Refresher on Cal/OSHA rules on exclusion from work; extension to I-9 flexibility policy and EEO-1 reporting deadline

Cal/OSHA rules on exclusion from, and return to, work

On August 31, 2021, we provided an update on the new Los Angeles County isolation and quarantine orders. These govern when, and for how long, persons who either have COVID-19 (isolation order) or were in close contact with a COVID-19 case (quarantine order) must stay away from others (i.e., stay at home) and when this period of isolation/quarantine can end. These orders are similar to, but not quite the same as, Cal/OSHA’s regulations (the Emergency Temporary Standards, or ETS), which govern when employees in California who either have COVID-19 or were in close contact with a COVID-19 case must be excluded from the workplace and when this period of exclusion can end.  (These requirements were reported in an earlier Tip of the Week).  Since employers must follow both the local and the state requirements, employers must follow the most stringent requirements to be in compliance.  Though the California Department of Public Health issued new guidance on September 1, 2021, which signals a willingness to shorten the periods of isolation and quarantine to be more in line with the CDC’s advice, Cal/OSHA has not revised their current standards to reflect this shorter time frame. Thus, employers in the state of California must continue to follow the more stringent requirements of the Cal/OSHA ETS.

Exclusion from work

“COVID-19 cases” must be excluded from work, regardless of vaccination status. A “COVID-19 case” in the ETS means:

  • A person who tests positive for COVID-19;
  • A person who has a COVID-19 diagnosis from a licensed health care provider;
  • A person who is subject to a COVID-19 order to isolate by a local or state health official; or
  • A person who died due to COVID-19 as determined by a local health department or included in county statistics.

“Close contacts” must be excluded from work except when (1) they were fully-vaccinated before the close contact and are asymptomatic, or (2) they recovered from COVID-19 in the last 90 days. “Close contact” in the ETS means being within six feet of a COVID-19 case for a cumulative total of 15 minutes or more in any 24-hour period.  This definition applies regardless of the use of face coverings, but does not include time when the employee was within six feet of the COVID-19 case, but was properly wearing a respirator, when required by the employer.

Return to work

COVID-19 cases who are asymptomatic may return to work when 10 days have passed since the date of their first positive test. COVID-19 cases who develop symptoms may return to work when:

  • at least ten days have passed since symptoms first appeared;
  • at least 24 hours have passed with no fever, without the use of medications; and
  • symptoms have improved.

Close contacts who are asymptomatic may return to work after 10 days have passed since the last known close contact. Close contacts who develop symptoms may return to work when the same conditions are met as for COVID-19 cases who develop symptoms.

Extension to I-9 Flexibility Policy and EEO-1 Reporting Deadline

The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) recently  announced an extension of the flexibility policy in complying with requirements related to Form I-9, Employment Eligibility Verification, due to COVID-19, until December 31, 2021.

Under that flexibility policy, the requirement that employers inspect employees’ Form I-9 identity and employment eligibility documentation in-person applies only to those employees who physically report to work at a company location on any regular, consistent, or predictable basis. If employees hired on or after April 1, 2021, work exclusively in a remote setting due to COVID-19-related precautions, they are temporarily exempt from the physical inspection requirements.

The Equal Employment Opportunity Commission recently announced that due to the continuing impact of the pandemic on business operations, the deadline to submit and certify 2019 and 2020 EEO-1 Component 1 Reports has been extended to October 25, 2021.

The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees to submit demographic workforce data, including data by race/ethnicity, sex and job categories.

 

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