CDPH, Cal/OSHA Update COVID-19 Order, Guidance

James W. Ward, Employment Law Subject Matter Expert/Legal Writer and Editor

On March 3, 2023, the California Department of Public Health (CDPH) updated its COVID-19 public health order and guidance following the end of the COVID-19 State of Emergency on February 28, 2023. CDPH updates include changes to isolation and quarantine recommendations, effective March 13, 2023, and face-covering recommendations, effective April 3, 2023.

Isolation and Quarantine

The updated CDPH order revises isolation and quarantine recommendations to align with the federal Centers for Disease Control and Prevention (CDC) isolation recommendations.

Individuals who have tested positive for COVID-19 should continue to isolate for five days but may leave isolation after five days, if they are feeling well, symptoms are improving and are fever-free for 24 hours. Notably, COVID-19 cases do not need to test negative after day five to leave isolation.

The order revises the definition of “infectious period” to align with the updated isolation recommendations. Infectious period is now defined as:

• For symptomatic confirmed cases, two days before the confirmed case had any symptoms (symptom onset date is Day 0) through Days 5–10 after symptoms first appeared AND 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved; OR
• For asymptomatic confirmed cases, two days before the positive specimen collection date (collection date is Day 0) through Day 5 after positive specimen collection date for their first positive COVID-19 test.

The California Division of Occupational Safety and Health (Cal/OSHA) COVID-19 Prevention Non-Emergency regulations specifically incorporates the CDPH’s definition of infectious period, so this latest revision will impact employers’ COVID-19 return-to-work policies — essentially making it easier for employees to return to work after five days if they have improving symptoms and are fever free.

Face Coverings

The CDPH also updated its face-covering guidance. The order specifies that individuals must continue to follow the requirements of CDPH’s face-covering guidance through April 2, 2023, after which they will become recommendations. The general community recommendations are still based on the CDC’s community level framework, but the new guidance will remove the face covering requirements for certain specified high-risk settings when it takes effect on April 3.

CDPH’s new guidance also specifies that after ending isolation (no fever without the use of fever-reducing medications and symptoms are improving), confirmed COVID-19 cases may remove their mask sooner than Day 10 with two sequential negative tests at least one day apart.

Though the CDPH is relaxing its masking guidance, Cal/OSHA’s COVID-19 regulation still specifically requires employees to wear face coverings in certain circumstances. For example, the regulation specifies that COVID-19 cases must wear a face covering in the workplace until 10 days have passed since the date symptoms began or their first positive test. While Cal/OSHA’s regulation specifically incorporates the CDPH’s definition of “infectious period,” the new CDPH guidance allowing COVID-19 cases to remove their masks after two sequential negative tests doesn’t appear to impact the regulation’s 10-day requirement, meaning employers will likely need to continue to follow the regulation’s current face covering requirements as written.

Cal/OSHA is expected to update their COVID-19 Non-Emergency Regulation FAQs to address the recent CDPH changes. Employers should continue to monitor Cal/OSHA’s FAQs for additional guidance and clarity on the impact of the latest CDPH updates.

Update 3/14: Cal/OSHA updated their COVID-19 Non-Emergency Regulation FAQs on March 13, 2023, to address the CDPH’s changes. Cal/OSHA’s revised guidance adopts CDPH’s definition of infectious period, meaning COVID-19 cases can return to work after five days without a negative test, so long as they are feeling well, symptoms are improving and are fever-free for 24 hours. However, Cal/OSHA’s guidance maintains that COVID-19 cases that return to work must wear a face covering for ten days after symptoms first appear or their first positive test. Employers should review the revised guidance to ensure they’re COVID-19 prevention policies are up to date.

California Wage & Hour in the News

Courtesy of Giuliana Gabriel, J.D., HR Compliance Director on Thursday, March 23, 2023   

The world of wage and hour is ever changing in California. Between case law and local ordinances, there have been some big developments lately! For a few quick updates, keep reading.

Fair Workweek Ordinances on the Rise: More cities throughout California are starting to adopt “Fair Workweek” ordinances, which require employers to provide advance written notice of an employee’s work schedule and have stringent recordkeeping requirements. Los Angeles is the latest city to adopt this ordinance, joining Berkeley, San Francisco and Emeryville. Generally aimed at larger businesses, the LA ordinance goes into effect on April 1, 2023, and applies to retail businesses with at least 300 employees (including franchises).

Employee Earned $200K/Year Still Owed Overtime: The U.S. Supreme Court recently found that an employee who was earning $200K/year was improperly misclassified and therefore was due overtime pay – yikes! In the case, Helix Energy Solutions Group, Inc. v. Hewitt, the company paid the employee on a daily-rate basis, starting at $963 per day, up to $1,341 per day (amounting to $200,000 annually). The Plaintiff argued that because he was paid on a daily basis he did not satisfy the salary requirement to be considered an exempt employee, and the Court agreed.

This is a good reminder that exempt employees must generally be paid their full weekly salary if they perform any work in the workweek. There are few exceptions when an employer may pro-rate an exempt employee’s salary.

Time Rounding Still Up in the Air: A few months ago, we updated you on the 2022 California case, Camp v. Home Depot USA, Inc., which called into question whether it is ever permissible for an employer to round time entries (e.g., clock in/out times, to the nearest five minutes, quarter hour, etc.). In the case, the Court of Appeal found that employers are not permitted to round when they can capture and have captured the exact amount of time an employee has worked during a shift. This represents a major departure from prior case law.

We should have a decision from the California Supreme Court (hopefully soon), as it granted a petition to review the case. Until we have further guidance, we recommend employers do not round, especially when they have a timekeeping system that tracks exact time. 

New Bereavement Leave Requirements for Private, Public Employers

Lisa Guzman, Employment Law Expert, CalChamber

What are the requirements of California’s new bereavement leave law?

With 2023 in full swing, many employers are reviewing and updating employee handbooks and policies. The new year should include adopting or updating an existing bereavement leave policy to comply with California’s new bereavement leave law.

Effective January 1, 2023, California requires employers t+6696+9o provide eligible employees with up to five days of leave upon the death of family member. The law applies to all private employers with five or more employees and all public employers. (Government Code Section 12945.7).

Eligibility/Qualifying Family Members

An employee is eligible for bereavement leave if they have been employed for at least 30 days prior to the beginning of the leave. A qualifying family member is a spouse, child, parent, sibling, grandparent, grandchild, domestic partner or parent-in-law as defined in the California Family Rights Act (CFRA). (Government Code Section 12945.7 (a)(1)(3)).

An employee can use bereavement leave for each qualifying occurrence. This means that an employee can take up to five days of bereavement leave for each death of a family member.

Timing of Leave

The five days of bereavement leave do not have to be taken consecutively; leave can be intermittent. However, the employee must complete the bereavement leave within three months of the date of the family member’s death. (Government Code Section 12945.7 (c) (d)).

Documentation Required

An employer can request that an employee seeking bereavement leave provide documentation to support the leave. Documentation may include: death certificate, published obituary, or written verification of death, burial or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution or government agency.

If documentation is requested, an employee must provide it to their employer within 30 days of the first day of leave. Any documentation provided by an employee must be kept confidential and cannot be disclosed, except to internal personnel, legal counsel or as required by law. (Government Code Section 12945.7 (f) (i)).

Payment for Leave

Whether leave is paid or unpaid depends on an employer’s existing bereavement leave policy.

If an employer does not have an existing leave policy, all five days may be unpaid. While on leave, however, an employee is entitled to use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

If a company has an existing bereavement leave policy, the law requires employers to provide leave according to their policy. If the employer policy provides less than five days of leave, the employer must provide additional bereavement leave so that an employee has no less than five days of bereavement leave.

For example, if an employer’s existing bereavement leave policy provides for three days of paid leave, an employee is entitled to take two additional days of unpaid bereavement leave and may use accrued paid leave for the unpaid days. (Government Code Section 12945.7 (e)).

Collective Bargaining Agreement Exception

The bereavement leave law does not apply to employees who are covered by a valid collective bargaining agreement if the collective bargaining agreement expressly provides for all the following (Government Code Section 12945.7 (k)):

• Bereavement leave equivalent to that provided by this law;
• Wages, hours of work and working conditions of employees;
• Premium wage rates for all overtime worked; and
• A regular hourly rate of pay at least 30% above the state minimum wage.

Anti-Discrimination Requirements

The bereavement leave law prohibits discrimination, interference or retaliation relating to an individual’s exercise of rights to bereavement leave. (Government Code Section 12945.7 (g)(h)).



Employers should review their employee handbooks and policies to ensure that any existing bereavement policies are updated to comply with the new bereavement leave law. If your company does not have a bereavement leave policy, now is a good time to add one to your employee handbook.

ABC Launches IRA Resources and Guidance Webpage:

ABC recently launched the IRA Resources and Guidance webpage to assist contractors and developers performing private clean energy projects under the Inflation Reduction Act.

The webpage features a collection of ABC and government guidance and resources to help member contractors maximize the potential opportunities presented by the IRA while navigating the unique difficulties posed by its expansion of prevailing wage and government-registered apprenticeship program requirements.

Explore ABC’s IRA webpage today at abc.org/ira. If you have additional questions regarding the IRA, please contact irafaqs@abc.org.

Employees May Bring PAGA Claims for California’s Mandatory Paid Sick Leave Law

Matthew J. Roberts, Labor Law Helpline Manager, Employment Law Counsel/Subject Matter Exp

Since its inception, California’s mandatory paid sick leave law was interpreted as only allowing the California Labor Commissioner or Attorney General to bring claims against employers for violations. However, on February 24, 2023, a California Court of Appeal held that the Healthy Workplaces, Healthy Families Act (HWHF) also allows for an employee to bring a Private Attorneys General Act (PAGA) claim against their employer (Wood v. Kaiser Foundation Hospitals, No. D079528 (Feb. 24, 2023.)).

Passed in 2014, the HWHF Act requires employers to begin offering paid sick leave to their employees at a minimum of three days or 24 hours per year — in addition to numerous other rules that employers must follow when administering the leave that create several potential avenues for employers to violate the law.

A nonexempt Kaiser employee brought PAGA claims against Kaiser alleging that, under the HWHF Act, Kaiser failed to properly pay employees for sick leave time and unlawfully denied employees the right to use sick leave in addition to alleging Kaiser violated the California Labor Code regarding its vacation policy.

PAGA claims arise from Labor Code section 2699 which was designed to allow employees to step into the shoes of the Attorney General to enforce Labor Code claims on behalf of themselves and all other “aggrieved employees” — resulting in civil penalties that are split between the government and the employees with attorneys receiving fees for their work.

As highlighted here, PAGA claims have long been a source of frustration for employers as attorneys leverage incredibly minor Labor Code violations resulting in huge awards that include outsized attorney fee awards for violations that resulted in minimal actual harm to the employees. Further, PAGA claims actually result in a greatly reduced average recovery for workers than when the workers bring their claims through the Labor Commissioner. For these reasons, employers are understandably wary of PAGA claims from private attorneys.

Unfortunately, the Wood court has opened a new avenue for PAGA claims through the HWHF Act — despite no clear statutory authority in the law.

Although California Labor Code section 248.5 provides for enforcement through either the California Labor Commissioner or Attorney General, the court — undeterred — reviewed the HWHF Act legislative history. They found that despite abolishing the ability for a worker to sue directly, the California Legislature left a statement in Labor Code section 245 that states the law does “not diminish, alter, or negate any other legal rights, remedies, or procedures available to an aggrieved person.” The court determined that if the Legislature had wanted to prohibit the use of PAGA for HWHF Act claims, they would have said so and instead chose to use the “aggrieved person” language, which is in line with PAGA language.



As a result, employers are now more exposed to private lawsuits over California’s mandatory paid sick leave law claims than they have been in the past. Employers need to audit and ensure that their paid sick leave policies are compliant with all HWHF Act provisions — including but not limited to accrual rates, permissive use and carryover of time.

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