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07 Sep

August 2020 California HR Legal Updates

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Cal/OSHA Recommends Emergency COVID-19 Regulation with PPE and Training Provisions

What happened?
On August 10, 2020, staff members of the California Division of Occupational Safety and Health (Cal/ OSHA) recommended that the Occupational Safety and Health Standards Board (1) promulgate an emergency COVID-19 regulation and (2) convene an advisory committee to determine whether a permanent regulation should be drafted to protect workers from novel pathogens.

What are the details?
On May 20, 2020, worker advocates submitted a petition for an emergency COVID-19 safety standard demanding additional COVID-19 regulations for those employees not covered by the Aerosol Transmissible Diseases (ATD) standard.

In response, the staff members of Cal/ OSHA, recommended that the Occupational Safety and Health Standards Board (1) promulgate an emergency COVID-19 regulation and (2) convene an advisory committee to determine whether a permanent regulation should be drafted to protect workers from novel pathogens. Cal/OSHA cited a lack of regulation governing PPE for construction workers and mining employees.

In contrast, the legal staff for the Standards Board suggested that both the petition for the emergency COVID-19 regulation and the recommendations above be denied, citing the need to enforce existing regulations. They explained that new regulations would place additional regulatory burdens on California businesses that are already in compliance with the state’s COVID-19 requirements and guidelines.

A decision on whether to adopt new COVID-19 regulations will occur at a future time. CAL/OSHA’s monthly meeting agenda and minutes can be found here.

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CCPA Requirements Postponed January 1, 2022, Will Include New Employer Provision

What happened?
In 2018 the California Consumer Privacy Act (CCPA) passed, creating new requirements for for-profit businesses. The deadline to be within compliance with the law was extended to January 2020, with the California Department of Justice (DOJ) setting July 2020 as the date on which they would begin enforcing the provisions. However, on August 30, 2020, the legislature passed AB 1281 postponing the requirements of employers regarding employee data to January 1, 2022.

What are the details?
The CCPA will be enforced by the California DOJ at a later date. This will impact businesses that fill the following criteria:

  • Annual gross revenue in excess of $25 million;
  • Alone or in combination, annually buys, receives for the business’s commercial purposes, sells, or shares for commercial purposes, alone or in combination, the personal information of at least 50,000 consumers, households or devices; or
  • Derives at least 50% of its annual revenues from selling consumers’ personal information.

This legislation presented an issue. California employers were now in a situation where employees may request their personal information be destroyed – even when it may be needed for the hiring process. Legislation has since passed to provide employers a grace period of a year when using employee personal information as long as it is only for employment purposes. California employers will still need to keep the employee informed as to what personal information is needed and what that information will specifically be used for by the employer. Whenever collecting personal information, employers must provide a notice that:

  • Lists the categories of personal information to be collected with each category written in a manner that provides applicants and employees a meaningful understanding of the information being collected;
  • Describes the business purpose for which the information will be used;
  • Uses plain, straightforward language and avoids technical or legal jargon;
  • Uses a format that draws the applicant’s or employee’s attention to the notice and makes the notice readable, including on smaller screens, if applicable;
  • Is available in the languages in which the business, in its ordinary course, provides contracts, disclaimers, sale announcements, and other information to consumers in California; and
  • Is reasonably accessible to applicants and employees with disabilities. (For notices provided online, the employer shall follow generally recognized industry standards, such as the Web Content Accessibility Guidelines, version 2.1 of June 5, 2018, from the World Wide Web Consortium. In other contexts, the business shall provide information on how a consumer with a disability may access the notice in an alternative format.)

The new guidance/legislation for the notice required of employers can be found here.

AB 1281 can be found here.

What do employers need to do?
California employers should continue to monitor state actions and changes made to the CCPA before the extension in which employer will then be held liable for non-compliance.

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California Extends COVID-19 Paid Sick Leave to Essential Food Sector Workers

What happened?
On April 16, 2020, Governor Newsom signed Executive Order (EO) N-51-20, which took immediate effect and requires certain food sector workers to receive COVID-19 supplemental paid sick leave (CPSL) during the pendency of any statewide stay-at-home orders.

What are the details?
The EO covers a “hiring entity,” essentially any private company with 500 or more employees in the United States, including a Delivery Network Company and a Transportation Network Company. For business size calculations, the EO uses federal Families First Coronavirus Response Act (FFCRA) rules.

The EO covers essential critical infrastructure workers (1) who are exempt from requirements under EO N-33-20 or any subsequent statewide stay-at-home order; (2) who leave their home or another place of residence to perform work for or through a hiring entity; and (3) who satisfy any of the following criteria:

  • they work in one of the industries or occupations:
    • Canning, Freezing, and Preserving Industry ;
  • Industries Handling Products After Harvest ;
    • Industries Preparing Agricultural Products for Market, on the Farm ; or
    • Agricultural occupation ;
  • they work for a hiring entity that operates a food facility ; or
  • they deliver food from a food facility .

Should an employee meet the above qualifications, the employee will be entitled to an additional 80 hours of CPSL. This is in addition to what the employee would normally be entitled to from the California’s Healthy Workplaces, Healthy Families Act of 2014 (HWHFA). Covered workers can use CPSL immediately if they are unable to work due to (1) the worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19; (2) a health care provider advises the worker to self- quarantine or self-isolate due to concerns related to COVID-19; or (3) the hiring entity prohibits the individual from working due to health concerns related to the potential transmission of COVID-19.

Workers can make a verbal or written request for leave. They alone determine how many leave hours they will use.

Interestingly, the EO makes a provision requiring that employers allow time for employees in any food facility to wash their hands every 30 minutes.

The original EO N-51-20 can be found here.

The original EO N-33-20 can be found here.

What do employers need to do?
California employers that are a part of the food chain should be aware of the handwashing requirement and have facilities available to accommodate the employees. Employers should update their leave policy for qualifying employees immediately.

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Wildfire Information Regarding Leaves, Worker Safety, and Wage Compliance

What happened?
Summer is in full swing and wildfires are again raging across the state of California. The state has experienced these many times in the past, and as such, there is available regulations and guidance on how employers should handle the situation.

What are the details?
Worker Safety
Federal OSHA does not have a wildfire standard but does require that employers protect employees from anticipated hazards associated with wildfires that employees are likely to come in contact with as part of their general duty obligations. Federal OSHA has also issued guidance indicating that employers with operations at risk of exposure to wildfires should be prepared for wildfire exposures through the development of preparedness and evacuation plans, establishment of safety zones around buildings, and availability of emergency response equipment. 

In California, Cal/OSHA regulations require that employers take steps to protect their workers from potential exposures to wildfire smoke, which can present a hazard by employees breathing in harmful chemicals, gases, or fine particles that have the potential to harm their respiratory systems. Steps to protect workers can include moving operations indoors, providing respiratory protection, or ceasing operations until outdoor air quality is improved. 

When employers in California have a reasonable expectation that employees could be exposed to wildfire smoke at a worksite, employers must monitor the air quality index (AQI) and determine employees’ potential exposure to particulate matter. Employers can also obtain information on AQI and potential particulate matter exposures directly from Environmental Protection Agency, California Air Resources Board, or their local air pollution control and air quality management districts.

Under Cal/OSHA regulations, employers also have certain obligations if the AQI reaches certain parameters including:

  • Informing employees of wildfire smoke hazards, the current air quality, and protective measures available.
  • Providing effective training and instruction to employees on the AQI, resources for monitoring air quality conditions, potential sources of exposure to particulate matter, and the employer’s engineering (i.e., feasible operational modifications) and administrative controls (e.g., schedule changes) to protect employees from potentially harmful wildfire smoke exposures.
  • Modifying the workplace where feasible to reduce potential exposure.
  • Providing appropriate respiratory protection equipment, when needed, such as disposable filtering facepiece respirators or dust masks.

Leaves
In addition to the immediate safety at the worksite, a disaster like a wildfire may mean employees require time off of work. Under the FMLA and California Family Rights Act (CFRA), an employee may be eligible for leave if the employee or a family member develops a serious health condition due to the wildfires. If the employee has paid sick leave time available, they could first take paid leave before taking unpaid leave under FMLA or CFRA.

Wage Compliance
If a business has to close due to wildfires, the business needs to be prepared to handle payroll issues, such as missing timesheets. If incorrect paychecks go out, employers should attempt to correct issues as soon as possible to avoid potential penalties should an employee make a claim. Moreover, exempt employees generally must receive their full salary, if there is a forced closure of less than a full workweek.

What do employers need to do?
Employers should continue to monitor the wildfire situation and takes steps at the workplace accordingly.

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COVID-19 Supplemental Paid Sick Leave for Long Beach, California

What happened?
On May 19, 2020, Long Beach, California enacted a law requiring supplemental paid sick leave for COVID-19 purposes. 

What are the details?
The Long Beach ordinance has no current “end” date; rather, the city manager must report to the city council and mayor every 90 days, and the city council will determine whether and when the law will no longer apply.

The ordinance applies to employers with 500 or more employees nationally, excluding those wholly or partly required to provide paid sick leave benefits under the federal EPSL. The ordinance covers any individual the employer employs who performs any work in Long Beach. Employers may exclude from the law’s requirements employees who are healthcare providers and emergency responders.

Employers must provide 80 leave hours to full-time employees and, for part-time employees, an amount equal to the number of hours an employee works, on average, over a two-week period. For part-time employees, the ordinance contains a calculation employers must use to determine how many daily hours of leave employees can take, which is the daily average during the six-month period (or period of employment) preceding May 19, 2020. Employers with an existing paid time off policy that provides a minimum of 160 hours of paid leave annually are exempt from the obligation to provide supplemental paid sick leave to any employee who received such generous paid leave. An employer can reduce the amount of supplemental leave they provide an employee by the amount of paid leave hours it provided an employee on or after March 4, 2020, that employees could use for reasons the law requires or in response to an employee’s inability to work due to COVID-19. The law does not require employees to use existing paid leave options before utilizing their supplemental paid leave.

Employees can use the leave immediately for the following reasons:

  • Employee is subject to quarantine or isolation by federal, state, or local order due to COVID-19, or is caring for someone who is quarantined or isolated due to COVID-19;
  • Employee is advised by a healthcare provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a healthcare provider;
  • Employee experiences symptoms of COVID-19 and is seeking medical diagnosis;
  • Employee is caring for a minor child because the child’s school, daycare, or childcare provider is closed or unavailable because of COVID-19 and the employee is unable to secure a reasonable alternative caregiver.

Employers can require employees to follow reasonable notice procedures to use leave, but only for foreseeable absences. Employers may ask for a reason for the employee’s absences but cannot require a doctor’s note.

The ordinance can be found here.

What do employers need to do?
Employers with operations in Long Beach should double-check that they are compliant with this supplemental leave. If not, they should work with their HR representative and implement the needed policies.

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Valley Fever Awareness Training Required in Select California Counties

What happened?
Labor Code section 6709, added by AB 203, creates a new requirement of select counties in California in which they will need to provide special awareness training regarding Valley Fever.

What are the details?
Labor Code section 6709 is specific to construction workers affected in a number of Central Valley counties. It requires employers performing earth-disturbing activities that create airborne dust to provide effective awareness training to employees about Valley Fever exposure. The training requirement applies to construction employers with employees at worksites where Valley Fever is “highly endemic,” including Fresno, Kern, Kings, Madera, Merced, Monterey, San Joaquin, San Luis Obispo, Santa Barbara, Tulare, and Ventura counties. High endemic is defined as the annual incidence rate of Valley Fever being greater than 20 cases per 100,000 persons per year. The training itself must specifically cover eight items:

  1. What is Valley Fever and how is it contracted?
  2. High-risk areas and when chances of infection are greatest
  3. Information on personal health issues that could increase the risk of being infected
  4. Personal and work area exposure prevention methods
  5. Importance of early detection, diagnosis, and treatment
  6. Recognizing symptoms
  7. Employee reporting of symptoms to expedite diagnosis and treatment
  8. Information on common treatment and prognosis

Cal/OSHA has a webpage set up to cover most information on Valley Fever.

AB-203 can be found in its entirety here.

What do employers need to do?
Employers in the listed counties will need to perform the training once a year as of May 1, 2020, and before an employee begins work that is likely to cause exposure due to substantial dust disturbances.

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Sonoma County, California Implements Supplemental COVID-19 Sick Leave

What happened?
Sonoma County passed a paid sick leave ordinance on August 18, 2020. The purpose of the paid sick leave ordinance is to act as a supplement to the FFCRA.

What are the details?
On August 18, 2020, Sonoma County passed a paid sick leave ordinance that will sunset on December 31, 2020. The ordinance is effective immediately. The sick leave ordinance will cover employers with more than 500 employees, either locally or nationally. It will apply to any employees who work in Sonoma County for at least two hours in the unincorporated areas of the county, ignoring Santa Rosa, as they have their own paid sick leave ordinance. Unlike other COVID-19–related sick leave laws, Sonoma County is not creating an exemption for healthcare workers, so they will receive the sick leave as well.

The employees may use their sick leave for the following reasons:

  1. The employee has been advised by a health care provider to isolate or self-quarantine to prevent the spread of COVID-19;
  2. The employee is subject to quarantine or isolation by federal, state, or local order due to COVID- 19;
  3. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. The employee needs to care for an individual who is subject to a federal, state, or local quarantine or isolation order related to COVID-19, or has been advised by a healthcare provider to self-quarantine related to COVID-19, or is experiencing COVID-19 symptoms and is seeking a medical diagnosis; or
  5. The employee takes time off work because the employee needs to provide care for an individual whose senior care provider or whose school or childcare provider is closed or is unavailable in response to public health or other public official’s recommendation.

The ordinance is available online here.

What do employers need to do?
Employers in Sonoma County should review and update their paid sick leave policies to accommodate this new ordinance. Managerial staff should be trained on how to administer this new paid sick leave as well.

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Oakland, CA Enacts COVID-19 Paid Sick Leave Ordinance

What happened?
On May 12, 2020, like other California cities, Oakland enacted a law requiring supplemental paid sick leave for COVID-19 purposes.

What are the details?
The law covers all private employers, including employers already covered by the FFCRA. The Act creates an exemption for small employers who employed fewer than 50 employees between February 3, 2020, through March 4, 2020. Additionally, like the FFCRA, it creates an optional exemption for healthcare providers and emergency responder employees. Employers may enter into a collective bargaining agreement that waives the law’s requirements in clear and unambiguous terms.

The ordinance requires employers to provide 80 hours of COVID-19 emergency paid sick leave to employees who worked at least 40 hours per week in Oakland from February 3, 2020, through March 4, 2020, or at any point thereafter, or whomever the employer classifies as a full-time employee. Other employees must receive an amount of leave equal to the average number of hours they worked in Oakland over any 14-day period starting February 3, 2020, through March 4, 2020. The 14 days must be the highest number of hours worked in Oakland. Employers may not require employees to use other forms of leave before they use COVID-19 emergency paid sick leave.

Employees may use the paid sick leave for the following reasons:

  1. Employee is subject to a federal, state, or local quarantine or isolation order related to COVID- 19;
  2. Employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  3. Employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. Employee is caring for an individual who is subject to a federal, state, or local quarantine or isolation order or has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  5. Employee is caring for their son or daughter if the school or place of care has been closed, or the childcare provider is unavailable due to COVID-19 precautions;
  6. Employee is experiencing any other substantially similar condition specified by the U.S. Secretary of Health and Human Services in consultation with the Secretary of Labor and Secretary of the Treasury;
  7. Employee needs to care for a family member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19;
  8. The employee (a) is at least 65 years old; (b) has a health condition such as heart disease, asthma, lung disease, diabetes, kidney disease, or weakened immune system; (c) has any condition identified by an Alameda County, California or federal public health official as putting the public at heightened risk of serious illness or death if expose to COVID-19; or (d) has any condition certified by a healthcare professional as putting the employee at a heightened risk of serious illness or death if exposed to COVID-19.

A more detail breakdown of the ordinance can be found here.

The ordinance itself and an FAQ created by Oakland can be found here.

What do employers need to do?
Employers in Oakland should ensure that their paid sick leave policies are reflecting the requirements of the ordinance. Reviewing the FAQ may help clarify any questions.

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California Agencies Provide Employers Guidance on Returning Employees

What happened?
Multiple agencies in the state of California have now released guidance for employers to use regarding strategies for employees to return to work after testing positive for COVID-19.

What are the details?
The California Department of Fair Employment and Housing has provided an FAQ that acts as guidance for multiple COVID-19 questions employers may have.

The California Department of Public Health has provided a new piece of guidance that identifies viable strategies for employers to use when determining when to allow previously COVID-19 positive workers back into the workplace.

The state of California has released a “COVID-19 Employer Playbook” that contains very helpful guidance for employers. The material combines resources from other agencies as well.

What do employers need to do?
Employers should continue reviewing guidance provided by the state to ensure they remain in compliance with their workplace practices.

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San Francisco, CA Provides Back to Work Notice and Guidance

What happened?
The San Francisco Office of Economic and Workforce Development (OEWD) has provided new guidance on the Temporary Right to Re-employment Following Layoff Due to the COVID-19 Pandemic Emergency Ordinance (“Back to Work” Ordinance).

What are the details?
The OEWD has provided new guidance for employers to use when adhering to the “Back to Work” Ordinance. Employers may use the office’s “Notice of Layoffs” form when laying off employees who had been furloughed or temporarily laid off due to COVID-19. Alternatively, employers can use the office’s “All Notices of Reemployment Offers” to keep track of and file the number of employees they will have returning to work.

Note: The original ordinance granting employees the right to return to work sunset on September 2, 2020. Employers may still want to use these forms as they send layoff notices when terminating employees. The order may be extended by the Board of Supervisors.

The “Notice of Layoff” form can be found here.

The “Notice of Reemployment Offers” form can be found here.

What do employers need to do?
Employers should familiarize themselves and administrative staff with these forms in the chance that the ordinance may be renewed. If layoffs happened between July 3, 2020, and September 2, 2020, employers should fill out both forms and send them to backtowork@sfgov.org

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San Jose, CA Issues COVID-19–Related Emergency Paid Sick Leave Ordinance

What happened?
The San Jose, California City Council has enacted, as of April 7, 2020, two nearly identical ordinances to provide paid sick leave coverage for employees not covered by the FFCRA.

What are the details?
On April 7, 2020, the City Council issued two nearly identical ordinances regarding emergency paid sick leave. One was an emergency ordinance that took effect immediately while the other is a normal ordinance that will act as a backup that can be changed should the emergency ordinance be legally challenged. The ordinances aim to cover employees who were not covered by the FFCRA. The ordinances will apply to employers that are subject to San Jose’s business tax or maintain a facility in San Jose. Employers are not required to provide both FFCRA leave and the leave required under this ordinance. Employers may offset the required amount of leave with existing time off policies. The law covers employees who work at least two hours in San Jose and employers must provide emergency paid sick leave only to employees who leave their home to perform essential work.

Employees may use the emergency paid sick leave for the following reasons:

  1. An employee is subject to quarantine or isolation by federal, state, or local order due to COVID- 19, or is caring for someone who is quarantined or isolated due to COVID-19;
  2. An employee is advised by a healthcare provider to self-quarantine due to COVID-19 or is caring for someone who is so advised by a healthcare provider;
  3. An employee experiences symptoms of COVID-19 and is seeking medical diagnosis; and/or
  4. An employee is caring for a minor child because a school or daycare is closed due to COVID-19.

Employees will receive the full 80 hours of paid sick leave. Part-time employees will receive a number of hours equal to the number of hours they work on average over a two-week period. The calculation must be based on the previous six months before April 7, 2020. If the employee has not worked for six months, then the duration will be for however many months they have been employed instead.

A more in-depth breakdown of the ordinance can be found here.

The ordinance can be found here.

What do employers need to do?
Employers should update their paid sick leave policies temporarily for the duration of the pandemic in order to accommodate this leave.

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Upcoming California Compliance Deadline for Harassment Prevention Training

What happened?
The deadline for the 2018 California law that extends anti-harassment training requirements to employers with five employees or more will be effective January 1, 2021.

What are the details?
In 2018, California law extended anti-harassment training requirements to employers with five employees or more and mandated that non-supervisors also receive such training, in addition to supervisors. The original deadline for completion of that training was January 1, 2020. In 2019, California Governor Newsom signed legislation extending the deadline under California Government Code section 12950.1 for initial compliance to January 1, 2021. The amendment to the California Government Code also clarified that an employer that provided sexual harassment training in 2019 is compliant with the training requirements and is not required to provide training again for two years.

A summary of the 2018 California law can be found here.

What do employers need to do?
California employers with five or more employees should review the linked article above. They should update their anti-harassment policies and begin the needed training for the impacted employees.

Employers can utilize the Department of Fair Employment and Housing free sexual harassment training for both supervisory and non-supervisory employees located here.

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