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The Emergency COVID-19 Prevention Regulation adopted by Cal/OSHA late this month will go into effect as early as Monday, November 30, 2020. When it becomes effective, the regulation will be the most sweeping and demanding body of COVID-19-related requirements imposed to date on California employers. Employers should prepare now to comply.

Nearly All Employers will be Subject to the Regulation

The regulation generally will apply to all places of employment in California regardless of the type or size of the business. The following are the only exceptions to the regulation:

1. Places of employment with only one employee who does not have contact with other persons;

2. Employees working from home; and,

3. Facilities subject to the Cal/OSHA Aerosol Transmissible Disease (ATD) Standard, which mainly consist of certain healthcare service providers, laboratories, homeless shelters, drug treatment programs, correctional facilities, police and public health services.

The Regulation may become Effective as Early as November 30

The regulation will become effective upon the California Office of Administrative Law (OAL) filing it with the California Secretary of State. The OAL is free to file the regulation with the Secretary as early as Monday, November 30, 2020. Cal/OSHA should post notice here when the regulation becomes effective.

The emergency regulation will be in effect for 180 days and may be extended for two limited periods. Cal/OSHA has announced that it will issue interpretive guidance and frequently asked questions promptly. While the emergency regulation is in effect, Cal/OSHA may initiate its regular rulemaking process in order to put in place a permanent COVID-19 prevention regulation.

Summary of the Emergency Regulation

The 21-page emergency regulation consists of the following sections:

1. A mandate that employers prepare, implement and maintain detailed, written COVID-19 Prevention Programs;

2. Protocols required of employers in the event of three or more COVID-19 cases in a 14-day period or outbreaks in workforces as identified at the time by local health departments;

3. Protocols required in the event of “major COVID-19 outbreaks” (20 or more cases within a 30-day period) in workforces;

4. COVID-19 prevention in employer-provided housing; and,

5. COVID-19 prevention in employer-provided transportation to and from work.

COVID-19 Prevention Programs

The regulation requires all subject employers to “establish, implement and maintain an effective, written COVID-19 Prevention Program.” The Programs must include, for example, procedures for the following:

1. Identifying and evaluating COVID-19 hazards in the workplace. Under the regulation, such hazards are any condition, interaction, practice or process in the workplace that may expose employees to “potentially infectious material that may contain” Coronavirus. As a part of this step, employers must “conduct a workplace-specific identification of all interactions, areas, processes, equipment and materials that could potentially expose employees to COVID-19 hazards.” Employers also must develop and implement a process for screening employees for COVID-19 symptoms, maximize the quantity of outdoor airflow indoors and “conduct periodic inspections as needed to identify unhealthy conditions.”

Importantly, employers must allow for “employee and authorized employee representative (union) participation in the identification and evaluation of COVID-19 hazards,” according to the regulation.

2. Investigating and responding to COVID-19 cases in the workplace. Employer Prevention Programs must include “an effective procedure to investigate COVID-19 cases in the workplace” which satisfies detailed requirements set out in the regulation. Under the regulation, a case consists of “a person” in the workplace (apparently not necessarily an employee) who has tested positive by a viral test for COVID-19, is subject to an order to isolate by a local or state health official or died due to COVID-19.

The regulation also requires that employers provide COVID-19 testing free of charge to employees “who had potential” exposure to COVID-19 in the workplace.

3. Excluding COVID-19 cases from the workplace and maintaining their earnings. Employer COVID-19 Prevention Programs required under the regulation must exclude COVID-19 cases (as defined immediately above) from the workplace until return-to-work criteria set out in the regulation are satisfied. Under the regulation, employers are not allowed to require a negative COVID-19 test for an employee to return to work.

The employer Programs also must exclude employees with COVID-19 exposure from the workplace for 14 days from the last known exposure. Under the regulation, “COVID-19 exposure” consists of an employee being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period during a period the regulation defines the case as having been “high risk” for spreading the virus.

Further, the regulation requires that, when employees are excluded from the workplace because they are a COVID-19 case or had COVID-19 exposure, their employer must “maintain [the] employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job.” It is not clear from this language whether the provision means employers must provide job-protected leave or some type of paid leave in the period employees are excluded from the workplace.

The regulation contains additional language that may suggest the provision means that employers are to be provided paid leave: “Employers may use employer-provided employee sick leave benefits [to maintain the employee’s earnings] and consider benefit payments from public sources in determining how to maintain earnings, rights and benefits, where permitted by law and when not covered by workers compensation.”

In addition, the Cal/OSHA Standards Board wrote with respect to the provision: “[I]t is important that employees who are COVID-19 cases or who had exposure to COVID-19 do not come to work. Maintaining employees’ earnings and benefits when they are excluded from the workplace is important in ensuring that employees will notify their employees if they test positive for COVID-19 or have an exposure to COVID-19, and stay away from the workplace during the high-risk exposure period when they may be infectious.” (This commentary appears on pages 19-20 of the Board’s “Finding of Emergency” here.)

In any event, the meaning of the provision is not certain at this time. Regardless of whether the provision means some type of paid leave or simply job-protected leave, the requirement is obviously of importance to employers.

4. Return to Work Criteria. Employer Prevention Programs must reflect the return-to-work criteria set out in the regulation. The regulation establishes one set of criteria for COVID-19 cases with symptoms and another set of criteria for COVID-19 cases who tested positive but never developed symptoms. Unlike guidance issued by other agencies, the Cal/OSHA regulation prohibits employers from requiring that employees present a negative COVID-19 test in order to be allowed to resume working.

5. Correction of COVID-19 hazards in the workplace. The required COVID-19 Prevention Programs must provide for employers implementing “effective policies and/or procedures for correcting” COVID-19 hazards “in a timely manner based on the severity of the hazard.”

6. Training of Employees. The regulation requires that employers deliver training to employees on specified facts as now known about Coronavirus, physical distancing, the use of face coverings, handwashing, leave rights and other benefits available to employees impacted by COVID-19, the employer’s COVID-19 policies and procedures, etc.

7. Physical Distancing Employees, Providing Face Coverings, Etc. Employers’ Prevention Programs must ensure that all employees are “separated from other persons by at least six feet” when working, except only where either the employer can demonstrate that six feet of separation “is not possible” or employees are subjected to only “momentary exposure,” such as when people walk by one another. Employers’ Prevention Programs must include the employer providing “clean and undamaged” face coverings as specified by the regulations and ensuring that employees wear them.

8. Engineering and Administrative Controls, PPE. The Programs mandated by the regulation must provide that where fixed work locations cannot be separated by six feet, they be separated by “cleanable solid partitions that effective reduce aerosol transmission” between the employee and others. The Programs must also maximize the quantity of outdoor air provided indoors and satisfy cleaning and disinfecting standards in the regulation.

Employers are required to evaluate the need for PPE, such as gloves, goggles and face shields, and respiratory protection, and provide employees any needed PPE, respirators and eye protection.

9. Recordkeeping and Reporting. Employer Prevention Programs must comply with strict requirements set out in the regulation for reporting COVID-19 cases to local health departments and Cal/OSHA and for recordkeeping.

COVID-19 Infections, Outbreaks and Major Outbreaks

The regulation requires that employers take extensive action whenever three or more COVID-19 cases occur in the workforce within a 14-day period, a local health department identifies a workplace as the location of an “outbreak” or there are 20 or more COVID-19 cases in a workplace within a 30-day period (a “major outbreak”). The actions include weekly COVID-19 testing of all employees who were at the worksite with any of the infected employees. Testing is to continue on a weekly basis, free of charge to employees, until no new COVID-19 cases are detected in the workplace for a 14-day period.

In the event of such infections or an outbreak, the regulation also requires infected employees to be excluded from the workplace, employer investigation of the workplace for factors that contributed to the outbreak, evaluation of any COVID-19 hazards, employer notice to local health departments, etc.

Employer-provided Housing and Transportation

The regulation imposes detailed protocols designed to prevent Coronavirus transmission in employee housing and transportation to and from work provided by employers.

Considerations for Employer Action

I recommend that employers consider taking actions including the following:

1. Study the emergency regulation and prepare to comply. The regulation may be found here.

The regulation is dense and demanding. Despite its length, this post is only a brief summary of certain highlights in the regulation. Particularly given the current record-setting rates of infection throughout California, employers should expect Cal/OSHA to make enforcement of the emergency regulation an immediate priority. The consequence of violations may be significant as, aside from imposing penalties, Cal/OSHA has the authority to shut down facilities found to be in violation.

2. Involve experienced counsel in preparing your COVID-19 Prevention Program. The emergency regulation is unclear in a number of respects and the perspective of qualified counsel will likely be valuable in making the decisions needed to formulate an effective, compliant program.

3. Be alert to the wage and hour, leave, disability accommodation and other issues compliance with the regulation may raise. For example, excluding employees from the workplace as required by the regulation may trigger leave or paid sick leave rights under federal or California law. Time employees spend being screened to enter the workplace or to be tested may be compensable time, etc.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.

Effective November 9th, Los Angeles businesses may refuse service to any patron not wearing a mask.

Specifically, the new Ordinance states “any business owner or operator in the City of Los Angeles is authorized to refuse admittance or service to any person who refuses or fails to wear a Face Covering when on the premises of the business or when seeking or receiving service.”

A Face Covering must cover the nose and mouth and be secured to the head with ties/straps or wrapped around the lower face.

Several southern California cities also are now imposing fines for individuals without face coverings in public, including Santa Monica, Manhattan Beach, and West Hollywood.

Hopefully restaurants, retail, and other employers can stop having to police their patrons to protect their employees.  It used to be no shoes no service or no shirt no service – now, it is no mask no service.

As Covid-19 cases continue to rise, please stay safe!

On November 3, 2020, California voters passed Proposition 22, an exemption from AB5 for app-based drivers and couriers who use personal vehicles/transportation to provide on-demand services.  As detailed in previous posts here and here, Governor Gavin Newsom signed AB5 into law in September 2019.  Essentially, Proposition 22 filled a void caused by legislative inaction, and created a hybrid model between contractors and employees; essentially a “contractor-plus limited benefits” model.

AB5 expanded the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court.  Specifically, it applied Dynamex’s “ABC Test” to both California Wage Orders and the California Labor Code, creating the presumption that workers in California are employees, not independent contractors – unless an employer can satisfy a three pronged test known as the ABC test.  The ABC test presumes workers are employees, and not independent contractors, unless the employer can establish that: A) the company does not control or direct what the worker does, either by contract or in actual practice; B) the worker performs tasks outside of the hiring entity’s usual course of business; and C) the worker is engaged in an independently established trade, occupation, or business.

Under Prop 22, drivers offering services for rideshare and delivery companies are now exempt from the ABC test.  However, rideshare and delivery companies are now required to provide drivers certain benefits, including the following:

  • Minimum Wage: Rideshare and delivery companies must pay 120% of the local minimum wage for each hour a driver spends driving, but not time spent waiting (note that there are very complicated calculations for that minimum wage when driving through cities with different local wages);
  • Stipend Towards Health Insurance: For drivers who usually work more than 15 hours per week (waiting time not included), companies are now required to help pay for their health insurance;
  • Rest Time: Companies must limit app-based drivers from working more than 12 hours during a 24-hour period, unless the driver has been logged off for an uninterrupted six hours;
  • Hazard Insurance: Provide occupational accident insurance to allow drivers disability payments of 66% of their average weekly earnings during the previous four weeks before the injuries were suffered for upwards of 104 weeks; and
  • Other Requirements: Prohibit workplace discrimination and: (1) develop sexual harassment policies; (2) conduct criminal background checks; and (3) mandate safety training for drivers.

Notably, Prop 22 can only be amended if proposed changes are consistent with the new law’s purpose and if seven-eighths of lawmakers favor the amendment.

The passage of Prop 22 will likely cause other industries to campaign for independent contractor classification with voters or with the state legislature, especially given the margin in which Prop 22 passed by.   Alternatively, other industries may pursue similar models as their rideshare counterparts in order to argue that they also fall under the new law set forth in Prop 22.

As we discussed here, other industries have already been able to gain exemptions to AB5.  For example, earlier this September, the California legislature passed Assembly Bill 2257, which permitted musicians, fine artists, freelance writers, photographers, and translators exemptions from AB5 to continue working as independent contractors, rather than as employees.

Stay tuned as we continue to provide you with updates on AB5 as there will be sure to be even more changes to the law in the coming weeks and months.

[UPDATE: On November 19, 2020, subsequent to the post below, the California Occupational Safety and Health Standards Board adopted a 21-page Emergency COVID-19 Prevention Regulation, as anticipated by my post below.  A robust blog post on  the Emergency Regulation may be found HERE.]

On November 19, 2020, the board responsible for issuing Cal/OSHA regulations will vote on whether to adopt what would be the first Cal/OSHA regulation of employers concerning COVID-19, in particular. If adopted, the regulation will undoubtedly impose a substantial new layer of obligations on employers to prevent Coronavirus transmission in the workplace and require action when COVID-19 cases arise among employees.

The draft regulation is expected to encompass all workplaces in the state regardless of employers’ size, other than medical offices, certain laboratories, correctional facilities, homeless shelters, drug treatment programs and any employers that Cal/OSHA advises in writing must comply with a different regulation, namely, Cal/OSHA’s Aerosol Transmissible Disease standard.

The draft regulation remains out of public view at this time. Although staff members of the Occupational Safety and Health Standards Board (“Board”) almost certainly have the draft regulation complete or nearly complete by now, neither the draft nor information about its requirements have been released. Under the emergency procedure the Board is following in this instance, and unlike the regular procedure for issuing a new regulation, Cal/OSHA has not formed an advisory committee to receive input from employers, labor and other stakeholders on the proposed regulation well in advance of the Board vote. In fact, the draft regulation will not be released until five days before the Board vote, leaving little time for stakeholders to submit input to Cal/OSHA staff and for staff and Board members to take input into account.

A petition filed on May 20, 2020 with the Board jointly by Worksafe, an advocacy group for workers’ occupational safety and health, and the National Lawyers Guild initiated the process now underway. In particular, Worksafe and the Guild proposed a regulation that reflects the structure of California’s Injury and Illness Prevention Program. Specifically, they suggested a regulation requiring that employers identify in writing specific risks of transmission in the workplace, set out in writing their plan to minimize the risk of transmission and formulate written action plans to implement when actual or potential infections among the workforce arise.

It may be likely that the Board will both adopt on November 19 whatever draft regulation staff prepares and give employers only a short time before the new regulation becomes effective. First, the six members of the Board unanimously approved the petition seeking such a regulation over objections set out in a nine-page report by Board staff recommending against the adoption of any such regulation. The staff report argued that a regulation on the subject was unnecessary as staff found no evidence that businesses were generally out of compliance with COVID-19 guidance from the CDC, Cal/OSHA and other agencies. The report also found that a regulation would unnecessarily burden businesses and “no doubt result in confusion” on the part of employers when agencies update their guidance and new guidance “conflict(s) with the written regulation.” Secondly, given the continuing prevalence of COVID-19 in California, the Board likely feels pressure to take action.

The joint petition of Workforce and the Guild is here. The Board staff’s report and recommendation that the Board deny the petition, issued August 10, 2020, is here. The Board’s decision granting the petition and ordering staff to prepare the draft regulation for consideration at the Board’s November 19 meeting is here.

We are monitoring developments and will update you once the Board acts on the draft regulation.

Are you confused about the ever-changing reopening regulations in the different Bay Area cities ?  California released a new Blueprint to guide us on reopening due to COVID-19 but it may be too much to keep track of. Lucky for you, we’re keeping track to make it easier for you to figure out what you can and can’t do, how many people you can do it with and when this all gets updated! You can find the latest updates here.

How employers will need to defend California employment lawsuits, Labor Commissioner actions and even arbitrations must evolve come the New Year due to changes in the law that become effective January 1, 2021. In this post, I identify and explain five important developments that businesses and their employment defense counsel need to be aware of and prepare for.

Managing a New Risk: Attorney’s Fees Awards to Whistleblowers

California Labor Code section 1102.5 sets out a broad basis for employees and former employees to sue their employers for alleged retaliation. Specifically, the statute authorizes employees to sue their employer for allegedly having suffered retaliation for complaining of the employer’s violation of a federal or state statute or a failure to comply with a federal, state or local legal requirement. The statute also allows employees to sue where they allege they suffered retaliation for refusing to participate on the job in a violation or noncompliance with the law.

Until now, section 1102.5 did not provide for prevailing employees to be awarded their attorney’s fees. That has now changed. Effective January 1, 2021, the court may award employees who win section 1102.5 claims their reasonable attorney’s fees, in addition to the employee’s potential recovery of penalties and being awarded reinstatement, back pay and damages.

The ability of 1102.5 plaintiffs to seek and potentially recover their attorney’s fees is a sea change in California retaliation litigation. First, in 1102.5 cases that are strong on the merits, plaintiffs’ ability to seek attorney’s fees awards, which, alone, may total six figures, may alter how the employer and its counsel assess the risk of such lawsuits and influence their litigation and settlement strategy. In short, particularly in strong retaliation cases, whatever risk of loss the employer feels it has will carry a greater price tag given the exposure to a fees award.

Secondly, retaliation cases with relatively smaller damages potential or that are tenuous on the merits may be viable cases for contingency fee plaintiff’s counsel given a premium to the case value they may feel the threat of recovering fees adds. In other words, potential 1102.5 cases that plaintiff’s counsel may have turned down in prior years may be cases plaintiff’s counsel now take and prosecute given the potential recovery of attorney’s fees.

Notably, employers who succeed in defeating 1102.5 lawsuits are not permitted by the new provision to be awarded their attorney’s fees against the plaintiff.

All things considered, we will see more 1102.5 actions brought because of this new prevailing plaintiff attorney’s fees provision, as well as employers and their litigators altering, in some cases, their risk assessment and strategy for resolving the cases.

The new attorney’s fees provision is added by an amendment to California Labor Code section 1102.5 made by Assembly Bill 1947 found here.

Claimants Involved in Arbitration will be Represented by the Labor Commissioner

As of January 1, 2021, where the employer files a petition to compel arbitration of claims pending before the California Labor Commissioner, the Labor Commissioner “shall have the right to represent the claimant in proceedings to determine the enforceability of the arbitration agreement,” regardless of whether the enforceability will be determined by a court or in arbitration. The new provisions require, of course, that the claimant ask for representation by the Labor Commissioner. The Labor Commissioner’s representation will be at no cost to the claimant.

Secondly, where a “wage claimant [is] unable to have their claim” decided by the Labor Commissioner because a court has ordered the claim to be arbitrated, “the Labor Commissioner shall represent the claimant” in the arbitration. Two conditions must be satisfied before the Commissioner is obligated to represent the claimant in arbitration, namely, the claimant must be “financially unable to afford counsel” and, secondly, the Labor Commissioner “determines, upon conclusion of an informal investigation, that the claim has merit.”  The new provisions do not otherwise limit the Labor Commissioner’s obligation to represent claimants in arbitration, whether by a minimum dollar sum in dispute or otherwise.

The COVID-19 pandemic continues to delay the Labor Commissioner’s processing of cases, with the Commissioner not yet burdened by the obligation to represent claimants involved in arbitration. There is certainly a question as to how effectively the Labor Commissioner will be able to meet its new arbitration-related obligations, at least so long as the pandemic hinders operations. Eventually, however, claimants’ right to counsel provided by the Commissioner could have the consequence of employers and their counsel confronting more capable opposition to petitions to compel arbitration and prosecution of claims in arbitration, particularly where claimants would not be able to hire private counsel.

The changes summarized above are amendments to California Labor Code section 98.4 made by California Senate Bill 1384 found here.

Claimants Gain More Time to File Claims with the Labor Commissioner

The time in which claimants will have to file claims with the California Labor Commissioner for having been “discharged or otherwise discriminated against in violation of any law” under the Commissioner’s jurisdiction is extended from six months to one year effective January 1, 2021. As a consequence, in some number of cases, employers will not receive notice of such claims and their need to garner evidence for a longer period after the firing or other adverse action.

The extension of time is an amendment to California Labor Code section 98.7 that authorizes, in brief, the Commissioner to investigate such claims and file suit against the employer for relief including reinstatement. The amendment is made by California Assembly Bill 1947 found here.

The Sleeper! Successor Businesses will Face Liability for Unpaid Wage and Hour Judgments

Come January 1, 2021, businesses that take over the facilities, workforce, management or other features of an earlier business, or retain managers or owners from the earlier business, “shall be liable for any wages, damages, and penalties owed to any of the (earlier business’s) former workforce” pursuant to a final judgment, along with the earlier business remaining liable, as well, on the judgment. This new statute has received little or no public attention from other leading California employment defense practices. I am confident, however, that this development will prove to be enormously important.

Under the new statute, a second business is a “successor” to the earlier business (the “judgment debtor”) and will be subjected to liability on wage and hour judgments against the earlier business where the successor:

  1. “Uses substantially the same facilities or substantially the same workforce to offer substantially the same services” as the judgment debtor.
  2. “Has substantially the same owners or managers that control the labor relations as the judgment debtor.”
  3. “Employs as a managing agent any person who directly controlled the wages, hours, or working conditions of the affected workforce of the judgment debtor.”

Or,

4.  “Operates a business in the same industry and the business has an owner, partner, officer, or director who is an immediate family member of any owner, partner, officer, or director of the judgment debtor.”

To be clear, this means that the successor business will be liable on a judgment entered in a lawsuit in which the successor was not a defendant and did not have the opportunity to defend itself. The new provision is obviously intended to prevent employers from avoiding liability for wage and hour violations by transferring the business operation into another corporation, selling the assets of the business, passing the business off to a family member, etc.

For businesses that may have been inclined to consider such transfers, the new statute may, first, dissuade them and, secondly, influence how they defend and, potentially, resolve significant wage and hour lawsuits.

In transactions involving the purchase and sale of businesses or their assets, the new statute will make all the more critical conducting exhaustive due diligence in order to ensure the prospective buyer identifies all wage and hour judgments against the prospective seller and resolving the liabilities before purchasing the seller’s assets.

The statute is new California Labor Code section 200.3, which is added by Assembly Bill 3075 found here.

The Trap! Expansion of the California Family Rights Act

The California Family Rights Act (CFRA) will expand in respects of historic magnitude effective January 1, 2021. Employers large and small are at risk of not keeping up with the changes and finding themselves in litigation.

CFRA provides eligible employees up to 12 weeks of job-protected, unpaid family care and medical leave each 12 months. Effective January 1, private sector employers with as few as five employees will be subject to CFRA, as opposed to CFRA applying to only employers of 50 or more employees as has been the law. Smaller employers are at risk of not fully understanding the scope and intricacy of their new obligations before the changes take effect.

CFRA will also require that eligible employees be given leave to care for ill grandparents, grandchildren and siblings for the first time as of January 1.

A more thorough explanation of the changes coming to CFRA effective with the New Year is provided in my post found here.

Closing

Being aware of simply the upcoming changes in California employment law is one thing. Appreciating how those changes should influence risk assessment and strategy in litigation is a different dimension. I hope these illustrations are helpful as you prepare for the New Year.

It may be the season for a pumpkin latte and too much candy, or finally breaking out those soft sweaters and fuzzy slippers as the weather starts to chill (even in Los Angeles).  But it is also the season for new lawsuits.  In fact, after 25 years of practice, experience tells me that new lawsuits are often filed toward the end of the calendar year.  The stakes are even higher this year due Covid 19’s devastating impact on so many sectors of the economy.  Desperate times for workers mean more lawsuits.  And California has a robust plaintiff’s bar ready to take on new matters.  So now more than ever, employers must be vigilant and ready.

Luckily, there are proactive steps California employers can take, and many of them are relatively straight-forward.  Some of this advice isn’t new, but if everyone was following it, I wouldn’t feel compelled to re-post!

First, update your policies and practices each year (or at least every two years).  Too often I see employers with handbooks, postings, or policies that haven’t been updated in five years, or sometimes more.  Just because the arbitration agreement or policy was compliant in 2012 doesn’t mean it is compliant in 2020!  Especially in California, things change; the law evolves.

Second, when you make a termination or layoff decision, document your rationale at the time the decision is made.  Ask yourself:  If I were this employee would I think this is fair, and if not, why not?  Put yourself in the employee’s shoes.  And then make sure all contemporary documentation answers those questions.  For example, take the time to research others terminated for similar reasons to show that this employee was treated consistently.  If the employee complained about something a long time ago, and that issue was resolved, make sure that is all documented and have clear evidence that it was not a consideration for the separation decision.  I am not a fan of those ultra subjective stack rankings as justification for layoff; I prefer real evidence on performance, like evaluations or sales figures.  Oh, and if the employee contests the termination or layoff (even after the fact), investigate it, and document what you looked into and found.

Third, if you are re-hiring, reinstating, or even hiring new employees, please review this helpful alert by my partner, Jeffrey Horton Thomas, with five practical tips on how to plan defensively.

Fourth, want to avoid class actions?  I have blogged on that one too.  Here’s how.

Finally, when an employee requests their personnel file and pay records, please be thoughtful before you provide the information.  Too often I see HR sending random information, and forgetting to include what is really important (like the arbitration agreement or the termination documents).  Remember, the employee or their attorney, is looking for problems.  So don’t make it easy for them!   Provide a full picture of what happened and why.  You can even give some additional helpful documents, nothing prevents that.  Please don’t give time records with the pay records.  It isn’t required by statute!  And finally, make sure to retain a copy of what you sent.

I know many of us are ready for 2020 to end.  As employers, let’s limit any further damage from 2020 and be proactive and ready for 2021.

Employers in California are subject to a layer cake of requirements to report suspected and diagnosed cases of COVID-19 in their workforce. Federal, state and local agencies each impose obligations differing from one to the other and most setting short deadlines for reporting. This blog post provides the information employers most need to know regarding the requirements in place statewide and in Southern California, in particular, along with suggested actions employers should consider in order to be prepared to comply.

[UPDATE AS OF OCTOBER 27, 2020:  The California Department of Public Health posted on October 16 and then updated on October 19, 2020, Q&A Guidance on complying with AB 685, which requires reporting of certain cases to local health departments, employees, any union representative and the employer of subcontracted employees.  The guidance may be found here and the Department’s definitions posted October 16, 2020 may be found here.]

Report COVID-19 Illness to Cal/OSHA — No Later Than Within Eight Hours

Employers must report to Cal/OSHA any “serious injury or illness” of an employee in California, including COVID-19, where the illness occurs in the workplace or in connection with work and requires inpatient hospitalization, according to the governing regulation. Hospitalization for any period satisfies that part of the requirement, although where the employee is hospitalized for only medical observation or diagnostic testing the employer is not required to report the case to the state.

Employers are required to report to Cal/OSHA any case of an employee suffering COVID-19 that qualifies as “serious illness” immediately, but no later than within eight hours of learning of the case or when they should have learned of it. Employers must report such incidents to their local Cal/OSHA district office.

Where an employer has cause to believe an employee’s death in the workplace or in connection with work was due to COVID-19, the employer is also subject to the reporting obligation.

Suspected Transmission of Coronavirus at Work

The obligation to report to Cal/OSHA is broad. For example, employers are not required to report only if the employee has been diagnosed with COVID-19 or the employer has confirmation that the employee contracted the virus at work. More broadly, employers are to report to Cal-OSHA where they have only “cause to believe” an employee may have contracted Coronavirus at work (and has been hospitalized), according to California Department of Industrial Relations guidance.

Factors employers should consider in determining whether they have “cause to believe” an employee may have contracted COVID-19 through work include:

— Whether there have been multiple cases of COVID-19 among workers at the place of employment.

— The extent to which the employee had contact through work with others, particularly the public.

— The extent to which the employee was protected by physical distancing and other government-approved COVID-19 prevention protocols in the workplace.

— Whether the employee had work-related contact with anyone who exhibited symptoms of COVID-19.

Suspected Infection Off the Job, but Illness at Work

Where an employee experiences serious illness while at work, including suspected COVID-19, but the employee likely contracted the virus off the job, the employer is also subject to the reporting requirement, according to the Department. In other words, employers are required to report cases of an employee exhibiting potential COVID-19 at work (so long as the employee was also hospitalized as discussed above) even where the employer has no evidence the illness is work-related. The Department’s position is that such circumstances constitute serious illness “occurring in” the workplace, and are thus subject to the reporting obligation.

Cal/OSHA prefers that employers report cases of COVID-related illness or death to the local Cal/OSHA district office by phone, but also accepts reports by email to caloshaaccidentreport@tel-us.com. An online tool for employers to identify their local office Cal/OSHA district office may be found here.

Report COVID-19 Death to OSHA — Within Eight Hours

Federal law requires that employers report to the Occupational Safety and Health Administration (OSHA) the death of any employee due to COVID-19 that occurs within 30 days of the employee’s exposure to Coronavirus at work. Employers must report such cases within eight hours of knowing both that the employee has died and that the cause of death was a work-related case of COVID-19.

Report COVID-19 Hospitalization to OSHA – Within 24 Hours

Employers must report to OSHA any employee having been admitted to a hospital as an in-patient where the hospitalization was due to COVID-19 and occurred within 24 hours of the employee’s exposure to Coronavirus on the job. Employers must make such reports to OSHA within 24 hours of learning both that the employee was in-patient hospitalized and that the reason for the hospitalization was exposure to the virus on the job.

Employers may report COVID-19 hospitalizations or deaths to OSHA by calling the nearest OSHA office, calling the OSHA 24-hour hotline at 1-800-321-6742 or online here.

On September 30, 2020, OSHA updated its Frequently Asked Questions on employer reporting obligations.

Report COVID-19 “Outbreak” to Local Public Health Departments – Within 48 Hours

As of January 1, 2021, employers will be required to report to local public health agencies any “outbreak” of COVID-19 in their workforce. For purposes of the new law, an “outbreak” in non-healthcare or non-residential congregate workplaces means three or more laboratory-confirmed cases of COVID-19 among workers who live in different households within a two-week period. Employers must make their reports to their local health department, which is most often the county health department, where the employees’ worksite is located, as well as to the local health departments where each of the diagnosed employees live. This requirement applies to all employers operating in California, regardless of how few or many employees they have.

My blog post last month more fully explains these new state-law requirements and gives action items to consider in preparing to meet these requirements. On October 7, 2020, the California Department of Public Health updated its COVID-19 guidance, including on the obligation to report outbreaks. The Department released on September 25, 2020 a helpful, 36-page “COVID-19 Employer Playbook” that provides guidance on the reporting obligation and other issues.  Also see October 27, 2020 Update at the top of this post.

Southern California Reporting Requirements

Los Angeles County

Owners, managers and operators of businesses in Los Angeles County who know of three or more cases of COVID-19 among their employees must report the outbreak to the Los Angeles County Department of Public Health under the County Public Health Officer’s current order, most recently updated on October 6, 2020. The order does not set a specific deadline by which businesses must report to the Department. Reports are to be made by phone to the Department at (888) 397-3993 or (213) 240-7821. Violations of the County order may be prosecuted as misdemeanors, according to the order.

San Diego County

Employers operating in San Diego County must “promptly notify” the County Health and Human Services Agency when they become aware of any employee with a laboratory-confirmed diagnosis of COVID-19, pursuant to the County Public Health Officer’s order updated effective October 10, 2020. Reports may be made online here or by calling 888-950-9905. Employers must report the name, date of birth and contact information of the employee. Violations may be prosecuted as misdemeanors, according to the order.

Orange County

Guidance released by Orange County provides that employers “should report” to the County Health Care Agency any cluster of three or more COVID-19 cases that occurs at a worksite within a two-week period. Reports are to be made by calling 714-564-8448. As of this posting, the Orange County Health Officer’s order, revised September 8, 2020, does not include a provision requiring employers to report COVID-19 cases among their workforces to the County.

Ventura and Riverside Counties

Likewise, as of this posting, the orders of Ventura County and Riverside County do not require employers to report COVID-19 cases among their employees.

Action Items to Consider

Takeaways from this post should include that a case of Coronavirus in the workforce may require an employer to make judgment calls about its reporting obligations within short deadlines and may require the employer to report any single case to more than one agency. In addition, employers should expect agency requirements to continue to evolve.

With those points in mind, action items employers should consider include:

  1. Identify now the agencies to which your organization may bear a reporting obligation. Make sure that someone in the business is responsible for monitoring for changes to the applicable reporting obligations or that you have engaged your employment counsel to do so.
  2. Implement systems to ensure that the information about your employees that may trigger an obligation for your organization to report is reaching the appropriate decision makers within the business and promptly.
  3. Train supervisors, managers and human resources personnel on the information and events that may trigger a reporting obligation that applies to your business.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.

California employers with 100 or more employees are now required to file with the state detailed annual reports setting out demographic, pay and position information on their employees. As for the purpose of requiring the reports, Senate Bill 973 pulls no punches: state government agencies will use the reports against employers for “targeted enforcement” of California pay equity, anti-discrimination and wage and hour laws. Covered employers must file the first of their reports no later than March 31, 2021. Governor Gavin Newsom signed SB 973 into law last week.

The new requirements are similar in respects to the federal requirement to file EEO-1s. However, unlike the federal EEO-1 process, which has been troubled in recent years, SB 973 requires that employers feed data that may appear unfavorable directly to California state agencies that are among the most aggressive state agencies in the U.S. in enforcing employee-protective legislation. Employers must place a corresponding level of attention and priority on managing their reporting under SB 973.

The Employers Subject to the Reporting Requirements

Private sector employers that both have 100 or more employees and are required by federal law to file an annual Employer Information Report (EEO-1) are subject to the new California requirements. A summary of the federal requirements for who must file an EEO-1 is here. As you may know, the U.S. Equal Employment Opportunity Commission (EEOC) temporarily suspended the obligation to file EEO-1 data, in part, for reporting year 2019 as a step in alleviating businesses of administrative burdens during the Coronavirus pandemic. The new California legislation does not include any such reprieve; employers subject to SB 973 must file their California reports in full for reporting year 2020 no later than March 31, 2021.

The Data Employers must Report

The new legislation requires that covered employers file annually with the California Department of Fair Employment and Housing (DFEH) a “pay data report.” The report will set out the required information for all employees who were on the employer’s payroll in any single pay period of the employer’s selection in the last three months of the prior calendar year, referred to as the “reporting year.” For example, for its first annual report due by March 31, 2021 for reporting year 2020, a covered employer will select one payroll period within the timeframe from October 1 through December 31, 2020 as the period to be the subject of its pay data report – the “snap shot” payroll period.

The pay data report must set out, for employees on the payroll in the snap shot period, the number of employees by race, ethnicity and sex in each of the following 10 job categories: (1) executive or senior level officials and managers; (2) first or mid-level officials and managers; (3) professionals; (4) technicians; (5) sales workers; (6) administrative support workers; (7) craft workers; (8) operatives; (9) laborers and helpers; and, (10) service workers. All employees on payroll in the snap shot period – full and part-time, exempt and non-exempt — must be included. SB 973 does not define or provide descriptions of these job categories. The 10 job categories, however, are the same categories around which the federal EEO-1 is organized. EEOC guidance for understanding how that agency construes the job categories for purposes of the EEO-1 found here.

Apart from the demographic information of employees in each job category, SB 973 also requires that the California pay data reports set out the number of employees, by race, ethnicity and sex, whose annual W-2 earnings for the reporting year fall within each of the pay bands used by the U.S. Bureau of Labor Statistics. The employer must also include the total number of hours worked by each employee counted in each pay band during the reporting year.

Importantly for employers, the pay data reports will include a section “to provide clarifying remarks” regarding any data employers report. This provision is likely to become an important tool for employers who see strategic advantage in placing required data in context or volunteering additional information in order to attempt to pre-empt an agency drawing mistaken conclusions from data disclosed in a particular pay data report.

SB 973 permits employers to submit their federal EEO-1 to the state as compliance with the new state legislation so long as the EEO-1 contains “the same or substantially similar” information required by SB 973.

Employers with Multiple Production Sites

Employers with more than one “establishment,” meaning “an economic unit producing goods or services,” must file one pay data report for each establishment and a consolidated report that covers all employees at all sites. An employer with manufacturing sites, retail outlets, or facilities providing services to consumers in different cities or from multiple locations within a city are required to file one report for each location plus a consolidated report encompassing all employees at all locations. By its terms, SB 973 covers all such “establishments,” regardless of how many or few employees work there.

While federal law requires covered employers to file an EEO-1 specifically concerning employees at their headquarters, SB 973 is silent on whether the new California law views a company headquarters – not itself directly “producing goods or services” – as an “establishment” with respect to which a pay data report must be filed.

California Agencies will Use the Reports in Enforcement Actions against Employers

Discrimination and Pay Equity Actions

Employers will file their pay data reports with the California Department of Fair Employment and Housing, the agency charged with enforcing California state laws barring unlawful discrimination in employment. The new legislation clearly contemplates the DFEH using pay data reports in investigations and enforcement actions against employers under the California Fair Employment and Housing Act (FEHA), the state-law scheme barring discrimination in employment on grounds including race, ethnicity and sex.

In an important development that is being widely overlooked by others writing on SB 973, the new legislation also for the first time empowers the DFEH to accept, investigate and prosecute complaints against employers for violations of the California Fair Pay Act. The Fair Pay Act requires, in brief, that employers pay employees equally for substantially similar work, regardless of an employee’s sex, race or ethnicity. This aspect of the new legislation is a significant expansion of DFEH jurisdiction. Employers and their counsel will now find themselves defending pay equity claims under the Fair Pay Act before the DFEH, a new front for pay equity cases in California. Further, SB 973 permits the DFEH to use pay data reports in investigations and administrative enforcement actions against employers for alleged violations of the Fair Pay Act.

Wage and Hour Actions

The new legislation authorizes the California Labor Commissioner’s Division of Labor Standards Enforcement (DLSE) to obtain employers’ pay data reports from the DFEH on request – and without telling the subject employers. The DLSE enforces California wage and hour law including claims for violations of state minimum wage law and for unpaid wages, unpaid overtime, etc. SB 973 makes clear that the DLSE is given access to the reports in order to use them in investigations and enforcement actions against employers.

Employers should expect the DFEH and DLSE to audit pay data reports looking for what appear to be patterns by industry or within a specific business of discrimination in hiring; glass ceilings impairing the promotion of employees because of their gender, race or ethnicity; or disparities in pay for similar work because of such characteristics. Employers, likewise, should expect the agencies to prioritize industries and employers for investigation and enforcement where pay data reports, alone or along with information from other sources, give the appearance of unlawful employment practices.

Employer Reports are to be Confidential – with Limits

The new legislation designates “individually identifiable information” disclosed on employers’ pay data reports as “confidential” and not to be made “public in any manner whatever,” unless otherwise allowed by the new law. “Individually identifiable information” under the new law means data “that is associated with a specific person or business.” The phrase “or business” should prove important to employers, as it should establish a general rule that no information from employers’ pay data reports can be released if it identifies, “is associated” in any way with or may be used to identify a particular employer. SB 973 goes further and provides that individually identifiable information will not be released pursuant to requests to the DFEH or DLSE under the California Public Records Act.

All that said, SB 973 allows the DFEH or the DLSE, in any particular case, to make public individually identifiable information once the agency begins an investigation or enforcement action “involving that information.” However, in those circumstances, the agency may disclose the information “only to the extent necessary for purposes of the enforcement proceeding.” This language should be construed in the future to mean that neither the DFEH nor the DLSE may release individually identifiable information unless and until one or the other starts an enforcement action (not merely an investigation) and, in that instance, only within the enforcement proceeding and only to the extent “necessary” to that proceeding.

Beyond the rules set out above, the operative provisions of SB 973 do not include any provision authorizing plaintiff’s counsel to obtain an employer-defendant’s pay data reports through discovery in litigation in court or arbitration. I can certainly make forceful arguments that an employer-defendant’s pay data reports should not be available in discovery to plaintiff’s counsel in litigation. Undoubtedly, battles over that question will be fought soon.

Where Employers Fail to File Pay Data Reports

SB 973 equips the DFEH to pursue employers who do not file their reports as required. First, the new legislation authorizes the DFEH to obtain from the California Employment Development Department (EDD), on demand, lists of the names and addresses of all businesses in California with 100 or more employees for the DFEH’s use “in order to ensure compliance” with the new reporting requirements. Where an employer fails to file a required report, the DFEH is empowered to sue the employer for an order that the employer comply and, where the DFEH prevails, the employer will be ordered to pay the DFEH its costs incurred in seeking compliance.

Action Items to Consider

SB 973 becomes effective January 1, 2021. Employers who will be subject to the new requirements should consider the following action items:

  1. Monitor press releases from the DFEH and its website for information describing the system it will implement and require employers to use to submit their pay data reports. The system should be an online portal. Become familiar with the system well in advance of the March 31, 2021 filing deadline.
  2. Ensure now that you are compiling the data that must be included in the pay data reports. Involve IT early in the process in order to build an efficient, user-friendly system for compiling the required information and interfacing efficiently with the DFEH system.
  3. Involve employment counsel, either in-house or from the outside, early in the process of compiling the required data and reviewing your draft pay data report. Qualified, experienced employment counsel are needed to help identify the appearance of any potential pattern or discrepancy that may draw the attention of the DFEH or DLSE. Counsel’s input is needed in order to best determine whether to include the optional, pre-emptive comments in the pay data report and if so, to craft the comments; or, to make the strategic decision to hold back without comments and keep all options open for when and if an agency launches an investigation.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.

Employees who suffer physical or mental injury due to a crime will be entitled to job-protected leave and other protections from their employers under legislation signed this week by Governor Gavin Newsom. Employers will bear such obligations without confirmation from law enforcement that a crime occurred and where no one is arrested or prosecuted. Prior to the Governor’s approval of the new legislation, only employees victimized by domestic violence, sexual assault or stalking were entitled to such protections. The expanded provisions become effective January 1, 2021.

New Obligations of All Employers, Regardless of Size

Expanded Obligation to Provide Time Off Work to Seek TROs, etc.

Prior to approval of the new legislation, AB 2992, California Labor Code section 230 barred employers of any size from firing or discriminating against employees victimized by domestic violence, sexual assault or stalking for missing work to seek judicial relief, including restraining orders against perpetrators.

AB 2992 extends such protection to any employee who is (1) the victim of a crime that either caused physical injury or that caused mental injury and included a threat of physical injury; and, (2) any employee whose immediate family member died due to a crime. The new legislation broadly defines “crime” to mean “a crime or public offense, wherever it may take place, that would constitute a misdemeanor or a felony if the crime had been committed in California by a competent adult” and “regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.”

As for employees whose families suffer a crime-related death, the new provisions embrace a great many people as “immediate family members,” including any variety of child (biological, adoptive, foster, etc.), parent (biological, adoptive, foster, stepparent, etc.), sibling (biological, foster, half-sibling, etc.) and partner (whether married or a registered domestic partner). Also included is “any other individual whose close association with the employee is the equivalent of a family relationship  . . .”

When employees miss work without advance notice to seek a restraining order or other judicial relief due to a crime, AB 2992 will obligate employers to treat them with greater leniency. An employee missing work in that circumstance will be protected from discharge or other discrimination so long as, “within a reasonable time after the absence,” they give their employer a writing signed by the employee, or someone on the employee’s behalf, stating the employee missed work in order to seek a restraining order or other relief due to a crime. Prior to AB 2992, Labor Code section 230 protected employees missing work without advance notice only where they promptly gave the employer a police report, evidence the employee appeared in court or medical certification that the employee was undergoing medical treatment for injuries.

Expanded Prohibition of Crime-Victim Status Discrimination

Employers will also be broadly prohibited from firing an employee or otherwise discriminating or retaliating against them because of the employee’s status as the victim of a crime or abuse, under amendments to section 230 made by AB 2992.

New Leave Obligations for Employers of 25 or More Employees

AB 2992 imposes additional new obligations on employers of 25 or more employees. Under the new provisions, employees who either are crime victims or have suffered the death of an immediate family member will be entitled to job-protected leave in order to: (1) seek medical attention for injuries caused by the crime or abuse; (2) obtain services from a domestic violence shelter, program, rape crisis center or victim services organization or agency as a result of the crime or abuse; (3) obtain psychological counseling or mental health services related to the crime or abuse; or (4) participate in safety planning or take other actions to increase safety from future crime or abuse.

“Crime,” “victim” and “immediate family members” have the same meaning in Labor Code section 230.1, as amended, as they will in Labor Code section 230, as amended.

Prior to the signing of AB 2992, employers of 25 or more employees were obligated to provide such job-protected leave to only employees subjected to domestic violence, sexual assault and stalking.

Where it violates Labor Code sections 230 or 230.1, an employer may be ordered to reinstate the employee and reimburse the employee for all lost wages and benefits. Employees and former employees may file their complaints of violations with the California Labor Commissioner.

Action Items to Consider

Employers should consider the following steps well before the changes made by AB 2992 become effective on January 1, 2021:

  1. Revise applicable policies and circulate them no later than January 1, 2021. In fact, Labor Code section 230.1 requires employers to “inform each employee of their rights” under that section and Labor Code section 230. Be on the lookout for a new notice form the Labor Commissioner should develop and release.
  2. Educate first line supervisors, managers and HR staff on these changes. A supervisor or manager who is unaware of these changes and takes action against an employee in violation of their new rights may prove costly to the company.
  3. If you feel uneasy or have questions about any situation that may involve these developments, please reach your Fox Rothschild LLP attorney. We are here to help.

This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.