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

Video: YouTubeVimeo.
Podcast: Apple PodcastsGoogle PodcastsOvercastSpotifyStitcher.

As featured in #WorkforceWednesdayThis 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

Video: YouTubeVimeo.
Podcast: Apple PodcastsGoogle PodcastsOvercastSpotifyStitcher.

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.


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


Video: YouTubeVimeo.
Podcast: Apple PodcastsGoogle PodcastsOvercastSpotifyStitcher.

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

Video: YouTubeVimeo.
Podcast: Apple PodcastsGoogle PodcastsOvercastSpotifyStitcher.

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.

On June 15, 2021, New York State celebrated reaching 70 percent of its adult population having received at least one vaccination dose. As a result, the State lifted most of its New York Forward industry-specific COVID-19 guidelines—including social gathering limits, capacity restrictions, cleaning and disinfection, health screening, and gathering contact information for tracing—making them optional for most employers. The State has archived its industry-specific reopening guidance, which employers may, but are not required to, continue to follow[1].

What Obligations Remain for NY Employers?

Employers remain subject to guidance requiring them to prepare and maintain written business safety plans to prevent the spread of COVID-19 in their workplaces. In addition, as we most recently explained here, all employers will still have to comply with the HERO Act’s mandates, including the requirement that employers create and implement airborne infectious disease exposure prevention plans in accordance with forthcoming standards.

Recent guidance regarding workplace safety protocols for office settings remains recommended, though no longer required. Some business and sectors (including public transportation, public schools (K-12), and large-scale venues/events, such as professional sports arenas and entertainment sites), however, remain obligated to follow the guidelines.

The state continues to adhere to guidance from the Centers for Disease Control and Prevention (“CDC”), which currently states that while fully vaccinated individuals may refrain from masking and social distancing in most settings (exceptions include correctional facilities and homeless shelters), unvaccinated individuals continue to be responsible for wearing masks and maintaining social distance, even in settings where New York Forward guidance has been lifted. This means that employers can still impose safety requirements, such as requiring masks, or creating a segregated area where only fully vaccinated individuals may congregate without social distancing or masks, but most are not required to do so.

Governor Cuomo’s announcement states that unvaccinated individuals remain “responsible for wearing masks” and notes that CDC guidance still requires masks for unvaccinated persons.

What Is No Longer Required?

Although employers may keep safety protocols in place at their discretion, provided they are consistent with applicable law, such as the Americans with Disabilities Act, most workplaces in New York are now no longer required to maintain any of the following:

  • Point-of-Entry Health Screenings: Businesses no longer need to ask employees or visitors to their facilities whether they’ve experienced symptoms, been exposed, or have recently tested positive for COVID-19.
  • Physical Barriers at Workstations: Items such as Plexiglas shields, strip curtains, cubicle walls, or other impermeable dividers or partitions are no longer mandatory for work sites, although they remain advisable for workspaces that are within six feet of each other.
  • Measures to Reduce Bidirectional Foot Traffic: Previously recommended markers, such as arrows in narrow aisles and corridors, distance markers, and other such signage may be removed.
  • Rigorous Sanitization: While near-constant disinfection may no longer be necessary, frequent cleaning and sanitation, particularly in enclosed areas with high-touch surfaces and/or high traffic, remains advisable, especially in locations where the vaccination status of those present is unknown. Good handwashing and other personal sanitary measures should always be encouraged.

 The increased numbers of vaccinated New Yorkers and lifting of COVID-19 restrictions is a welcome development. Employers, however, must remain vigilant regarding their continued obligations to maintain a safe and compliant workplace.


[1] However, employers should be aware that, as of this writing, Governor Andrew Cuomo’s office had not given any indication that Executive Order 202 (“E.O. 202”), which declared a state of emergency on March 7, 2020, would be lifted before July 5, 2021, which is the date to which the most recent continuation of E.O. 202 extends. The continuation of the state of emergency furthers the governor’s authority to issue directives related to the pandemic.

As featured in #WorkforceWednesday:  This week, we look at the ways in which states are relaxing COVID-19 restrictions and discuss the much-anticipated Occupational Safety and Health Administration (“OSHA”) emergency temporary standard.

States Adjust COVID-19 Regulations to Align with CDC Guidance

States are relaxing or lifting COVID-19 regulations in different ways to align with the latest guidance from the Centers for Disease Control and Prevention (“CDC”), causing confusion for many employers. The CDC’s guidance does not provide a recommended mechanism for confirming vaccine status, which is also leading to different regulations in different states. Read more about changes in CaliforniaIllinois, and New York.

OSHA Releases COVID-19 ETS for Health Care

OSHA has released its much anticipated COVID-19 emergency temporary standard for health care workers. The standard requires health care employers to maintain social distancing policies as well as offer time off for employee vaccination and recovery. The agency also released guidance for other industries, outside of health care, to help maintain safety for unvaccinated workers.

See below for the video. For Other Highlights and more news, visit

Video: YouTubeVimeo.

On June 11, 2021, Illinois and the City of Chicago entered Phase 5 of its five-stage reopening plans. As part of the transition, Illinois released Executive Order 2021-12 (the “Phase 5 Reopening Order”) and new Phase 5 Guidance. Chicago also issued Phase 5 Recommendations and provided a helpful graphic that provides additional recommendations, which apply to all businesses. For Illinois and Chicago businesses, Phase 5 means a lifting of many COVID-19 restrictions across industries. Although businesses can start operating closer to normal, Phase 5 is a new normal that still includes social distancing and masking recommendations that should be on your Company’s radar.

The Illinois Phase 5 Reopening Order sets forth public health measures that Illinois businesses are urged to adopt to protect their employees, including:

  • Ensuring that employees who are not fully vaccinated practice social distancing and wear face coverings when social distancing is not always possible.
  • Ensuring that all spaces where employees may gather, including locker rooms and lunchrooms, allow for social distancing.
  • Ensuring that all visitors (including vendors) to the workplace who are not fully vaccinated can practice social distancing, but if maintaining social distancing at all times is not possible, businesses should encourage those visitors to wear face coverings.
  • Make hand sanitizer and sanitizing products available.
  • Maintain accommodations for vulnerable populations.
  • Continue to take all necessary steps to protect employees and customers by ensuring that any return to work plans adhere to all applicable public health guidance.

The Illinois Phase 5 Guidance further sets forth recommended prevention strategies applicable to all Illinois businesses, as follows:

  • Illinois Phase 5 Guidance replaces the previously issued industry-specific guidance by the Illinois Department of Commerce and Economic Opportunity. The Phase 5 Guidance no longer includes many components in the now-superseded guidance for offices, such as capacity limitations, health screenings, or providing COVID-19 related notifications to the local health department.
  • For indoor businesses where everyone present is not fully vaccinated, unvaccinated persons should wear a face covering and maintain six feet of social distance. However, fully vaccinated persons are no longer required to wear masks or socially distance, except in those circumstances specified in CDC guidance, including on public transportation, in “congregate facilities” (e.g., homeless shelters or correctional facilities) and in health care settings. For outdoor businesses, unvaccinated persons may choose not to wear a face covering when able to maintain a six-foot social distance while outdoors.
  • For indoor businesses where everyone present is fully vaccinated, face coverings and social distancing are not required for anyone (except, again, in those circumstances specified in CDC guidance, including on public transportation, in homeless shelters or correctional facilities and in health care settings).
  • Unvaccinated persons should wear face coverings in indoor and outdoor crowded settings.
  • Businesses are still advised to support social distancing to the extent possible (especially in indoor settings) and can require additional precautions. Businesses should also be supportive of employees and customers who choose to wear a face covering.

Chicago’s Phase 5 Recommendations track the language of the Illinois Phase 5 Guidance and similarly replace the City’s previously issued industry-specific guidance. Chicago’s Phase 5 Recommendations also advise businesses to ensure hygienic interactions (e.g., hand washing), post hygiene resources and guidance in spaces, adhere to cleaning standards to disinfect spaces, provide flexibility with sick leave and remote working and facilitate testing and tracking.

In addition, Mayor Lori Lightfoot went a step further when discussing the City’s masking requirements in Phase 5. In Mayor Lightfoot’s June 11 Press Release related to the Phase 5 reopening she states, “[i]f you are not fully vaccinated, you need to continue to wear your mask in all indoor settings.” So, unvaccinated persons in Chicago will need to keep their masks on for now indoors.

Although Illinois and Chicago are in Phase 5, the guidelines identify the cautious approach to reopening that businesses should carefully review. As Illinois and Chicago continue to progress through Phase 5, the applicable guidance and recommendations will evolve as well.