August 2021: California Department of Public Health Issues Health Care Worker Mandate

Update Applicable to:
All employers in California who operate or have employees in the facilities listed below. 

What happened?
On July 26, 2021, the California Department of Public Health (CDPH) issued a new order for health care workers due to the rise in COVID-19 cases. 

What are the details?
Effective August 9, 2021, employers with employees in the following facilities are covered and applicable to the COVID-19 prevention order released by the CDPH. With full compliance being required to have been achieved by August 31, 2021.

  • Acute health care and long-term care settings, including:
    • General Acute Care Hospitals
    • Skilled Nursing Facilities (including Subacute Facilities)
    • Intermediate Care Facilities
  • High-risk congregate settings, including:
    • Adult and Senior Care Facilities
    • Homeless Shelters
    • State and Local Correctional Facilities and Detention Centers
  • Other health care settings, including:
    • Acute Psychiatric Hospitals
    • Adult Day Health Care Centers and Adult Day Programs Licensed by the California Department of Social Services
    • Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
    • Ambulatory Surgery Centers
    • Chemical Dependency Recovery Hospitals
    • Clinics and Doctor Offices (including behavioral health, surgical)
    • Congregate Living Health Facilities
    • Dental Offices
    • Dialysis Centers
    • Hospice Facilities
    • Pediatric Day Health and Respite Care Facilities
    • Residential Substance Use Treatment and Mental Health Treatment Facilities 

The order requires that the covered facilities verify the vaccination status of workers and implement a plan to track verified worker vaccination statuses. In addition, the order mandates COVID-19 testing requirements for employees who are unvaccinated or incompletely vaccinated. The requirements are based on the type of facility that the employee works at. The order also sets mask and respirator requirements for covered facilities that must be followed.

The order is here

An article on the order is here. 

What do employers need to do?
Employers in covered facilities should review the order in full here and follow the guidance provided to implement the requirements stated to stay in compliance with the CDPH and their COVID-19 prevention efforts provided by the order.

July 2021 California HR Legal Updates

Santa Clara County Phases out Vaccination Tracking

Update Applicable to:
All employers in Santa Clara County, California.

What happened?
On June 21, 2021, The Santa Clara County Health Officer issued a new order that is phasing out the order from May 18, 2021.

What are the details?
Under the new June 21, 2021 Order, the May 18, 2021 Local Health Order is rescinded as long as employers and government entities meet certain requirements.

Employers and government entities are required to have completed two rounds of ascertainment of vaccination status of personnel pursual of the May 18, 2021 Order. Once the two rounds of ascertainment have been completed the May 18, 2021 Order will not have further force of effect with respect to that employer. If an employer has not, or does not, complete two rounds of ascertainment, it may be subject to enforcement under the May 18 Order and may be required to pay fines up to $5,000 per violation per day.

Employers and government entities need to be able to demonstrate that they completed two rounds of ascertainment. This means the employer must maintain appropriate records for so long as the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards remain in force and effect.

The order also includes recommendations to keep the community safe from COVID-19:

  • get vaccinated;
  • continue to emphasize outdoor activities;
  • avoid travel if you’re not fully vaccinated; and
  • continue to regularly test for COVID-19 if you’re not fully vaccinated and, regardless of vaccination status, get immediately tested if you have COVID-19 symptoms.

The Order advises that “With today’s announcement, once an entity has completed its second ascertainment of vaccination status, everyone should continue to follow the State’s rules, but there are no broader local health orders in effect in Santa Clara County.” Under the State’s rules, face coverings are still required—regardless of vaccination status—in healthcare settings; at schools, childcare, and youth settings; on public transit; in jails and correctional facilities; and at homeless and emergency shelters.

The Order can be read here.

Articles on the Order can be read here and here.

What do employers need to do?
Employers in Santa Clara County should follow the order and its guidance to stay compliant with County rules. 

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Mask Mandates Enacted for Los Angeles County

Update Applicable to:
All employers in Los Angeles.

What happened?
On July 16, 2021, the Los Angeles department of public health released a new mask mandate order for all persons in Los Angeles.

What are the details?
The Order, effective July 17, 2021, requires all persons, regardless of vaccination status, to wear face masks indoors in all public settings, venues, gatherings, and businesses (e.g., offices, retail, restaurants, theaters, family entertainment centers, meetings, state and local government offices serving the public, among others). Attendees at Mega Events (e.g., concerts, conferences, events where more than 5,000 people attend), must wear face coverings for all indoor events, and outdoor events where 50% of the structure has adjacent impermeable walls, such as concourses and concession stands.

In addition, the Order recommends the use of either double masking or N95 respirators in all public and private indoor settings, as well as crowded outdoor settings where there is close contact with unvaccinated persons or those who are not yet fully vaccinated. 

All employers should require all employees, regardless of their vaccination status, to wear face masks while working indoors, except in the following situations:

  • In workplaces where employees may be exempt from wearing a face mask when performing specific tasks that cannot feasibly be performed while wearing a mask. This exception is limited to the period in which the task is actually being performed. Such employees must be tested for COVID-19 twice a week unless the employer is provided with the employee’s proof of COVID-19 vaccination or proof of recovery from a laboratory-confirmed COVID-19 test within the past 90 days.   
  • Anyone instructed not to wear a face mask by their health care provider. In these cases, employers should allow employees to seek accommodation.  

The Order will remain in effect until further notice by the Health Officer.

The order can be read here.

Articles on the order can be read here and here.

What do employers need to do?
Employers should review the order as well as update their current health and safety policies to continue to stay in compliance.

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California Supreme Court Confirms Rates for Missed Meals and Breaks 

Update Applicable to:
All employers in California. 

What happened?
On July 16, 2021, the California Supreme Court ruled on the Ferra v. Loews Hollywood Hotel, LLC case, bringing a new standard for missed meal compensation rates. 

What are the details?
The California Supreme Court has ruled that when an employer fails to provide a legally compliant meal period or rest break and the employer is paying an employee one additional hour of pay at the employee’s “regular rate of compensation”, the rate must be the employee’s “regular rate of pay”.  

The regular rate of pay, for purposes of overtime, should be at one-and-a-half times an employee’s regular rate of pay or twice that rate for double time. If an employee receives hourly pay plus incentives (such as non-discretionary bonuses), then the regular rate factors in the incentive pay to come up with an average hourly rate of pay which is higher than the base hourly rate. Similarly, if an employee receives multiple different hourly rates of pay with no additional incentives, the regular rate for overtime purposes will be the weighted hourly rate derived from all the different hourly rates for particular workweeks within the pay period. 

The Court did determine that their decision does apply retroactively but would not revive claims barred by the applicable statutes of limitation.  

 An article on the ruling can be read here

The court document can be read here.  

 What do employers need to do?
Employers should review the information above and the court documents to continue to remain in compliance with their meal, rest, and recovery period policies. The law firm, Fisher Phillips, suggests taking three steps into consideration; vigilantly comply with meal and break rules; use the correct formula – but take steps to prevent repeat problems, and determine what to do about problems in your past.  
 
More information on their suggested steps can be read here.  

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The City of Pasadena Requires Face Coverings Regardless of Vaccination Status

Update Applicable to:
All employers in Pasadena, California.

What happened?
On July 12, 2021, the City of Pasadena health office issued the “Order for Wearing of Face Masks in Public Settings”.

What are the details?
Effective July 22, 2021, the Order requires all individuals, regardless of vaccination status, to wear face coverings in all indoor public settings, venues, gatherings, and businesses. The locations listed in which all individuals must wear face coverings include offices, retail, restaurants and bars, theaters, family entertainment centers, conference centers, and state and local government offices serving the public.

To comply with the order, businesses must take the following steps:

  • Require all employees to wear face coverings, regardless of vaccination status.
  • Require all patrons to wear face coverings, regardless of vaccination status.
  • Make face masks available to patrons.
  • Post clearly visible and easy-to-read signage at all entry points for indoor and outdoor settings to communicate the masking requirements to all patrons.
  • Test for COVID-19 at least twice per week all employees who cannot feasibly wear a mask while performing their work.

The order specifically exempts the following employees from the face covering mandate: 

  • Persons who are working alone in a closed office or room
  • Persons who are actively eating and/or drinking
  • Employees performing specific tasks which cannot feasibly be performed while wearing a mask. This exception is limited to the period of time in which such tasks are actually being performed.

The order will stay in effect until the health officer rescinds the Order in writing.

The Order can be read here.

An article on the Order can be read here.

What do employers need to do?
Employers should read the information and the Order to make required changes and ensure compliance with business operations and employee safety.

July 2021: Los Angeles Issues New Vaccine Paid Sick Leave*

Update Applicable to:
All employers in Los Angeles.

What happened?
On June 24, 2021, Mayor Garcetti issued the Vaccine Paid Sick Leave Due to COVID-19 (CVL) Order.

What are the details?
The order, effective immediately, requires all employers to provide covered employees with CVL to receive a COVID-19 vaccine. This also includes the time an employee spends traveling to and from an appointment and the time to recover from vaccination-related side effects that prevent the employee from being able to work or telework.

Employees who are qualified are those who work within the geographic boundaries of Los Angeles for an employer, and who have been employed with the same employer for 60 days. A collective bargaining agreement (CBA) in place on June 24, 2021, may supersede the CVL Order if it contains provisions providing CVL. If that CBA expires or is open for renegotiation, compliance with the CVL Order can be waived if the waiver is explicitly set forth by the CBA in clear and unambiguous terms. If the CBA does not address CVL, an employer must comply with the CVL Order unless and until the CBA is amended.

The CVL Order is retroactive to January 1, 2021. Qualified employees who on or after January 1, 2021, took leave that would have been qualified leave for the CVL Order and was paid less than what the CVL Order requires can, on or after June 24, 2021, submit a request (written or oral) to receive retroactive payment. Employers must make the payment on or before the payday for the next full pay period after the request has been made. If employers required employees to use leave other than the California Supplemental Paid Sick Leave Due to COVID-19 (SPSL) or Los Angeles SPSL such as vacation, paid/unpaid time off, other sick leave benefits, then upon an employee’s request the employer must reclassify paid leave taken as CVL and restore the leave the employee took. Any reclassification, restoration, or adjustment of other leave previously taken, as well as the remaining hours of CVL, must be reflected on the employee’s pay stub on or before the payday for the next full pay period after the employee’s request.

Employer’s full-time employees must be provided up to four hours of CVL to obtain each vaccine injection, and up to either hours of CVL to recover from any vaccination-related side effects that prevent the employee from working or teleworking. For non-full-time employees, the amount of CVL is prorated based on the average number of hours worked in the 60 days preceding injection or recovery. The following is an example of the calculation included in the order:

  • Employee worked 240 hours in the last 60 days (including non-working days). Dividing 240 by 60 creates a four-hour daily average. Multiplying the daily average by seven produces a 28-hour weekly average. The employee is eligible for 2.8 hours (2 hours 48 minutes) per injection and 5.6 hours (5 hours 36 minutes) for recovery.

Although the CVL Order requires all covered employers to provide the same amount of CVL, employers with 26 or more employees need only provide CVL to employees who have exhausted all available California SPSL or Los Angeles SPSL.

Employers that provide another supplemental benefit that is in addition to any other accrued leave- including but not limited to California PSST and California SPSL, for leave taken on or after January 1, 2021, that is payable for the same reasons as CVL and is paid in an amount that equals or exceeds what the CVL order requires, can count those supplemental benefit hours toward the amount of CVL hours they must provide.

The pay for employees will differ based on if they are exempt or non-exempt. For non-exempt employees, the employers must pay CVL at the highest of the following rates:

  • Employee’s normal rate of pay for the workweek the employee takes leave;
  • L.A. minimum wage; or
  • Employee’s average hourly pay for the preceding 60 days (excluding overtime).

Exempt employees are to be paid in the same manner as they calculate wages for other forms of paid leave. The pay cap under the order is $511 per day (or $255.50 for each 4-hour period) or $1,022 in the aggregate unless the federal government establishes a higher pay amount.

Employers cannot discharge, reduce in compensation, or otherwise discriminate against employees for opposing any practice the order prohibits, requesting to use or actually using CVL, participating in proceedings related to the CVL Order, for seeking to enforce, or otherwise asserting, CVL Order rights. Additionally, employees cannot waive their CVL Order rights except in a CBA.

The order can be read here.

An article on the Order can be read here.

*  Please note that this leave is a new entitlement whereas the “Los Angeles Revises COVID Sick Leave Order” article is discussing an expansion of existing benefits provided by the PSL Program within LA.

What do employers need to do?
Employers should review the law and the above information with their current leave policies to ensure they are in compliance with the order.

July 2021: Los Angeles Revises COVID-19 Sick Leave Order

Update Applicable to:
All employers in Los Angeles.

What happened?
On June 24, 2021, Mayor Garcetti revised the Supplemental Paid Sick Leave Due to COVID-19 (SPSL) Order.

What are the details?
The revised order is applicable to employers with either 500 or more employees in L.A. or 2,000 or more employees in the U.S.

The order now allows employees to use the Los Angeles SPSL to cover time off to receive a COVID-19 vaccine, including time to travel to and from the appointment as well as recovering from any symptoms. Secondly, the order now has an exemption that permits employers to require employees to verify their receipt of a COVID-19 vaccine. The order still generally prohibits employers from requiring a doctor’s note or other documentation to substantiate SPSL use.

The order can be read here.

An article on the order can be read here.

What do employers need to do?
Employers should review their leave policies and make any needed changes to ensure they are in compliance with the updated order.

June 2021 California HR Legal Updates

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.

 

 

May 2021 California HR Legal Update

Cal/OSHA Releases FAQ Regarding COVID-19 Emergency Temporary Standards

 Update Applicable to:
All California employers.

What happened?
On May 5, 2021, Cal/OSHA issued FAQs meant to provide clarity for employers regarding the exclusion of fully vaccinated employees in the workplace if they were exposed to a confirmed positive COVID-19 case.

What are the details?
Prior to the FAQs, employers were required to still fully exclude employees who were exposed to COVID-19, regardless of vaccination status. The new FAQs make it clear that employers do not need to exclude fully vaccinated employees who are not exhibiting symptoms of COVID-19 after exposure.

This guidance was published before the Centers for Disease Control (CDC) published their guidance regarding mask requirements for people fully vaccinated individuals against COVID-19. Employers will need to wait until June 15, 2021, for any major developments regarding face masks in California.

The FAQs can be found here.

What do employers need to do?
California employers should be wary of the requirements created by the California Department of Public Health, as their requirements are not entirely in line with the Emergency Temporary Standards enforced by Cal/OSHA.

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Los Angeles County Passes Paid COVID-19 Vaccine Leave Ordinance

Update Applicable to:
All California employers in Los Angeles County.

What happened?
An urgency ordinance for COVID-19 Vaccine Leave (CVL) was passed on May 18, 2021, adding Chapter 8.205 to Title 8.

What are the details?
Chapter 8.205 was enacted on May 18, 2021 – it is retroactive to January 1, 2021, and will remain in effect until August 31, 2021. It will provide COVID-19 vaccine leave in addition to any job-protected paid leave employees receive under California’s paid sick leave (PSL) law and the Healthy Workplace Healthy Family Act. It applies to all employees performing any work in Los Angeles County’s unincorporated areas and more importantly, it is only available to those who have exhausted all available California supplemental paid sick leave (SPSL).

Full-time employees who have exhausted California SPSL can use up to four hours of CVL per injection, whereas part-time employees can use a proportionate amount, based on their normally scheduled work hours over the two-week period before the injection. As an example, the ordinance provides that 20-hour-per-week employees can use two hours of CVL per injection.

The CVL hours must be paid at their “normal rate of pay,” which is calculated using the employee’s highest average two-week pay throughout January 1, 2021 through May 18, 2021. The ordinance also requires employers to conspicuously display a written notice that is being created by the Los Angeles County Department of Consumer and Business Affairs (LACDCBA). As of May 21, 2021, the notice has not been posted so employers should monitor their website.

The ordinance can be read here.

An article on this topic can be found here.

What do employers need to do?
Employers should update their workplace policies to follow the guidelines and display the notice from LACDCBA.

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Santa Clara County Required Vaccine Inquiries

Update Applicable to:
All Santa Clara County employers.

What happened?
The County of Santa Clara Emergency Operations Center issued a May 18 Order of The Health Officer Of the County of Santa Clara establishing focused safety measures to protect the community from COVID-19 requiring businesses to obtain the vaccination status of all “personnel” who are currently or will be working at a facility or worksite in the county.

What are the details?
Employers will be required by July 1, 2021, to inquire of their employees if they are vaccinated. Employers will need to keep the information documented and maintain the information securely. Employees are not required but employers are encouraged to see proof, such as an individual’s vaccine card. Until an employee certifies that they are fully vaccinated, they will be treated as if they were unvaccinated. Employers should inquire with people who refuse to provide an answer and employees who identify as unvaccinated every 14 days about their vaccination status. To maintain compliance with the order, businesses must maintain a record of (1) the request for vaccine status and (2) who is fully vaccinated and who is not fully vaccinated, until the provision of the Order requiring ascertainment of vaccination status is no longer effective.

The order can be found here.

What do employers need to do?
Santa Clara employers should update their workplace policies to reflect the new requirements.

April 2021 California HR Legal Updates

California Passes State-wide Right to Recall

Update Applicable to:
California employers operating in specific industries, see list below.

What happened?
On April 16, 2021, Governor Newsom signed SB 93 into law, creating Labor Code section 2810.8.

What are the details?
SB 93 was immediately effective upon its signing on April 16, 2021, and remains in effect until December 31, 2024. SB 93 does NOT apply to every California employer. SB 93 applies generally to the hospitality, travel, and business services sectors. Specifically, SB 93 applies to:

  • Airports (including airport hospitality operations and airport service providers);
  • Building services (janitorial, building maintenance, or security services);
  • Certain hospitality enterprises of a certain size (hotel, private club, event center, airport hospitality operation, airport service provider, or the provision of building services to office, retail, or other commercial buildings); and
  • Event centers (50,000 square feet or 1,000 seats that are used for public performances, sporting events, business meetings).

Employers in these industries (or on the fringes) are advised to consult with their employment counsel to review the detailed language of SB 93 about potential exclusions or requirements for coverage. For example, a private club – although generally listed above – is required to comply with SB 93 only if it, “operates a building or complex of buildings containing at least 50 guest rooms or suites of rooms that are offered as overnight lodging to members.”

SB 93 does not apply to all laid-off employees. SB 93 applies only to, “Laid-off employee … whose most recent separation from active service was due to a reason related to the COVID-19 pandemic….”

The term, laid off “due to a reason related to the COVID-19 pandemic,” is defined broadly and deemed to include any form of separation from employment related to “a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, non-disciplinary reason due to the COVID-19 pandemic.”

To be eligible under SB 93, the laid-off employee also must have been “employed by the employer for 6 months or more in the 12 months preceding January 1, 2020.”

Once a covered business starts to reopen, within five business days of re-opening the positions, the business must offer the “laid-off employees” all job positions for which the laid-off employees are qualified. The positions must be those that were eliminated due to “a reason related to the COVID-19 pandemic.” According to SB 93, “A laid-off employee is qualified for a position if the employee held the same or similar position at the enterprise at the time of the employee’s most recent layoff with the employer.” SB 93 states that notice of reopening must be given to the employees “…in writing, either by hand or to their last known physical address, and by email and text message to the extent the employer possesses such information.” If more than one employee is entitled to preference for a position, the employer shall offer the position to the laid-off employee with the greatest length of service based on the employee’s date of hire for the enterprise.

Note that for SB 93, a business day is defined to mean any calendar day except Saturday, Sunday, or any official state holiday. 

SB 93 does NOT create a private civil right of action for former employees, it does allow those employees to file a claim with the State Labor Commissioner.

Article covering SB 93 can be found here, here, and here.

What do employers need to do?
Covered employers should review the needed notice procedures and update their workplace policies to reflect the new requirements.

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Update: SB-95 FAQ Changes

Update Applicable to:
California Employers subject to SB-95.

What happened?
The Division of Labor Standards Enforcement (DLSE) has updated its FAQs to answer more questions commonly asked regarding SB-95.

What are the details?
An article covering exactly what was updated can be read here.

The FAQ can be found here.

What do employers need to do?
Employers impacted by SB-95 who have general questions regarding the bill should review the FAQ.

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Reminder of Local Right of Recall Ordinances

Update Applicable to:
Employers operating hotels and commercial properties within the cities of Long Beach, Los Angeles, Oakland, Pasadena, San Diego, and Santa Clara.

What happened?
Employers within several California cities will need to keep local ordinance requirements in mind when returning to normal business operations over the coming months.

What are the details?
The following table is provided by Jackson Lewis in this article.

CityCovered Employers
Long Beach· Commercial property employers that provide janitorial services (25 or more employees)
· Hotel employers (25 or more employees)
 Los Angeles· Airport employers
· Commercial property employers that employ 25 or more janitorial, maintenance, or security service workers.
· Event center employers · Hotel Employers
Oakland· Airport hospitality employers
· Event center employers
· Hotel employers
· Restaurant employers (more than 500 employees)
Pasadena· Hotel employers
San Diego· Commercial property employers
· Event center employers
· Hotel employers
Santa Clara· Building service employers
· Food service employers
· Hotel employers

Each city will link to an article covering the ordinance in more detail.

What do employers need to do?
Covered employers should follow the procedures outlined in the ordinances to remain compliant.

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San Francisco Mandates PPE Requirements

Update Applicable to:
The Ordinance covers:

  • Establishments primarily engaged in the retail sale of food (grocery stores, supermarkets, convenience stores, restaurants, cafes, etc.);
  • Establishments primarily engaged in the retail sales of medication, pharmaceutical, or medical supplies (drug stores, pharmacies, etc.); and
  • On-demand delivery services, defined as online or mobile applications that offer delivery from no fewer than 20 restaurants, grocery stores, drug stores, or other essential businesses (Postmates, Uber Eats, Grubhub, Doordash, and the like).

What happened?
The San Francisco Board of Supervisors passed the Grocery Store, Drug Store, Restaurant, and On-Demand Delivery Services Employee Protections ordinance, requiring San Francisco employers to provide additional health and scheduling protections to employees during the COVID-19 public health emergency.

What are the details?
Any person who, in a particular week, performs at least two hours of work in the City and County of San Francisco. Also, On-Demand Delivery Services drivers and shoppers are considered “employees,” regardless of how they are classified. What this means is that independent contractors of On-Demand Delivery Services are covered under this ordinance.

Covered Employers have five main requirements under the ordinance, with the most significant affecting On-Demand Delivery Services:

  1. Provide employees with hand sanitizer, soap, and water, or effective disinfectant in the workplace. On-Demand Delivery Services Employers must provide, or reimburse, employees for the reasonable cost of purchasing necessary hand sanitizer, disinfecting cleaning supplies, or any necessary personal protective equipment (PPE), such as gloves and masks.
  2. Provide a Social Distancing Protocol to each employee who works at a facility and post the Social Distancing Protocol in each facility. On-Demand Delivery Services Employers must provide the Social Distancing Protocol in a manner calculated to reach employees, whether by electronic communication or posting conspicuously on Employers’ internal platforms.
  3. Offer employees who make deliveries the option of a “no-contact” delivery method where feasible with detailed guidance on how to safely make both in-person and no-contact deliveries.
  4. Continue to regularly disinfect high-touch surfaces. On-Demand Delivery Services Employers must require delivery drivers to regularly disinfect high-touch surfaces in their vehicles and compensate them for the time spent doing so.
  5. When reasonably feasible, approve an employee’s request to cancel scheduled work for any reason for which the employee may otherwise use leave under San Francisco’s Paid Sick Leave ordinance and allow eligible employees to use available accrued paid sick leave, FFCRA Emergency Paid Sick Leave, San Francisco’s Public Health Emergency Leave, or reschedule the work.

An employer may not retaliate against an employee for requesting the protections contained in this ordinance. Doing so will potentially result in legal awards to the Employee including:

  • Reinstatement,
  • Backpay, and
  • Other legal and/or equitable relief.

The ordinance will be lifted on the 61st day following enactment, or when the Public Health Emergency is lifted, whichever occurs first.

The ordinance includes a workplace poster requirement. The required workplace poster can be found here.

An article covering exactly what was updated can be read here.

What do employers need to do?
San Francisco employers will likely need to update their workplace compensation practices to stay in compliance with this ordinance.  

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Update: San Francisco Hazard Pay Notice Released

Update Applicable to:
San Francisco Employers subject to the COVID-Related Hazard Pay Ordinance.

What happened?
The San Francisco Office of Labor Standards Enforcement has released the official notice for the COVID-Related Hazard Pay Ordinance.

What are the details?
The City of San Francisco, California has released their COVID-Related Hazard Pay Ordinance notice. This new notice, effective March 22, 2021, reflects that grocery and pharmacy retail stores with at least 500 employees worldwide, including at least 20 employees in San Francisco, must pay Hazard Pay to all employees whose base wage is less than $35 per hour. These requirements also apply to janitorial and security contractors of any size at covered grocery and pharmacy retail stores. The poster revision date is April 7, 2021.

The required notice can be found here.

What do employers need to do?
Employers impacted by SB-95 who have general questions regarding the bill should review the FAQ.

March 2021 California HR Legal Updates

California Cities Continue Introducing Hero Pay Ordinances

Update Applicable to:
Large retail employers operating in Pomona or Santa Ana.

What happened?
Cities across California continue to pass ordinances requiring large retail and grocery stores to provide a paid premium to their employees, as they work through the pandemic.

The ordinance requires that employers notify covered workers in writing about their rights. The notice must include information regarding (a) the right to premium pay guaranteed by the ordinance; (b) the right to be protected from retaliation; and (c) the right to bring a civil action for an employer’s violation of the ordinance. Employers must post the required notice in a location that employees use for breaks, as well as in an electronic format accessible to the covered workers via a smartphone application or an online web portal. Employers must provide the notice in English and any language known by the employers to be the covered workers’ primary language.

What are the details?
Pomona defines a covered employer as: “Retail establishments” that employ 300 or more employees nationwide and employ more than 10 employees per location in Pomona. Pomona. Additionally, “any grocery store, retail pharmacy or ‘big box retailer’ who employs 300 or more employees nationally and employs more than 10 employees per location in the City.” (Emphasis in original).

Santa Ana defines a covered employer as: grocery store or retail pharmacy “hiring entities” that employ more than 300 workers nationally and more than 15 employees per grocery store or pharmacy in the City of Santa Ana.

Both cities are requiring employers to pay the same premium to their employees. Each employee working in the applicable location will need to pay a premium of $4.00 an hour.

The ordinance includes provisions to protect workers. The protections bar employers from reducing employees’ hours, altering their employment status, or limiting their earning capacity in response to the passage of the ordinance.

Employers are required to keep records showing compliance with the ordinances for up to two years.

An article going more in-depth for the Santa Ana ordinance can be found here. The article for the City of Pomona can be found here.

What do employers need to do?
Large grocery store or retail employers should review the linked articles to review the needed changes that may be required of them in various locations.

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New California COVID-19 Paid Sick Leave Requirements Update

The Labor Commissioner’s Office has made the required notice available online, here. Employers will need to post the notice in the workplace or distribute the notice via other means, like email, to any employees that are unlikely to see the notice in the workplace.

The original post regarding SB-95 can be found here.

March 2021: New California COVID-19 Paid Sick Leave Requirements (SB-95 Update)

New COVID-19 Paid Sick Leave

Update Applicable to:
All California employers with more than 25 employees.

What happened?
On March 19, 2021, SB-95 was signed by Governor Newsom and has an effective date of March 29, 2021.

What are the details?
SB-95 acts as a revamp to the previously provided COVID-19-related paid sick leave that California mandated for employers. This time around there are several expansions to the requirements, and even more employers will be required to provide this leave. The bill also applies retroactively, back to January 1, 2021. The act will expire on September 30, 2021.

Covered Employers
The bill impacts employers with more than 25 employees.

Covered Employees
Any employee that is unable to work remotely or telework.  However, the legislation does add a provision for in-home supportive services, meaning that they will now be included in the coverage of the legislation.

Qualified Reasons
Covered employees will be able to utilize the COVID-19-related paid sick leave for the following reasons:

  • The covered employee or provider “is subject to a quarantine or isolation period related to COVID-19” as defined by an order or guidelines of the California Department of Public Health, the U.S. Centers for Disease Control and Prevention, “or a local health officer who has jurisdiction over the workplace.”
  • A health care provider has advised the covered employee or provider to self-quarantine because of COVID-19–related concerns.
  • The covered employee or provider “is attending an appointment to receive” a COVID-19 vaccine.
  • The covered employee or provider “is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework.”
  • The covered employee or provider is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
  • “The covered employee is caring for a family member … who is subject to an order or guidelines described” in qualifying reason (1), or who a health care provider has advised to self-quarantine, as described in qualifying reason (2), SB-95 defines family members to include the employee’s spouse, registered domestic partner, parent (including parents-in-law), child (regardless of age or dependency), grandparent, grandchild, and sibling.
  • The covered employee or provider “is caring for a child … whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.”

Entitlement Amount
Full-time employees will generally receive 80 hours of paid sick leave in most cases, and part-time workers will receive an average of their last two week’s hours worked. Workers are entitled to the 80 hours if the company considers the employee to be full-time, or if the employee works at least 40 hours per week in the two previous weeks before the usage of their paid sick leave. Part-time employees will have their leave entitlement calculated based on the following:

  1. “If the covered employee has a normal weekly schedule, the total number of hours the covered employee is normally scheduled to work for the employer over two weeks.”
  2. “If the covered employee works a variable number of hours, 14 times the average number of hours the covered employee worked each day for the employer in the six months preceding the date the covered employee took COVID-19 supplemental paid sick leave. If the covered employee has worked for the employer over fewer than six months but more than 14 days, this calculation shall instead be made over the entire period the covered employee has worked for the employer.”
  3. “If the covered employee works a variable number of hours and has worked for the employer for14 days or fewer, the total number of hours the covered employee has worked for that employer.”

Retroactive Leave Provision
SB-95’s retroactive provision allows employees to replace hours they had used since January 1, 2021, of paid leave, and instead to use the COVID-19 related paid sick leave. This allows employees to regain the hours of paid leave they may have used in the past, by instead reducing their amount of COVID-19-related paid sick leave. The retroactive provision may only apply for the qualifying leave reasons that are listed above. Once an employee makes an oral or written request for such, the employer must make this payment on or before the payday for the next full pay period after the employee makes the oral or written request. The employee’s wage statement must separately show and list the payment and reflect the hours available, rate of pay, and corresponding COVID-19-related paid sick leave balance after this type of request.

Leave Credit
Employers who were still offering Families First Coronavirus Response Act (FFCRA) leave after December 31, 2020, may credit the amount of FFCRA paid sick leave used by employees against the required hours to be provided by this legislation. These credits only apply for FFCRA usage that took place after December 31, 2020.

Pay Calculation and Cap
SB-95 requires employers to calculate their nonexempt employees pay when using the paid sick leave to be the higher of the following four calculations:

  1. The employee’s “regular rate of pay for the workweek in which” COVID-19 SPSL was taken, regardless of whether the employee worked overtime in that workweek;”
  2. “The covered employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment;”
  3. The California minimum wage; or
  4. The local minimum wage.

The bill requires employers to pay their exempt employees the same as they would for the usage of other paid leaves the employer offers. Employee pay for usage of COVID-19 related paid sick leave is capped at $511 per day and $5,110 in the aggregate for each covered employee.

Usage of Other Paid Leave
Employers may not force employees to use their other forms of paid leave they might have banked before their usage of the COVID-19-related paid sick leave. However, employers may require employees to use their COVID-19-related paid sick leave before utilizing the exclusionary pay required by the California Division of Occupational Safety and Health’s, or Cal/OSHA’s, COVID-19 Emergency Temporary Standard (ETS).

Wage Statement Requirement
Wage statements have not changed since the requirements from last year. Employers must show the balance of available COVID-19-related paid sick leave on the employee’s wage statement as a distinct line item. It must be separated from other forms of paid sick leave the employee may have. The wage statement requirement becomes effective the first full pay period after the statute’s effective date.

Notice Requirement
Finally, the bill will include a posting and notice requirement. Employers will need to post a notice of the COVID-19-related paid sick leave in a conspicuous place in the workplace. The model notice will be provided by the labor commissioner within seven days of the statute’s enactment. If the covered employees are not likely to see the notice in the workplace, the employer may satisfy the notice requirement by distributing the notice through electronic means, such as email.

Applicable Links
The full legislation of SB-95 can be found here.

Articles summarizing the bill can be found here and here.

A nearly identical bill is making its way through the California legislature and may pass as well, this one under the name AB-84. It contains the same requirements as SB-95, but as of March 19, 2021, the bill has only just finished review by a committee. AB-84 can be read and tracked here.

What do employers need to do?
Covered California Employers should review the above information and update their workplace practices to reflect the requirements. Training for management staff may be needed to ensure employees are not accidentally denied a leave they are entitled to. Employers should keep a watch on the Labor Commissioner’s website to ensure they receive the required notice as soon as possible. The required posting may be placed online at this address.

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Update

The Labor Commissioner’s Office has made the required notice available online, here. Employers will need to post the notice in the workplace or distribute the notice via other means, like email, to any employees that are unlikely to see the notice in the workplace

March 2021: San Francisco Passes New COVID-19 Related Ordinance

Update Applicable to:
All employers with employees within the city of San Francisco.

What happened?
The San Francisco Board of Supervisors passed the COVID-19 Related Employment Protections Ordinance on January 26, 2021.

What are the details?
Effective March 7, 2021, the COVID-19 Related Employment Protections Ordinance prohibits employment discrimination based on COVID-19 status.

Employers may not fire, threaten to fire, suspend, discipline, or in any other manner take adverse action against an employee who is absent or unable to work, or who requests time off from work, because the employee tested positive for COVID-19 or is isolating or quarantining due to COVID-19 symptoms or exposure.

Further, employers may not rescind an offer to employ or contract with an applicant or decide not to employ or contract with an applicant, who has tested positive for COVID-19 or is isolating or quarantining due to COVID-19 symptoms or exposure.

The ordinance is in effect until March 6, 2023.

The ordinance and poster can be found here.

What do employers need to do?
Employers with worksite locations inside San Francisco must display this notice at every job site within the city. Employers should make attempts to distribute the poster using any reasonable means, including emails, or other electronic means like posting to their internal web-based or app-based platforms. Employers should provide the notice in any language spoken by at least 5% of the employees who are at the workplace or job site.