California Employment Law - A Fox Rothschild Blog

As the sun rises on New Year’s Day 2021, California employment law will once again become more involved and challenging. For many employers, the following are the top five developments they most need to prepare for.

  1. One Measure of Relief: COVID-19 Paid Sick Leave Requirements Expire

For much of 2020, California law has required that employers of 500 or more employees provide eligible employees COVID-19 Supplemental Paid Sick Leave. Employees qualify for the supplemental paid sick leave if their health care provider advises they self-quarantine due to COVID-19, they are subject to a governmental isolation order related to COVID-19 or their employer bars them from working due to health concerns related to potential transmission. The law requires that covered employers provide qualified full-time employees, for example, up to 80 hours of supplemental paid sick leave.

California’s COVID-19 Supplemental Paid Sick Leave law remains in effect through December 31, 2020, and then expires, meaning employers will no longer be required to provide the Supplemental Paid Sick Leave.

The federal Families First Coronavirus Response Act (FFCRA) has, since April 1, 2020, required employers of fewer than 500 employees to provide up to 80 hours of Emergency Paid Sick Leave to employees unable to work due to COVID-19, including employees caring for a son or daughter whose school closed due to the pandemic.

Like California’s program, the federal mandate that smaller employers provide Emergency Paid Sick Leave is effective through December 31, 2020, and then expires.

The COVID-19 relief package signed into law by President Trump on December 27, 2020 does not extend federal Emergency Paid Sick Leave or include any variety of paid sick leave for those unable to work due to COVID-19.

As a consequence, effective New Year’s Day 2021, employers operating in California will be subject to paid sick leave requirements under only the state’s Healthy Workplace Healthy Family Act of 2014 and any local paid sick leave ordinance.

  1. The California Family Rights Act Expands in Historic Fashion

To date, only private sector employers with 50 or more employees have been subject to the California Family Rights Act (CFRA). The Act, like the federal Family Medical Leave Act (FMLA), requires that covered employers provide eligible employees with up to 12 weeks of job-protected leave each 12-month period when leave is needed because of the employee’s own serious health condition, to care for specified family members facing medical challenges or to care for a child.

Effective January 1, 2021, private sector employers of only five or more employees will be subject to CFRA. Also effective January 1, covered employers will be required to grant family leave to employees to care for their ill grandparent, grandchild or sibling.

My earlier blog post more fully explaining the coming expansion of CFRA and practical considerations for employers is here.

  1. State and Local Minimum Wage Rates Increase Once Again

Effective January 1, 2021, the California minimum wage for employers of 25 or fewer employees increases from $12.00 to $13.00 per hour. The state minimum wage for employers of more than 25 employees increases January 1 from $13.00 to $14.00. As a consequence of the increases, the minimum salary that must be paid as a part of satisfying the white collar exemptions increases to $58,240.00 annually for those employed by employers of more than 25 employees and to $54,080.00 annually for those employed by employers of 25 or fewer employees.

Also effective New Year’s Day, the local minimum wage increases in cities throughout the state. As of New Year’s Day, the minimum wage increases to $15.65 per hour in Cupertino, Los Altos, Palo Alto and Santa Clara, California. The minimum wage increases on January 1 in San Jose to $15.45, in Oakland to $14.36 and in San Diego to $14.00 per hour, as additional examples.

Local minimum wage figures will increase effective July 1, 2021 in localities including the City and County of San Francisco, the City and County of Los Angeles, and Santa Monica.

  1. Employers Must Notify All Employees who were On-Site with a Person with COVID-19

Assembly Bill 685, effective January 1, 2021, obligates employers to give notice broadly across the workforce whenever a person with COVID-19 was in the workplace or onsite. The obligation arises when an employer learns that an employee has or had COVID-19, that an employee was exposed to a person (employee or otherwise) in the workplace with COVID-19, or that a subcontracted worker or other person with COVID-19 was onsite. In those circumstances, the employer must notify “all employees” who were at the worksite with the infected person within the infectious period that they might have been exposed to COVID-19.

Employers must give the notice within one business day of learning of the potential exposure. Additional information must be included in the notice.

AB 685 includes additional obligations and subjects employers to costly penalties for violations.

My earlier blog post more fully describing AB 685 and offering practical guidance is here.

  1. California Employers Must File Their First Pay Data Reports with the DFEH

With the New Year, California private sector employers of 100 or more employees will be required to file with the Department of Fair Employment and Housing (DFEH) data on the race, ethnicity and sex of their employees in each of 10 job categories. According to the legislation, the data will be used for “targeted enforcement” of the state’s pay equity, anti-discrimination and wage and hour laws.

Employers must file their first reports no later than March 31, 2021.

The new law also empowers the DFEH to accept, investigate and prosecute complaints for violations of the California Fair Pay Act, an important extension of the agency’s authority.

A more complete discussion of the new requirements is in my earlier post here.

Closing

As always, well-informed, thoughtful preparation will be key to avoiding violating the many new measures becoming effective with the New Year.

Please contact your Fox Rothschild LLP counsel for help addressing any of the subjects in this post.

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.

As an unprecedented operation begins to deploy millions of doses of COVID-19 vaccines across the country, employers question whether they may lawfully require that employees be vaccinated. Today, the U.S. Equal Employment Opportunity Commission (EEOC) weighed in with guidance.

The EEOC guidance makes points including the following:

  1. An employer (or a vendor contracted by the employer) administering a COVID-19 vaccine to employees is not conducting “medical examinations” under the Americans with Disabilities Act (ADA). The EEOC’s rationale is that simply injecting the vaccine does not, as is required for a procedure to constitute a medical exam, seek or acquire information about an employee’s impairments or health status.
  2. Screening questions posed to potential vaccine recipients before they receive the injections are “likely to elicit information about a disability.” Thus, in order to lawfully subject employees to such screening, the employer bears the burden of proving that the questions are job-related and consistent with business necessity, according to the EEOC. “To meet this standard,” the guidance states, “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”

Where an employee receives the vaccination from a provider other than the employer or a vendor not contracted by the employer, however, and the employee simply supplies proof of vaccination to the employer, the employer would not be making disability-related inquiries. In that event, according to the EEOC, the employer would not be required to prove that any screening questions were job-related or consistent with business necessity.

  1. Where an employee declines a COVID-19 vaccination on the grounds of a claimed disability, the employer must engage in the interactive process. In some instances, permitting the employee to work remotely may constitute a reasonable accommodation, according to the guidance. In assessing whether allowing an employee to continue working onsite would constitute an undue burden, the EEOC wrote that “the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown” may be relevant.
  2. Where an employee declines a COVID-19 vaccination on grounds of a religious practice or belief, the employer must extend reasonable accommodation, if possible, unless doing so would be an undue burden. In this context, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” Where, however, an employer has “an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.”
  3. An employer administering a COVID-19 vaccine to employees or requiring proof of vaccination does not implicate employee rights under Title II of the Genetic Information Nondiscrimination Act (GINA). Employers do not use genetic information to make employment decisions, or acquire or disclose genetic information as defined by GINA, in administering vaccinations or requiring that employees show proof they were vaccinated.
  4. Where vaccinations are administered by the employer, pre-vaccination screening questions may implicate GINA. Such screening questions may, for example, include questions regarding the immune systems of family members, which may invoke Title II of GINA. The guidance recommends that, where the screening questions may implicate GINA, the employer consider requiring that employees provide proof of vaccination instead of the employer administering the vaccination program, thereby avoiding asking or knowing the answers to any screening questions.

Closing

Today’s guidance from the EEOC may be found in “Part K. Vaccinations” here.

While important, the guidance is input from only one of several perspectives that should be considered as employers explore how they will approach the vaccination question. State and local equal employment opportunity legal schemes also must be considered. In unionized workforces, whether and how the employer may impose a vaccination requirement may be a term of employment requiring collective bargaining.

Whether the employer and workplace are within an essential critical infrastructure sector under California law, and thus the employees are allowed to work onsite at this time, not merely remotely, also bears on the question of whether and when an employer may consider mandating vaccination.

Please contact your Fox Rothschild LLP counsel for help addressing the issue.

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.

Please join our December 18 webinar “Understanding Cal/OSHA’s New Emergency COVID-19 Prevention Regulation.”  The regulation – the most sweeping pandemic-related requirements yet – is now in effect and being enforced.  Most employers are subject to the requirements, with few exceptions.  This webinar will equip you to comply and do so efficiently.

You will find the registration link and more information HERE.

Firm labor and employment partners Sahara Pynes and Jeffrey Horton Thomas will present.

We look forward to you participating.

 

Many California workers will really be staying at “home for the holidays” given the state’s broad new Stay-at-Home Order that effects California by region.  Currently two regions, Southern California and San Joaquin Valley are subject to these new restrictions as of December 6th at 11:59 pm.   The other three regions have not yet met the threshold, but all are expected to hit that mark soon.

Many thanks to John Jung for summarizing the new order in this Alert, a must-read for all California employers (and residents).

This means yet another round of furloughs or layoffs for California employers, so please be thoughtful with your employee communications on that issue.

In the meantime, it looks like the holidays in California will be limited to your household (including pets) and not much else given limitations on public and even private gatherings.

Please stay safe, and keep your employees safe during the holidays!

[YOU ARE INVITED TO OUR WEBINAR – “Understanding Cal/OSHA’s New Emergency COVID-19 Prevention Regulation,” 11 a.m. Pacific Time, December 18, 2020.  Register here.] 

FAQs released yesterday by the State of California are must-read guidance for employers in complying with Cal/OSHA’s new Emergency COVID-19 Prevention Regulation. Employers should make distilling from the FAQs what is relevant to their operation an immediate priority, as the regulation became effective and enforceable on Monday, November 30, 2020. The regulation is the most detailed, onerous body of COVID-19-related requirements imposed on California employers to date.

[A robust summary of the regulation may be found in my earlier post here.]

What the FAQs Tell Employers and Their Counsel

The California Department of Industrial Relations released the FAQs. Highlights include the following:

  1. Yes, employers must provide paid leave to COVID-19 impacted employees!

The regulation mandates that employers exclude from the workplace employees who are “COVID cases” and those with “COVID exposure,” as defined by the regulation, until they satisfy criteria to return safely. Importantly, the regulation also provides that, during the time an employee is excluded from the workplace, the employer must “maintain [their] 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.”

While the regulation arguably leaves unclear whether employers must provide such employees only unpaid, job-protected leave, the FAQs advise that employers must provide paid, job-protected leave for the period the employees are excluded:

“Q: Must an employer pay an employee while the employee is excluded from work?

A: If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments. . . These obligations do not apply if an employer establishes the employee’s exposure was not work-related.”

In short, according to the FAQs, the regulation imposes a new variety of paid leave for employees related to COVID-19, namely, “exclusion pay” under the new Cal/OSHA regulation. Moreover, it appears that circumstances can arise where current state and federal law will not require employers to pay any variety of paid sick leave, but the regulation will require them to pay exclusion pay.

Where employers refuse to pay exclusion pay on the grounds that employees’ exposure to the virus was not work-related, employers may face risk. In taking that position, employers are likely to bear a burden of demonstrating where, outside of work, employees were exposed or, at the least, that the employees were not exposed at work. Such proof may be difficult to put forward. Of course, where employees admit they were exposed off duty and credibly explain the circumstances of exposure, employers not paying exclusion pay will carry less, if any, risk.

  1. Employers Should Prioritize Eliminating “Hazards” and Complying with Testing Requirements

Cal/OSHA adopted the regulation through an emergency rule making procedure that left employers what is widely considered insufficient time to prepare to meet the November 30 effective date. The FAQs, fortunately, give employers some insight into where they should begin their compliance efforts.

“Q: What if an employer is unable to comply with the [regulation] by” the November 30, 2020 effective date?

“A: . . . [As employers work toward compliance,] Cal/OSHA enforcement personnel will consider an employer’s good faith efforts in working toward compliance, but some aspects, such as eliminating hazards and implementing testing requirements during an outbreak, are essential.”

In other words, Cal/OSHA expects employers to be at work now preparing their written COVID-19 Prevention Programs, but to prioritize identifying and eliminating workplace “COVID-19 hazards,” as defined in the regulation, and building out systems to provide employees free-of-charge COVID testing, as called for by the regulation.

  1. The Time Employees Spend being Tested is Compensable Time

While the regulation requires that employers offer COVID-19 testing at no cost during working hours to all employees with potential workplace COVID-19 exposure, the FAQs go one-step further and make clear that “the time an employee spends being tested is considered compensable hours worked.”

  1. Employers may Reimburse Employees for the Cost of Face Coverings and not Supply Them

The regulation mandates that employers “provide face coverings and ensure they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person . . .” The FAQs, however, give employers the option of either providing employees with face coverings or reimbursing employees for the cost of their buying face coverings.

  1. Non-Employees and Employees Alike are Included in Determining an “Outbreak”

The regulation imposes a demanding protocol on employers where “there are three or more COVID-19 cases in an exposed workplace within a 14-day period” or a local health department identifies the workplace as the location of a COVID-19 outbreak.” The regulation does not make clear whether non-employee COVID-19 cases in the workplace are to be taken into account in determining whether the “three or more cases” threshold is met.

The FAQs answer the question: “Any confirmed COVID-19 case [whether employee or otherwise] who has been in the workplace during the high-risk exposure period counts towards the three-case threshold.”

A Template for COVID-19 Prevention Plans is Now Available

At page 2 of the FAQs, the Department of Industrial Relations (DIR) includes a link to a template employers may use at least as an outline in beginning to prepare the written COVID-19 Prevention Plan required under the regulation. The template is generalized and will likely need to be customized employer-by-employer.

Cal/OSHA will Continue to Develop COVID-19 Prevention Requirements and Guidance

The DIR announced that the FAQs will be expanded on an ongoing basis.

The DIR also announced that it will conduct a stakeholder meeting this month to explain the regulation, answer questions and receive feedback on the regulation. A meeting date has not yet been made public. An advisory committee meeting will be scheduled soon after that, a move that may signal Cal/OSHA’s intention to move forward with a regular rulemaking process for a permanent COVID-19 Prevention Regulation.

The DIR also announced that Cal/OSHA is developing training on the regulation that will be delivered via webinars.

The FAQs may be found here.

For help developing your required COVID-19 Prevention Plan or other legal advice on this important subject, please reach my partners Nancy Yaffe or Sahara Pynes, or me. We will be happy 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.

Green California map shape

PLEASE JOIN OUR FIRM’S WEBINAR – “Understanding Cal/OSHA’s New Emergency COVID-19 Prevention Regulation,” December 18, 2020 at 11 a.m. Pacific Time.  Register here.

[UPDATE: Cal/OSHA’s Emergency Regulation went into effect on November 30, 2020, as anticipated by the post below.  On December 1, 2020, FAQs giving guidance to employers on complying with the regulation were released by the California Department of Industrial Relations.  My blog post on the FAQs and additional updates may be found HERE.]

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.

[UPDATES: 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.  The regulation became effective on November 30, 2020.  FAQs meant to help employers comply were released on December 1, 2020 by the California Department of Industrial Relations.  My article on the FAQs and other guidance 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.