  • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
  • The employee is caring for a family member, as defined in subdivision (c) of Labor Code Section 245.5, who is subject to an order or guidelines described above or who has been advised to self-quarantine, as described above.
  • The employee is caring for a child, as defined in subdivision (c) of Labor Code Section 245.5, whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

• STAGE #2: Only applies if the employee or a family member for whom they are providing care tests positive for COVID-19. Employers may request appropriate documentation of a positive test, and deny leave if the employee refuses to test or provide documentation.
  • Employers must pay for employee tests, but it is unclear whether family tests also will be the employer’s responsibility.

The new legislation puts a cap on the maximum benefit amounts.: $511 per day, $5,110 total cap on payment (assuming eligibility for both Stage 1 and Stage 2 benefits). The Labor Commissioner has issued a model notice that must be posted in the workplace and electronically distributed to remote workers.

Finally, all eligible employers are required to show on paystubs the amount of COVID-19 supplemental sick leave the employee has used, just like last year. Please make sure that your paystubs are reflecting this information, to avoid further risk of liability.

As always, stay tuned for the latest changes to the COVID-19 regulations and mandates. As the old adage says, “ignorance of the law is not a defense”, so it is every business owner’s responsibility to remain informed and compliant, updating written policies and procedures in real time, as the law changes! For further guidance, or help in drafting or updating your policies, please make sure to reach out to competent legal counsel for advice specific to your business and industry.