COVID-19 Paid Sick Leave and Federal OSHA Withdrawal of ETS

California Set to Renew and Expand COVID-19 Paid Sick Leave
Governor Newsom is expected to sign a new budget proposal in the coming weeks which includes provisions for a renewed requirement of paid time off for COVID-19 related illness, vaccination, and certain family care activities. This paid leave is meant to modify the previous SB 95 COVID-19 Supplemental Paid Sick Leave policy which expired in September 2021. The new leave is expected to apply retroactively to January 1, 2022 and to expire September 30, 2022.

Although limited detail is available at this time, reports suggest that under the budget proposal, employers with 26 or more employees will be required to provide up to 40 hours of paid sick leave to full-time employees who were sick with COVID or were off work to care for a family member who had COVID. Full-time employees would be eligible for an additional 40 hours of paid leave if they provide evidence of a positive COVID test for themselves or the COVID positive family member they are caring for. Part-time employees will also be eligible based on the number of hours they work in a typical workweek. Additionally, the proposal is expected to provide employees with an additional three days of the sick time which may be used for obtaining a vaccination, going to a vaccination appointment with a family member, or recovering from side effects after receiving a vaccination.

What This Means for Employers:
The attorneys at Barsamian & Moody are following these changes closely and will provide further updates as they become available. For now, we recommend that employers ensure that they have policies in place to flag COVID-19 related leave, including leave for the employee’s own illness, time off to obtain a vaccination or take a family member to obtain a vaccination (including a booster), time off for employees to recover from side effects following vaccination, and time off to care for a family member who has COVID-19. Employers will need to be able to look back to January 1 to determine who may be eligible for this COVID-related pay, so it is important that employers begin reviewing their records for these purposes and continue documenting COVID related leave moving forward.

Federal/OSHA Withdraws ETS and Will Proceed via Normal Regulations
Fed/OSHA has officially withdrawn its November 5, 2021 Emergency Temporary Standard (ETS) which would have required employers of 100 or more employees to implement a mandatory COVID-19 vaccination and/or testing policy.

This decision comes less than two weeks after the United States Supreme Court issued a stay of enforcement of the ETS, pending disposition of the case in the United States Court of Appeals for the Sixth Circuit. In its decision, the Supreme Court found that it was likely that the plaintiffs who opposed the ETS would prevail on their claims. While Fed/OSHA is withdrawing the ETS, they have indicated they are “not withdrawing the ETS as a proposed rule” and they intend to seek to impose the mandate via a regular rulemaking proceeding, not as an emergency measure. They still strongly encourage vaccination.

This means we will likely see more COVID-19 regulations from Fed/OSHA later this year. Such regulations will be challenged in court as the Supreme Court, particularly in light of the court saying that this type of mandate has to come from Congress, not a regulatory agency.

For additional information, please visit: COVID-19 Vaccination and Testing ETS Occupational Safety and Health Administration (osha.gov)

The above information was provided by Barsamian & Moody. The goal of this memo is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Barsamian & Moody at (559) 248-2360 for individual responses to questions or concerns regarding any given situation.

If you have any issues or concerns, please contact CFFA Director of Government and Public Policy Adam Borchard at (559) 226-6330.

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Source: Barsamian & Moody / California Fresh Fruit Association

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