23 Jun

June 2021 California HR Legal Updates

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Reminder: CalSavers Compliance Deadline

 In 2016, California Governor Brown signed Senate Bill 1234 requiring the state’s Secure Choice Retirement Savings Investment Board to develop a workplace retirement savings program known as CalSavers for private-sector workers whose employers do not offer a retirement plan.

As a result, any employer with five or more employees must provide a retirement plan for their workers or register for CalSavers and facilitate employees’ contributions to individual retirement accounts. Deadlines for compliance vary according to the size of the business. An “eligible employee” is defined as anyone 18 years or older, working in California, and receiving W-2 wages.

Size of Business Deadline

  • Over 100 employees: September 30, 2020
  • Over 50 employees: June 30, 2021
  • Five or more employees: June 30, 2022

Businesses who fail to comply with the CalSavers mandate could be subject to penalties of $250 per employee if the employer does not comply within 90 days of receiving a notice requiring registration and $500 per employee if the employer does not comply with 180 days of receiving the notice may be imposed.

For more information please visit the CalSavers website.

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Cal/OSHA Updates COVID-19 Prevention Emergency Temporary Standards

Update Applicable to:
All California employers.

What happened?
On June 17, 2021, the California Occupational Safety and Health Administration (OSHA) updated the COVID-19 Temporary standards.

What are the details?
On June 17, 2021, Cal/OSHA approved a revised version of its Emergency Temporary Standard (“ETS”). The revised ETS is more closely aligned with guidance issued by the Center for Disease Control and Prevention (“CDC”) and California Department of Public Health (“CDPH”) with regards to face coverings, it still includes many controversial provisions relating to documenting employee’s vaccination status, providing approved respirators upon request for voluntary use, testing, and exclusion pay, among others.

The Department of Industrial Relations provided the following summary of changes:

  • Fully vaccinated employees do not need to be offered testing or excluded from work after close contact unless they have COVID-19 symptoms.
  • Fully vaccinated employees do not need to wear face coverings except for certain situations during outbreaks and in settings where CDPH requires all persons to wear them. Employers must document the vaccination status of fully vaccinated employees if they do not wear face coverings indoors.
  • Employees are not required to wear face coverings when outdoors regardless of vaccination status except for certain employees during outbreaks.
  • Employees are explicitly allowed to wear a face covering without fear of retaliation from employers.
  • Physical distancing requirements have been eliminated except where an employer determines there is a hazard and for certain employees during major outbreaks.
  • Employees who are not fully vaccinated may request respirators for voluntary use from their employers at no cost and without fear of retaliation from their employers.
  • Employees who are not fully vaccinated and exhibit COVID-19 symptoms must be offered testing by their employer.
  • Employer-provided housing and transportation are exempt from the regulations where all employees are fully vaccinated.
  • Employers must review the Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.
  • Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and evaluate the use of additional air cleaning systems.

An executive order issued by Gavin Newsom removes the typical waiting period that a normal change in standards would go through and instead makes these changes effective immediately.

An article covering the ruling may be found here.

What do employers need to do?
Employers should review the changes and make any needed changes to their workplace practices in order to stay in compliance with the ETS.

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Supplemental Paid Sick Leave for Small Employers in Marin County, California

Update Applicable to:
All employers in California’s unincorporated areas with 25 or fewer employees.

What happened?
On June 8, 2021, Marin County, California’s Board of Supervisors enacted an urgency ordinance.

What are the details?
The urgency ordinance will require that employers with 25 or fewer employees within Marin County’s unincorporated areas must provide supplemental paid sick leave (SPSL) to their employees for certain COVID-19 related reasons through September 30, 2021.

Employees who have worked for an employer for more than two hours in the County’s unincorporated boundaries are applicable. Full-time employees normally scheduled to work 40 or more hours per week are entitled to received 80 hours of SPSL where other employees will receive SPSL equal to their average worked hours in a two-week period over the prior six months.

The hours will be provided to employees in addition to any paid sick leave that may be available to the employee(s) under the California Healthy Workplace Healthy Family Act and pre-existing paid time off (vacation, sick and/or PTO) that was provided before March 16, 2020. Employers cannot require employees to use other benefits they provide before they can use SPSL. If as of June 8, 2021, an employee has 80 hours of accrued paid sick leave benefits or 160 hours of a combination of paid sick leave, vacation, and paid time off benefits, then an employer’s obligation to provide SPSL has been satisfied. Employers are also able to offset their SPSL obligation by the amount of COVID-19 paid sick leave hours already furnished to an employee under the FFCRA or Cal/OSHA regulations, along with any future substantially similar state of federal COVID-19 paid sick leave registration.

Employers must pay employees using SPSL at their regular rate of pay, although the ordinance does not address how to calculate the rate, but employers do not need to pay more than $511 per day or the $5,110 overall for an employee using SPSL.

Covered employees can use SPSL for their own personal reasons or to care for or assist an “individual”. An individual is an employee’s immediate family member, a person who regularly resides in the employee’s home, and a person with whom the employee has a relationship that creates an expectation that the employee would care for the person if quarantined, or when their care provider closes or is unavailable due to a public health or official’s recommendation. It does not include a person with whom the employee has no personal relationship. Covered uses of the provided SPSL include the following:

  • The employee:
    • Has been advised by a health care provider to isolate or self-quarantine, or is caring for an individual so advised.
    • Is subject to a federal, state, or local quarantine or isolation order due to COVID-19, or is caring for an individual subject to such an order.
    • Is experiencing COVID-19 symptoms and is seeking a medical diagnosis, or is caring for an individual experiencing such symptoms.
    • Obtaining a COVID-19 vaccine or experiencing symptoms related to the vaccine that prevent the employee from being able to work or telework.
  • Employee is caring for an individual whose school, senior or childcare provider, is closed or unavailable due to COVID-19.
    • Employers of a healthcare provider or emergency responder can deny a leave request if they make a good-faith determination that granting leave would create a staffing shortfall such that operational needs dictate denial of some or all of the leave request.

Employers may require employees to follow a reasonable notice procedure for any foreseeable absences and can require employees to identify the basis for the leave but cannot require employees to furnish a doctor’s note or other supporting documentation.

Within three days of the County’s publishing the ordinance, employers must provide notice, in English and Spanish, to employees of their rights under the ordinance in a manner calculated to reach all employees, including posting a notice in the workplace, on any intranet or app-based platform and/or via email. The ordinance further requires that for at least three years, employers must keep a record of each employee’s name, hours worked, and pay rate.

The ordinance can be read here.

Articles on the ordinance can be read here and here.

What do employers need to do?
Employers should read the above information, as well as the ordinance to ensure they are in compliance with their workplace policies.

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Sonoma County California EPSL Ordinance Extended

Update Applicable to:
Employers in Sonoma County, California

What happened?
On June 8, 2021, the Sonoma County, California Board of Supervisors enacted Urgency Ordinance to amend Emergency Paid Sick Leave (EPSL) Ordinance No.6336.

What are the details?
The amendment to the ordinance extends the expiration date from July 1, 2021 to September 1, 2021.

The amendment now requires employers to provide 80 hours of 2021 EPSL to any employees whose normal work schedule is 40 or more hours per week and for other employees to receive a proportionate amount based on weekly worked hours. The employees can use the EPSL from January 1, 2021 through to September 30, 2021. Employees are able to use their EPSL for COVID-19 vaccines or if they are ill after receiving the vaccine and cannot work or telework.

Employers are able to offset the amount of Sonoma Valley EPSL by the amount of similar paid leave they must provide under California’s 2021 Supplemental paid sick law, Cal/OHSA exclusion pay requirements, or that they voluntarily provide (and receive federal tax credits for) under the federal Families First Coronavirus Response Act (FFCRA).

If an employee has at least 80 hours of accrued paid sick leave benefits or 160 hours of a combination of paid sick leave, vacation, and paid time off, as of June 8, 2021, this satisfies the employer’s 2021 Sonoma County EPSL obligations. If any employee has less than 80/160 hours by this date, the employer must provide EPSL in the amount of the deficit but may credit the COVID-19 paid sick leave hours provided under the California 2021 supplemental paid sick law, CAL/OSHA exclusion pay requirements or the voluntarily provided paid leave under FFCRA outlined in ARPA.

Employers that are already subject to California’s 2021 supplemental paid sick leave law, with 26 or more employees, the Sonoma County changes should have no impact. For employers with 25 or fewer employees that elected not to voluntarily provide leave per the conditions outlined for FFCRA under ARPA, however, and whose benefits package might not wholly or partially meet the generous policy exception, now would be an appropriate time to consider whether to revisit that decision.

The act can be read here.

An article on the act can be read here.

What do employers need to do?
Employers should review the information provided, as well as the ordinance, to ensure compliance with their workplace policies.

 

 

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