Does anyone want to hear about the potential for a COVID-19 winter surge? Probably not. Unfortunately, experts warn that a surge is possible. The Centers for Disease Control and Prevention (“CDC”) warns about new immunity-evading Omicron subvariants, BQ.1 and BQ.1.1. CDC models show that these new variants, which just a few weeks ago accounted for no new COVID-19 cases, now make up a significant percentage of all new infections.
However, we have guided employers through several COVID-19 surges and know effective tips to keep your workforce healthy and safe.
One of the best tools to combat COVID-19 in the workplace is to encourage employees to stay up-to-date on their COVID-19 vaccinations and booster shots. All adults who have received their primary round of COVID-19 vaccine shots are now eligible for booster shots.
Current Vaccines and booster shots have been developed to better protect against evolving COVID-19 variants. Previous booster shots were “monovalent,” meaning they just included one component of the original COVID-19 strain. However, current boosters are “bivalent,” and include components of the original COVID-19 strain as well as components of the Omicron variant. The California Department of Public Health (“CDPH”) provides information about the different approved booster shots. The CDPH also provides a helpful chart about when to receive primary and booster shots.
Employers should consider encouraging their employees to receive the newly developed bivalent COVID-19 booster shot, which specifically targets the Omicron variant. The percentage of the population who has received this updated booster shot is extremely low. For example, only 8% of eligible LA County residents have received the updated bivalent booster dose.
One of the best ways to encourage employees to become fully vaccinated and boosted is to provide them with information about the primary vaccines and booster shots, and how they can schedule an appointment. Employers may also remind employees that they can use COVID-19 Supplemental Paid Sick Leave (“SPSL”), discussed below, to attend a vaccine appointment. Even if employees exhaust their SPSL allotments and other forms of paid leave, employers may consider providing their employees with paid administrative leave to attend a vaccine appointment.
Supplemental Paid Sick Leave
Employers should encourage employees who are sick or symptomatic to stay at home to reduce the risk of employees transmitting the virus in the workplace. One of the most effective ways to do this is to provide employees with information and resources about the available paid leaves should they develop symptoms associated with COVID-19 or contract COVID-19.
In September 2022, Governor Newsom signed into law a bill that extended the 2022 version of COVID-19 Supplemental Paid Sick Leave (“SPSL”) to December 31, 2022. As a result, all employers with 26 or more employees must continue to provide employees up to 80 hours of SPSL for employees who cannot work or telework because of COVID-19.
You can read more about SPSL here, as well as the September 2022 updates to SPSL here.
Paid Sick Time & Paid Administrative Leave
If employees exhaust their SPSL allotment, they are still entitled to access and utilize accrued paid sick leave. Employers should remind employees of the amount of paid sick leave that they have available and encourage employees to use such paid sick leave if they are sick or presenting symptoms associated with COVID-19, rather than come to work.
For employees who have exhausted all of their SPSL and all of their paid sick leave, employers have a couple options that they may want to consider: (1) provision of “negative accrual” of paid sick leave; and (2) provision of paid administrative leave.
Employers may consider allowing employees to accrue negative sick leave balances. In this situation, employees may take sick leave, and then work to repay the leave in subsequent pay periods. Alternatively, employers may consider offering paid administrative leave to employees who have exhausted all SPSL and paid sick time to ensure that sick employees do not come to the workplace.
Providing employees information about the leave to which they are entitled and considering options for the provision of discretionary paid leave will help prevent outbreaks in the workplace.
At this point, we all know tips to keep the potential COVID-19 surge at bay, and how to address surge concerns once COVID-19 numbers begin to rise. Here are reminders about effective preventative measures employers may consider:
Employers should be also aware that on January 1, 2023, statutory changes to the COVID-19 workplace notice requirements take effect. LCW issued a special bulletin with more information about these changes, which can be viewed here.
If there is another COVID-19 surge this winter, trusted legal counsel are available to assist employers with any COVID-19 related questions and information about how to prepare for a potential outbreak.