The Securities and Exchange Commission’s Whistleblower Program under the Biden administration has picked up where it left off under President Obama, aggressively enforcing Rule 21F-17(a) against employers whose policies may impede employees from communicating with the SEC.  On June 23, 2021, the SEC fined Guggenheim Securities, LLC (“Guggenheim”) for maintaining a policy that it contended impeded potential whistleblowers from communicating with the SEC by requiring employees to obtain permission before reporting securities violations. Even though the SEC was unaware of any instances in which a Guggenheim employee was prevented from reporting a potential securities law violation or in which Guggenheim acted to enforce the policy, the SEC nevertheless found that the company had violated Rule 21F-17(a).

THE SEC’S HISTORY WITH RULE 21F-17(a)

Implemented under the Dodd-Frank Wall Street Reform and Consumer Protection Act, SEC Rule 21F-17(a) provides that “[n]o person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement . . . with respect to such communications.” Under the Obama administration, the SEC made Rule 21F-17(a) enforcement a top priority, fining employers for requiring employees to sign confidentiality agreements in connection with being interviewed in an internal investigation; including bounty waivers, confidentiality provisions, and non-disparagement clauses in severance agreements; and attempting to unmask a whistleblower. Although the SEC under President Trump brought charges under Rule 21F-17(a) against a company for conditioning the return of money to investors who raised concerns on their entering into confidentiality agreements, Rule 21F-17(a) enforcement largely took a backseat to other initiatives. However, as the fine against Guggenheim shows, that hiatus is over, and the SEC is poised to return to aggressive enforcement of Rule 21F-17(a) under President Biden.

THE GUGGENHEIM CONSENT ORDER

The Guggenheim matter arose from an SEC investigation into whether the company’s compliance manual impeded employee access to the SEC in violation of SEC Rule 21F-17(a).  From April 2016 to July 2020, Guggenheim’s compliance manual contained a policy that prohibited employees from contacting regulators without prior approval from the company’s legal or compliance departments and that threatened disciplinary action for violating the policy. Upon hire and annually thereafter, Guggenheim required employees to sign an acknowledgement that they had received, had read, and would adhere to the compliance manual. Guggenheim further reinforced the policy by including it in the company’s annual compliance training.

Guggenheim denied impeding whistleblower access, pointing to the whistleblower rights disclaimer the company added to its Code of Conduct in July 2016.  The disclaimer provided that no company policy was “intended to prohibit [employees] (with or without prior notice to the Company) from reporting to or participating in an investigation with a government agency or authority about a possible violation of law, or from making other disclosures protected by applicable whistleblower statutes.”

The SEC rejected Guggenheim’s argument, reasoning that the company’s compliance manual undermined the whistleblower rights’ disclaimer. Specifically, the compliance manual contained a directive requiring employees to “follow the more restrictive of the policies or procedures, absent explicit direction to the contrary,” and the SEC considered Guggenheim’s prohibition on contacting regulators without prior approval the more restrictive policy. The SEC expressly acknowledged there was no indication that Guggenheim’s policy actually impeded any employee from communicating with the SEC about perceived violations of the securities laws or that Guggenheim actively enforced the restrictions on employee communications with regulators. The SEC found, however, that the mere fact that Guggenheim’s policy potentially impeded employee access to the SEC undermined and violated SEC Rule 21F-17(a).

After the SEC contacted Guggenheim about its investigation, Guggenheim removed the language at issue from its compliance manual and inserted language “affirmatively advising employees of their right to contact regulators” regarding potential securities law violations. It subsequently agreed to pay a penalty of $208,912 to resolve the SEC action, without admitting or denying the SEC’s findings.

EMPLOYER TAKEAWAYS

Guggenheim is a significant development because it demonstrates that the SEC is taking up the activist gauntlet it carried during the Obama administration in instituting administrative proceedings against employers that maintain policies or procedures that have the potential to chill or restrict an employee’s right to communicate with the SEC—even in the absence of any evidence that the policies ever actually had that effect or were ever enforced. To avoid being swept up in the SEC’s Rule 21F-17(a) enforcement initiative, employers should review, and if necessary revise, their employment policies, procedures, training materials and form agreements to ensure that they do not contain any language that might chill or deter employee whistleblowing activity, and may also wish to consult with counsel.

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Ashley Krezmien, a 2021 Summer Associate (not admitted to the practice of law) in the firm’s Boston office, contributed to the preparation of this post.

On July 15, 2021, the Internal Revenue Service (“IRS”) updated its Employee Plans Compliance Resolution System (“EPCRS”) by issuing Revenue Procedure 2021-30 (PDF). The EPCRS changes and revisions, which generally became effective on July 16, 2021, are beneficial to plan sponsors, participants and the retirement plan community.

The IRS has long provided a basic structure for the EPCRS and its underlying programs consisting of: (a) the Self Correction Program (“SCP”) – which allows plan sponsors to self-correct certain failures using pre-approved methods without making a submission to the IRS; (b) the Voluntary Compliance Program (“VCP”) – which requires a submission to the IRS; and (c) the Audit Closing Agreement Program (“Audit CAP”). When the IRS periodically publishes an update to EPCRS, such as Rev. Proc. 2021-30, the revisions are of interest to plan sponsors as they are mostly improvements and expansion of the programs to reflect changes in existing practices.

Noteworthy changes made by the IRS in Rev. Proc. 2021-30 include the following:

I. New Exceptions to Recoupment of Overpayments

The sponsor of a qualified plan that pays participants excess benefits to which they are not entitled (“overpayments”) is generally required to make the plan whole by either recovering the overpayments from participants or making corrective contributions to the plan. While EPCRS provides limited exceptions or exemptions to the requirement of recovering overpayments, the updated EPCRS introduces two new exceptions for defined benefit plans:

  • Funding exception correction method. Under the funding exception correction method, if the plan’s certified or presumed adjusted funding target attainment percentage (“AFTAP”) determined under Code Section 436 at the date of correction is equal to at least 100% (or, in the case of a multiemployer plan, the plan is not in critical, critical and declining, or endangered status), no action is required to recover excess amounts that have already been paid to participants.
  • Contribution credit correction method. Under the contribution correction method, the amount of overpayments may be reduced (but not below zero) by a “contribution credit.” The contribution credit equals: (A) the cumulative increase in the plan’s minimum funding requirements attributable to the overpayments beginning with (1) the plan year for which the overpayments are taken into account for funding purposes, through (2) the end of the plan year preceding the plan year for which the corrected benefit payment amount is taken into account for funding purposes; and (B) certain additional contributions in excess of minimum funding requirements paid to the plan after the first of the overpayments was made. If the amount of the overpayments is reduced to zero after the contribution credit is applied, no action is required to recover excess amounts already paid to participants. If, however, a net overpayment remains after the application of the contribution credit, the plan sponsor must take further action to reimburse the plan for the remainder of the overpayments.

II. Increased Small Overpayments and Excess Amount De Minimis Threshold

EPCRS does not require correction of small excess contributions or recovery of small overpayments. EPCRS raised the maximum amount of such small overpayments from $100 to $250.

III. Elimination of Anonymous VCP Submissions and the Creation of an Anonymous VCP Pre-Submission Conference

Effective January 1, 2022, instead of requiring a plan span sponsor that prefers to remain anonymous to make a submission regarding proposed corrections, the IRS made provisions for anonymous pre-submission conferences. This change allows plan sponsors to anonymously seek preliminary guidance on the issues underlying the proposed correction(s) without having to complete a full submission.

IV. SCP Correction Period for Significant Failures Extended by a Year

For failures where the plan is not operated in accordance with its terms (“operational failures”), the IRS identifies two classes of operational failures – “significant” and “insignificant.” Under EPCRS, sponsors can now use SCP to correct significant operational failures occurring in the three years (extended from two years) prior to the year in which the failure occurred, provided the other requirements of SCP are satisfied. Insignificant failures can still be self-corrected at any time.

V. Extension of Safe Harbor for Automatic Enrollment Failures

The IRS previously provided a safe harbor for correction of missed deferral failures for employees subject to automatic enrollment features in Section 401(k) or 403(b) plans. Under this safe harbor, which was set to sunset on December 31, 2020, no qualified non-elective contribution was required if certain requirements were met. EPCRS extends the sunset of the safe harbor correction method to December 31, 2023.

VI. Expansion of Ability under SCP to Correct Operational Errors by Retroactive Plan Amendment

One possible correction for an operational failure is to retroactively amend the plan so that its terms align with the way the plan was operated. Correction by plan amendment is a remedy available under VCP, and under SCP in limited circumstances. Prior to Rev. Proc. 2021-30, one of the requirements for retroactive correction by plan amendment under SCP was that the plan amendment had to result in an increased benefit, right, or feature, and that increase had to apply to all participants eligible to participate under the plan. EPCRS eliminates that requirement, thus expanding the ability to self-correct under SCP through retroactive plan amendments.

Additional changes may be forthcoming as the IRS also requested comments on Revenue Procedure 2021-30.

If you would like more information or have questions about these updates to EPCRS, please reach out to one of the authors or your Epstein Becker & Green, P.C. employee benefits lawyer.

As featured in #WorkforceWednesday:  This week, we look at the potential “game changing” legal and policy shifts coming to labor relations.

The Protecting the Right to Organize (PRO) Act, if enacted, would make the most significant changes to the National Labor Relations Act since the National Labor Relations Board (NLRB) was created in 1935. The PRO Act is a top priority of the union movement in the United States and is supported by President Biden, who claims to be the most pro-union president in U.S. history.  Attorney Steve Swirsky discusses the potential impact the PRO Act could have on employers. Beyond the PRO Act, Steve also looks at how Jennifer Abruzzo’s confirmation as NLRB general counsel could impact the agency’s litigation and enforcement agenda.

See below for the video and podcast links. For Other Highlights and more news, visit http://www.ebglaw.com/eltw219.

Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

Counties across California are making a detour on the road to easing COVID-19 restrictions.

Los Angeles County  

On July 16, 2021, Los Angeles County issued an Order of the Health Officer (“the Order”) that requires all persons to wear face masks while in all indoor public settings, venues, gatherings, and businesses (i.e., office workplaces, retail, restaurants, theaters, meetings), with limited exceptions.  In indoor settings where there is close contact with unvaccinated individuals, the Order recommends that people consider wearing a higher level of protection, such as two masks (“double masking”) or a KN95 or N95 respirator. In addition to requiring face masks of all patrons, hosts of public indoor settings must also clearly post visible and legible signage, regardless of whether employee(s) are present, at all entry points for indoor and outdoor settings to communicate the masking requirement.

The Order overrides the more permissive Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (“ETS”) regarding employee masking. Certain employees may be exempt from wearing a mask when performing specific tasks that cannot feasibly be performed while wearing a mask. This exception is limited to the period of time in which such tasks are actually being performed. Workers who cannot feasibly wear a mask while performing their work must be tested for COVID-19 at least twice per week, unless the employer is provided proof of the employee’s full vaccination against COVID-19, or proof of recovery from laboratory-confirmed COVD-19 within the past 90 days.

Bay Area Counties

On July 16, 2021, seven  Bay Area counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, and Sonoma—as well as the City of Berkeley, issued a joint statement recommending that everyone, regardless of vaccination status, wear face masks in public indoor spaces as an added layer of protection for unvaccinated residents from COVID-19, including the rapidly spreading Delta variant, and to easily verify that all unvaccinated people are masked in those settings. The joint statement urged businesses to adopt universal masking requirements for customers to provide protections to employees and customers, and also cited ETS’ face covering requirements in the workplace.

Signifying a growing trend across California, several other counties have issued similar statements strongly recommending that masks be worn indoors, regardless of vaccination status, including Monterey, Napa, San Benito and Santa Cruz counties, who issued a joint statement, and Yolo, Sacramento, Fresno, Santa Barbara and Ventura counties.

What Employers Should Do Now

 California employers should:

  • Review their COVID-19 safety protocols, keeping in mind that even where universal masking is recommended and not required, employers have an obligation to provide a safe and healthy workplace;
  • Revise or issue a temporary supplement to their written COVID-19 Prevention Programs to reflect any mandates, recommendations or guidance in their jurisdiction, particularly as to face masking; and
  • Update COVID-19 safety training materials to reflect new procedures, in accordance with any mandates, recommendations or guidance in their jurisdiction, particularly with regard to masking.

Most significantly, employers in Los Angeles County must implement a mask-wearing requirement for all employees in the workplace regardless of vaccination status.

As featured in #WorkforceWednesday:  This week, we focus on President Biden’s recent push to limit non-compete agreements and finalize key labor and employment appointments.

Biden Executive Order Seeks to Boost Competition

President Biden has issued an expansive executive order, which aims to boost competition across the U.S. economy, lower prices for consumers, and increase pay for workers. The order encourages federal action to ban or limit non-compete agreements, reigniting a policy debate which raged at the end of the Obama administration over when and how non-competes can be enforced. Learn more.

New Guidance on the NY HERO Act

The New York Department of Labor has published its model safety plans under the new HERO Act, starting the clock for all Empire State employers to adopt airborne infectious disease exposure plans. Read more.

Senate Moves Forward on Biden Nominees

A flurry of employment related federal nominees have recently been approved or advanced by the U.S. Senate.

See below for the video and podcast links. For Other Highlights and more news, visit http://www.ebglaw.com/eltw218.

Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

As featured in #WorkforceWednesday:  This week, we recap the U.S. Supreme Court’s term and its impact on employers.

U.S. Supreme Court Employment Law Decisions in Review (see video below)

The Supreme Court’s term ended on July 1, 2021. Attorney Stuart Gerson discusses two main cases from the term with labor and employment implications, Cedar Point Nursery v. Hassid and TransUnion LLC v. Ramirez. He also discusses the Court’s interest in ERISA, including a case in which the Court granted certiorari that employers may wish to track in the next term.

Biden Takes Action to Limit Non-Competes

On July 9, 2021, President Biden signed an Executive Order on Promoting Competition in the American Economy, which encourages the Federal Trade Commission to employ its statutory rulemaking authority “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” Executive Order, Section 5(g). Read more.

Deadline Approaching for NY Employers’ Model Safety Plans

The clock is ticking for New York employers to adopt workplace safety plans, in accordance with the NY HERO Act. The law imposes significant workplace health and safety obligations, including mandating that New York employers adopt airborne infectious disease exposure prevention plans. Learn more.

See below for the video and podcast links. For Other Highlights and more news, visit http://www.ebglaw.com/eltw217.

Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

On May 14, 2021, the United States House of Representatives passed the Pregnant Workers Fairness Act (“PWFA” or “HR 1065”) for a second time.  With a vote of 315-101, including support from all House Democrats and 99 Republicans, the PWFA now awaits Senate consideration.

As previously reported, the House had originally passed the PWFA on September 14, 2020 (“HR 2694”).  While members of congress have introduced versions of the PWFA each term since 2012, last year was the first approval.  After HR 2694 passed the House last September, by a vote of 329-73, the Senate did not consider it.  The post-election introduction of the current version of the PWFA, HR 1065, however, appears more likely to become law than its predecessor.  The current version has already received strong bipartisan support and, if considered, would likely receive strong support from Senate Democrats.   Additionally, the PWFA seems poised to pass because the Senate has authored its own version, S1486, which was introduced by a bipartisan group of senators before being sent to the Health, Education, Labor and Pensions Committee.  There are no substantive differences between HR 1065 and S1486, and the PWFA has captured widespread support from various worker advocates, civil rights groups, and business groups.

The PWFA largely tracks the accommodation requirements of the Americans with Disabilities Act (“ADA”).  Like the ADA, under the PWFA, employers with 15 or more employees would be required to provide reasonable accommodations to qualified pregnant employees and employees with pregnancy related medical conditions, unless the employer can show that such an accommodation would impose an “undue hardship.”  The legislation defines the term “qualified employee” as “an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position, except that an employee or applicant shall be considered qualified if—

  1. any inability to perform an essential function is for a temporary period;
  2. the essential function could be performed in the near future; and
  3. the inability to perform the essential function can be reasonably accommodated.”

Examples of a pregnancy-related reasonable accommodations include additional breaks to drink water, a stool to rest upon, limiting heavy lifting, and temporary reassignment to different work.  Also like the ADA, the PWFA requires that employers engage in an “interactive process” to determine the efficacy and feasibility of a requested accommodation.

Under the PWFA, it would be unlawful for an employer to deny reasonable accommodations to a qualified employee for the “known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee.”  The PWFA prohibits employers from requiring a qualified employee to: (i) take paid or unpaid leave if a non-leave reasonable accommodation can be provided; or (ii) accept an accommodation that is not “reasonable.”  The PWFA would also make it unlawful for employers to take an adverse employment action against a qualified employee who requests or uses a reasonable accommodation related to pregnancy, childbirth or a related medical condition, or to deny employment opportunities to a qualified employee because of their need for a pregnancy-related accommodation.

As with the ADA and other anti-discrimination statutes, the PWFA would also prohibit retaliation against any employees who seek pregnancy or pregnancy-related accommodations, engage in protected activity related to the PWFA, file a charge, or assist or participate in an investigation or proceeding under the PWFA.  The PWFA, however, provides an affirmative defense to employers who have made “good faith efforts” to engage in the interactive process with an employee who seeks reasonable accommodations under the PWFA.

If the PWFA is signed into law, the Equal Employment Opportunity Commission (“EEOC”) would be responsible for enforcing it and issuing interpretive regulations within two years of its enactment.  The rights and remedies afforded by the PWFA explicitly track those provided under Title VII of the 1964 Civil Rights Act (“Title VII”), including compensatory and punitive damages and attorneys’ fees.  If enacted, as currently drafted, the PWFA would become effective upon enactment.

As we previously discussed, the PWFA seeks to address some of the questions arising out of the Supreme Court’s decision in Young v. UPS, 135 S. Ct. 1338 (2015) and subsequent EEOC guidance regarding the accommodation of pregnant workers, and to clarify employer obligations to pregnant workers.

What This Means for Employers

In the event that the PWFA is enacted, employers will need to review and update their workplace policies and procedures to ensure compliance with the new law.  Because the PWFA largely tracks the ADA, employers should already be familiar with the requirements to engage in the “interactive process” and to determine the reasonable accommodations that will suit a pregnant employee’s needs, while avoiding undue hardship to the employer.  Many employers are considering remote work as a reasonable accommodation in the context of disability, religious, and pregnancy accommodations. Employers should also ensure that they are complying with any applicable state and local obligations concerning pregnancy accommodation.  For example, both New York State and New York City already have pregnancy accommodation laws.

Epstein, Becker & Green, P.C. continues to monitor the PWFA and other legislative developments relevant to employers and will provide timely updates as warranted.

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Naomi Friedman, a 2021 Summer Associate (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.

As featured in #WorkforceWednesday:  This week, we look at the increase in mandatory vaccination policies, a new rule for tipped workers, and a Supreme Court decision against organized labor.

Employers Implement Mandatory Vaccination Policies

Mandatory vaccine policies are on the rise. A month after the Equal Employment Opportunity Commission released updated guidance on mandatory vaccination policies, an increasing number of employers have started introducing these mandates. Courts are also weighing in—a Texas District Court recently affirmed a hospital’s mandatory vaccination policy.

DOL Brings Back Tipped Worker 80/20 Rule

The Department of Labor (DOL) has proposed a new rule that would once again regulate the amount of time a tipped employee can spend on non-tipped work. The Trump DOL previously withdrew the 80/20 rule. Learn more.

Supreme Court Rules Against Organized Labor

In a blow to organized labor, the U.S. Supreme Court has ruled that a California law allowing union organizers to meet with agricultural workers on an owner’s property is unconstitutional. The court found that the law amounts to a taking of the owner’s property without just compensation. Click for more.

See below for the video and podcast links. For Other Highlights and more news, visit http://www.ebglaw.com/eltw216.

 

Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

As featured in #WorkforceWednesday:  This week, we focus on evolving pandemic regulations at both the federal and state levels.

The Evolution of Workplace Pandemic Regulations

Federal agencies and states across the country are adjusting or removing COVID-19-specific rules, while releasing new regulations that have a longer-term horizon meant to be a blueprint for the next phase of COVID-19 and future pandemics. Examples of this phenomenon include the Occupational Safety and Health Administration’s release of its emergency temporary standard for health care and guidance for non-health care businesses as well as New York State’s enactment of the HERO Act and related amendments.

In the video below, attorney Liz Houghton discusses what employers can expect as we move forward to this new phase.

DOL Reviewing Overtime Rule

Secretary of Labor Marty Walsh recently made clear that the Department of Labor is reviewing the agency’s overtime rule, with the intention of raising the exempt employee salary threshold. Employers are now bracing for the likelihood of an increase during the Biden administration. Read more.

Affordable Care Act Upheld

Last week in its California v. Texas decision, the Supreme Court rejected states’ challenge to the Affordable Care Act on standing grounds, thus upholding the Obamacare law for a third time. Click for more.

See below for the video and podcast links. For Other Highlights and more news, visit http://www.ebglaw.com/eltw215.

Video: YouTube, Vimeo.
Podcast: Apple Podcasts, Google Podcasts, Overcast, Spotify, Stitcher.

As we previously reported, on June 9, 2021, the California Occupational Safety and Health (“Cal/OSHA”) Standards Board (“the Board”) withdrew its prior proposed revisions to the Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (“ETS”), effectively returning to the original ETS approved in November 2020.  A week later, however, on June 17, 2021, the Board approved revisions to the ETS (“Revised ETS”) which, among other things, align with current guidance from the California Department of Public Health (“CDPH”) and Centers for Disease Control and Prevention (“CDC”) with respect to physical distancing and the use of face coverings for vaccinated individuals.

An executive order, signed by Governor Newsom shortly after approval of the Revised ETS, allowed the regulations to go into effect immediately, bypassing the usual 10-day approval period by the Office of Administrative Law.

The Revised ETS apply to all employees and places of employment except for (1) workplaces with only one employee who does not have contact with others; (2) employees working from home; and (3) employees covered by the Aerosol Transmissible Diseases (ATD) regulation.

So, What’s New, and What’s Not?

Under the Revised ETS, employers must still, among other requirements, (i) maintain an effective written COVID-19 Prevention Program, (ii) provide employees with COVID-19 training; (iii) provide pay continuation to employees who are excluded from the workplace due to COVID-19 (with some exceptions); (iv) continue daily screening protocols; (v) continue cleaning protocols (with some modifications); and (vi) follow statutory law and mandatory guidance regarding tracing, tracking and response efforts to any COVID-19 cases or outbreaks in the workplace.

A number of prior requirements and restrictions, however, have been eased. Important changes in the Revised ETS include the following:

  • Fully vaccinated employees do not need to wear face coverings in the workplace (unless there is an outbreak), but may choose to do so and employers must provide face masks upon request.
  • Fully vaccinated employees and employees who are tested at least weekly no longer need to follow physical distancing guidelines.
  • Employees who are not fully vaccinated must still wear face coverings while indoors or in vehicles, subject to certain limited exceptions; physical distancing, however, is only required indoors and when the employee is not wearing a face covering.
  • Employers must provide respirators (e.g., N95 mask) upon request for voluntary use to all employees who are not fully vaccinated and who are working indoors or in vehicles with more than one person, irrespective of the vaccination status of the other person(s) in the office or vehicle (Cal/OSHA has indicated that a training video on respirator use and fitting is forthcoming);
  • No physical distancing or barrier requirements regardless of employee vaccination status, except during an outbreak (defined as 3 or more cases in an exposed group of employees within a 14-day period) or major outbreak (defined as 20 or more cases in an exposed group of employees within a 30-day period).  For purposes of identifying an outbreak or major outbreak, cases are limited to those among employees at the worksite.
  • Employers must offer COVID-19 testing at no cost to employees during paid working time to:  unvaccinated employees who have COVID-19 symptoms or have had close contact with a COVID-19 case at work; symptomatic vaccinated employees who had close contact with a COVID-19 case at work; and all employees in the case of a major outbreak at work.
  • COVID-19 testing during an outbreak requires immediate testing of unvaccinated, exposed employees and then again one week later; and thereafter, employers must make COVID-19 testing available once a week to all exposed employees in who remain until the outbreak concludes. Testing is not required for fully vaccinated exposed employees.
  • The required quarantine period following close contact with a COVID-19 case will not apply to employees (i) who are fully vaccinated and asymptomatic or (ii) who have recovered from COVID-19 within the last 90 days.

Documentation of “Fully Vaccinated” Employees

In order to take advantage of the less strict provisions relating to fully vaccinated employees, an employer must have documentation of an employee’s vaccination status based on the new definition of “fully vaccinated.”  An employer may opt to treat all employees as unvaccinated instead of having a documentation process.  Cal/OSHA has issued FAQs, which outline the following acceptable options to document vaccination status:

  • Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
  • Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
  • Employees self-attest to vaccination status and employer maintains a record of who self-attests.

According to Cal/OSHA FAQs, employers are not required to inquire as to an employee’s vaccination status.  If an employee’s vaccination status is unknown, the employer must treat the employee as unvaccinated.

What this means for employers 

California employers covered by the Revised ETS are strongly encouraged to:

  1. Review their COVID-19 safety protocols and decide what works best for their workplaces, keeping in mind that employers are permitted, but not required, to make exceptions for fully vaccinated employees;
  2. Revise their written COVID-19 Prevention Plans to reflect any changes they have made (an updated model plan from Cal/OSHA is anticipated); and
  3. Update COVID-19 safety trainings, to incorporate the changes in the Revised ETS, particularly for fully vaccinated individuals.

Additional Resources:  Cal/OSHA has issued FAQs and guidance titled What Employers Need to Know About the Recommended Revisions to provide further guidance on the revised ETS.

Employers are advised to consult legal counsel prior making any major changes to their protocols, policies and procedures.