What’s New?

On January 6, 2022, the California Division of Occupational Health and Safety (Cal/OSHA) announced its adoption of the Centers for Disease Control’s (CDC) and the California Department of Public Health’s (CDPH) revised guidelines for quarantine following a positive COVID-19 test. The new rules reduce most exclusion periods to five (5) days and require employees to test negative on or after day five (5) before returning to work. This rule clarifies any confusion as to whether the CDPH guidelines, adopted by CDPH on December 30, 2021, are applicable to California workplaces and goes a step further than the CDC and CDPH guidelines which do not require testing to end isolation.

What’s Changed?

Starting on January 17, 2022 the Los Angeles County Department of Public Health will require all employers to provide employees “who work indoors and in close contact with other workers or the public, with and require them all to wear a well-fitting medical grade mask, surgical mask, or higher-level respirator, such as an N95 filtering facepiece respirator or KN95, at all times while indoors at the worksite or facility.” This new mask order exceeds the Cal/OSHA mandate noted in “Three New Employment Laws Every California Employer Needs to Know Heading into 2022,” requiring that all California employers provide unvaccinated employees with face coverings of at least two layers and ensure that the unvaccinated employees are wearing the face coverings anytime they are in common areas of the workplace.

What Did the Supreme Court Decide?

On January 13, 2022, the Supreme Court issued a ruling blocking OSHA’s Emergency Temporary Standard (ETS) that would have required private employers with 100 or more employees to either implement a COVID-19 vaccination mandate or require unvaccinated employees to undergo weekly testing (at their own expense and on their own time) and wear masks in the workplace. Specifically, the majority, in an unsigned opinion, stated:

“Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life-simply because most Americans have jobs and face those same risks while on the clock-would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

Notably, the dissent from Justices Breyer, Sotomayor, and Kagan stated:

“When we [SCOTUS] are wise, we know not to displace judgment of experts, acting within the sphere Congress marked out and under Presidential control, to deal with emergency conditions. Today, we are not wise. In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed. Without legal basis, the Court usurps a decision that rightfully belongs to others.”

As a refresher, on January 7, 2022, the Supreme Court heard expedited oral arguments regarding a judicial stay of OSHA’s ETS. The U.S. Court of Appeals for the Sixth Circuit lifted a judicial stay that previously prevented the implementation of OSHA’s ETS for employers with 100 or more employees. OSHA responded by issuing new compliance dates, and the first compliance deadline, January 10, 2022, came and went before the Supreme Court issued this ruling.

As we all know, laws regarding COVID-19 are constantly in flux. Tune in to the FKKS Employment Law Group’s Webinar, Return to Work: COVID-19 Protocol Updates and Evolving DEI Issues, on Thursday January 27, 2022 for an in-depth look at policies affecting your workplace!