The Sacramento County Board of Supervisors has passed the Sacramento County Worker Protection, Health and Safety Act of 2020, which is effective October 1, 2020.

The ordinance, which applies only to businesses located in the unincorporated areas of Sacramento County, requires employers to implement specified social distancing, mitigation, and cleaning protocols and practices in the workplace. The required protocols include: maintaining and implementing specified cleaning and disinfection protocols; establishing protocols for action if a worksite is exposed to a person with a probable or confirmed case of COVID-19; providing employees with regular access to handwashing, hand sanitizer, and disinfectant supplies; providing face-coverings for employees; and establishing physical distancing protocols for the workplace, including the use of face coverings.

The ordinance also creates a supplemental paid sick leave requirement. The sick leave requirement applies only to those employers located within the unincorporated areas of the County that have 500 or more employees nationally. The ordinance requires that employers provide full-time employees working in the unincorporated areas of the County with 80 hours of paid sick leave; part-time employees receive paid time off equal to their average number of hours worked over a two-week period. Employees may use sick leave for the following reasons:

  • The employee is subject to quarantine or isolation under a federal, state, or local order, or is caring for a family member who is quarantined or isolated, due to COVID-19;
  • The employee is advised by a health care provider to self-quarantine due to COVID-19 or is caring for a family member who is so advised;
  • The employee chooses to take off work because the employee is over the age of 65 or is vulnerable due to a compromised immune system;
  • The employee is off work because the employer’s work location temporarily ceased operations due to a public health order or other public health official’s recommendation;
  • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; or,
  • The employee is caring for a minor child because the child’s school or daycare is closed due to COVID-19.

The ordinance contains other requirements, which employers should ensure they are following.

The ordinance will remain in effect until December 31, 2020.

Jackson Lewis continues to track federal, state, and local ordinances pertaining to COVID-19. If you have questions about this or other ordinances pertaining to your employees, contact a Jackson Lewis attorney to discuss.

The City of San Diego enacted emergency ordinances requiring fair employment practices in response to job and economic insecurity due to the COVID-19 pandemic and stay-at-home directives.  The City of San Diego COVID-19 Building Service and Hotel Worker Recall Ordinance (“Recall Ordinance”) and the City of San Diego COVID-19 Worker Retention Ordinance (“Retention Ordinance”) went into effect immediately upon their passage on September 8, 2020. The Ordinances apply to three categories of businesses and employers that the City found have been especially impacted by the COVID-19 pandemic:

  1. Commercial Property Employer: defined by ordinance as an owner-operator, manager, or lessee, including contractor, subcontractor, or sublessee, of a non-residential property located within the geographical boundaries of the City of San Diego that employers 25 or more janitorial, maintenance, or security service employees. Only the janitorial, maintenance, and security service employees who perform work for a Commercial Property business or employer are covered by the Ordinance.
  2. Event Center Employer: defined by ordinance as an owner, operator, or manager or a privately-owned structure of more than 50,000 square feet or 5,000 seats that is used for the purpose of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the “event center’s” purpose, including food preparation facilities, ushering services, ticket taking services, concessions, retail stores, restaurants, bars, and structured parking facilities, but excludes governmental entities.
  3. Hotel Employer: defined by ordinance as an owner, operator, or manager of a residential building located within the geographical boundaries of the City of San Diego with at least 200 guest rooms that provide temporary lodging in the form of overnight accommodations to transient patrons, and may provide additional services, such as conferences and meeting rooms, restaurants, bars, or recreation facilities available to guests or the general public. A “hotel employer” also includes the owner, operator, manager, or lessee of any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services to the building.

The Recall Ordinance requires a covered employer to offer positions that become available on or after September 8, 2020, to qualified employees who were laid off on or after March 4, 2020. A laid-off employee is deemed qualified and must be offered a position – in the order of priority below – if the employee:

  1. Held the same or similar position at the same location when the employee was laid off; or
  2. Is or can be qualified for the position with the same training that would be provided to a new worker hired into the position.

If more than one laid-off employee is entitled to preference for a position, the employer must offer the position to the laid-off employee with the greatest length of service in the position and then to the laid-off employee with the greatest length of service with the employer at the employment site.

Under the Retention Ordinance, when a covered business experiences a Change in Control as defined by the Ordinance, covered employees are given preference in hiring by the successor business employer for a period of 6 months and must be retained for no less than 90 days, provided the successor employer continues operating for 90 days unless there is cause for termination (which the Ordinance does not define). Once the 90 days have elapsed, the successor employer must perform a written performance evaluation for each eligible employee retained pursuant to the Retention Ordinance.

The Ordinances will remain in effect for six months. However, they could be repealed by January 1, 2021, depending on whether Gov. Gavin Newsom signs pending Assembly Bill 3216 into law, which would provide similar worker protections statewide.

Jackson Lewis’ Coronavirus Task Force will continue to monitor these ordinances and other emergency regulations pertaining to COVID-19. If you have questions or need assistance, please contact the authors or your favorite Jackson Lewis attorney.

California employers with as few as five employees must provide family and medical leave rights to their employees under a new law signed by Governor Gavin Newsom on September 17, 2020. The new law significantly expands the state’s existing family and medical leave entitlements and goes into effect on January 1, 2021.

Senate Bill 1383 (SB 1383) also expands the covered reasons for protected leave and the family members whom employees may take leave to care for under the law.

Read the full article on Jackson Lewis Publications Page.

Governor Newsom signed Senate Bill 1159 (“SB 1159”) on September 17, 2020, which could expand the definition of injury under the workers’ compensation system to include illness or death resulting from COVID-19. In May, the governor had issued an executive order which created a presumption that any COVID-19-related illness of an employee shall be presumed to arise out of and in the course of employment to award workers’ compensation benefits if certain conditions were met. However, this Executive order expired in July.

Similar to the prior Executive Order, SB 1159 creates a disputable presumption that COVID-19 injuries arose out of and in the course of employment and are compensable. The bill also makes a claim relating to a COVID-19 illness presumptively compensable, as described above, after 30 days or 45 days, rather than 90 days.

The bill also allows for the presumption of injury for employees whose coworkers test positive for COVID-19. This presumption will remain in effect until January 1, 2023.

As this bill includes an urgency clause, it goes into effect immediately.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 17, 2020, Governor Newsom signed Assembly Bill (“AB”) 685, which requires employers to provide written notifications to employees within one business day of receiving notice of potential exposure to coronavirus (“COVID-19”).  AB 685 also authorizes the Division of Occupational Safety and Health (“Cal OSHA”) to prohibit operations, processes, and prevent entry into workplaces that it has determined present a risk of infection to COVID-19 so severe as to constitute an imminent hazard. AB 685 also authorizes Cal OSHA to issue citations for serious violations related to COVID-19 without requiring the agency to comply with precitation requirements.

Notification Requirements

Current California law requires employers to report certain occupational injuries and illnesses to Cal OSHA within a prescribed period. AB 685 confirms employers must report COVID-19 cases to the agency that satisfy Cal OSHA’s definition of a serious injury or illness. To satisfy this requirement, employers must have a process for employees to report potential exposures to COVID-19, having tested positive for COVID-19, or having symptoms of COVID-19. Employers must also assess any employee COVID-19 case to determine whether reporting on the case is required under Cal OSHA regulations.

Along with notifying Cal OSHA of a COVID-19 case that meets the definition of a serious occupational injury or illness, AB 685 requires employers having notice of a potential COVID-19 exposure (e.g., individual testing positive for COVID-19 was in the workplace) provide a written notice to:

  • employees and subcontractor employees who were at the worksite when a potentially infected individual was there and may have been exposed to COVID-19 as a result; and,
  • employees’ exclusive representative, if applicable.

This notice must be provided within one business day of the employer being notified of a potential exposure and may be done in “a manner that the employer normally uses to communicate employment-related information,” such as personal service, mail, or text message. The notice should be drafted to protect employee privacy and without disclosure of personally identifiable information or personal health information. The notice should also include information on COVID-19 benefits the employee may be entitled to and the disinfection and safety plan the employer has implemented or plans to implement in accordance with guidance from the Centers for Disease Control and Prevention (“CDC”).

An employer may also need to notify its local public health department of COVID-19 cases if the number of cases the employer knows about meets the definition of a COVID-19 outbreak as currently defined by the California State Department of Public Health. Upon an outbreak, the employer must notify its local public health department within 48 hours and be prepared to provide information on the number of COVID-19 cases at the worksite, their names, occupation, and other pertinent information. Employers will then need to keep working with the local health department and provide updates on new laboratory-confirmed COVID-19 cases.

Notifications required under AB 685 do not alter or change the work-relatedness determination for COVID-19 cases under Cal OSHA regulations. AB 685 further requires that employers maintain records of written notifications for at least three years.

Enforcement Procedures

AB 685 authorizes Cal OSHA to act when, “in its opinion,” employees are exposed to COVID-19 in such a manner as to constitute an imminent hazard by:

  • Prohibiting entry or access to a worksite;
  • Prohibiting performance of an operation or process at the worksite; or
  • Requiring posting of an imminent hazard notice at the worksite.

In treating an employer’s worksite as having an imminent hazard to COVID-19, Cal OSHA must limit its restrictions on the employer’s worksite to the immediate area where the hazard was identified. In addition, Cal OSHA’s restrictions must not “materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.” These provisions will sunset on January 1, 2023.

Cal OSHA regulations require a strict process for “serious violations,” in which Cal OSHA creates a rebuttable presumption of a serious violation following an inspection, which is then shared with the employer and the employer is given a chance to rebut. The employer’s rebuttal may then be used in defense of the violation in an appeal or hearing on the matter. Generally, this procedure is satisfied by Cal OSHA sending a standardized form containing descriptions of the alleged serious violation and soliciting information in rebuttal of the presumption to the employer at least 15 days before issuing the citation. For COVID-19 hazards and violations only, AB 685 streamlines this process by allowing Cal OSHA to issue a citation alleging a serious violation without requiring the agency to solicit information rebutting the presumption of a serious violation.  Accordingly, Cal OSHA would not need to notify an employer 15 days before issuing a serious violation related to COVID-19. This exemption will be repealed on January 1, 2023.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 11, 2020, Governor Newsom signed Assembly Bill 276 (“AB 276”), amending California’s tax law regarding the taxation of loans from qualified employer benefit plans to employees. The amendments track the provisions of the federal CARES Act on this issue, bringing much-needed uniformity between California and federal law governing this issue.

California and federal law have long allowed qualified employer benefit plans to provide non-taxable loans to plan participants and beneficiaries under specified circumstances. AB 276 amends California’s conditions for treating such loans as non-taxable to match the conditions of federal law, which were recently changed by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).

Pre-existing California law limited the amount and duration of loans that would be considered non-taxable. The amount was limited to the lesser of: (1) the greater of $10,000 or 50% of the participant’s vested account balance; or (2) $50,000.  The duration was capped at five years.

The CARES Act revised federal law regarding the amount and duration of loans that could be treated as non-taxable for loans made during the 180-day period beginning on March 27, 2020. The act raised the maximum amount to the lesser of: (1) the greater of $10,000 or 100% of a participant’s vested account balance; or (2) $100,000. The act also provides the repayment period for such loans for up to one year.

These changes substantially increase both the amount and duration of loans that may be considered non-taxable. However, the increased limits apply only to loans taken during the 180-day period after March 27, 2020. That period ends Wednesday, September 23, 2020.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 9, 2020, the Governor signed Assembly Bill 1867 (“AB 1867”) which mandated both food sector employers and other industries, including employers with 500 or more employees, to provide supplemental paid sick leave (“COVID-19 Supplemental PSL”). The California Labor Commissioner, charged with enforcement of the new laws, has issued a Frequently Asked Questions Page (“FAQ”) regarding both new supplemental leaves.

What are some of the key clarifications?

  1. The Labor Commissioner clarifies that the food sector worker sick leave that was previously required per the Governor’s Executive Order (“E.O.”) issued on April 16, 2020, is now codified by AB 1867 under Labor Code Section 248. Non-food sector employers were provided a “10-day grace period” from the enactment of the law. The FAQs make clear that non-food sector employers must begin providing COVID-19 Supplemental PSL starting September 19, 2020.
  2. The Labor Commissioner also clarifies that being “subject to a Federal, State or local quarantine or isolation order” does not include the state’s stay-at-home order but is referring to an order that is specific to the worker’s circumstance. For example, an order that directs an individual who lives with someone who has COVID-19 to quarantine themselves would satisfy the eligibility requirement for taking COVID-19 Supplemental PSL.
  3. The Labor Commissioner also stated that a hiring entity cannot deny a worker COVID-19 Supplemental PSL based solely on a lack of certification from a healthcare provider. However, a hiring entity may reasonably ask for documentation before paying the sick leave if it has other information indicating the worker is not requesting COVID-19 Supplemental PSL for valid purposes.
  4. The FAQs detailed that food sector workers, including both employees and independent contractors, have a right to COVID-19 Supplemental PSL under the prior E.O. and now under the new Labor Code 248. However, COVID-19 Supplemental PSL for non-food sector workers does not apply to independent contractors.
  5. The Labor Commissioner also explained that public employers are not required to provide COVID-19 Supplemental PSL.
  6. The FAQs highlighted that firefighters who were scheduled to work more than 80 hours in the previous two weeks, can take as many hours as they were scheduled, but they are limited to the maximum of $511/day or $5,110/total pay.
  7. The Labor Commissioner also provides a more detailed explanation of the calculation of leave entitlement for part-time workers who do not have a set schedule. The Labor Commissioner provides the calculations for both a part-time worker with a variable schedule who have worked for the employer for more than 14 days and less than 14 days, which was not clear in the legislation. The Labor Commissioner confirmed that a worker that is considered full-time (40 hours/week) is entitled to 80 hours of COVID-19 Supplemental PSL.
  8. The Labor Commissioner also clarifies that for a food-sector employer to receive credit for providing COVID-19 related paid sick leave, the employer must:
  • have had an existing supplemental paid benefits program as of April 16, 2020;
  • have paid a worker at a rate equal to or greater than what the worker is entitled to under California law.

Such a supplemental paid leave program includes those that provided supplemental paid sick leave under the E.O or a policy that provided the same or better supplemental sick leave benefits.  Policies that do not meet the requirements of the E.O.—including those that partially, but do not fully, replace a worker’s pay (up to $511 per day); which provide fewer hours of leave than the E.O; or that do not provide a paid benefit for COVID-19-related reasons—do not meet the criteria to receive a credit. Employers may always provide greater benefits to their workers.

For non-food sector employers seeking a potential credit for prior supplemental sick leave policies, the employer must have had an existing supplemental sick leave program enacted after March 4, 2020, and before September 19, 2020.

Additionally, an employer that provided COVID-19 related paid sick leave pursuant to a local paid sick leave ordinance may count that time towards its obligation under COVID-19 Supplemental PSL. If the local law provides a different rate than what is required under COVID-19 Supplemental PSL, the employer must provide the higher rate to comply with both laws. The non-food sector employers can retroactively provide supplemental pay for certain sick leave paid to employees if below the current requirement. While the food sector employers do not have such a right since they were subject to the E.O.

  1. The Labor Commissioner also states employers are required to display the applicable poster(s), in a conspicuous place that contains information about COVID-19 Supplemental PSL. The Labor Commissioner has also released model notices for the Supplemental Paid Sick Leave for Food Sector Workers and Supplemental Paid Sick Leave for Non-Food Sector Employees. The FAQ notes that if covered workers do not frequent a workplace, the employer may satisfy the notice requirement by providing notice through electronic means.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 11, 2020, Governor Newsom signed Assembly Bill 2143 (“AB 2143”), which adds further nuances to last year’s AB 749 regarding no-rehire clauses in settlement agreements.  AB 749 was part of the #MeToo inspired legislation, which prohibited no-rehire clauses in settlement agreements regarding employment disputes.  Prior to AB 749, it was common for employers to include no-rehire provisions in a settlement agreement.  When drafting AB 749, Assemblyman Mark Stone, argued that the “no-rehire clause punished the victims of discrimination or sexual harassment from continuing employment while the offender remains in the job.”  From AB 749, Code of Civil Procedure section 1002.5 was created, which states:

An agreement to settle an employment dispute shall not contain a provision prohibiting, preventing, or otherwise restricting a settling party that is an aggrieved person from obtaining future employment with the employer against which the aggrieved person has filed a claim, or any parent company, subsidiary, division, affiliate, or contractor of the employer. A provision in an agreement entered into on or after January 1, 2020, that violates this section is void as a matter of law and against public policy.

Good Faith

Now, AB 2143 adds a “good faith” component to the definition of “aggrieved person.” Before AB 2143, an “aggrieved person” was a person who “has filed a claim against the . . . employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process.”  AB 2143 amends Code of Civil Procedure section 1002.5(c)(2) to require the claim to have been filed in “good faith.”  The section, however, does not further define what exactly entails a claim to have been made in “good faith.”

Documentation of Sexual Assault or Harassment

 Prior to AB 2143, a no-rehire provision could be included if the employer made a good faith determination that the “aggrieved person” engaged in sexual harassment or sexual assault.  AB 2143 revises Code of Civil Procedure section 1002.5 (b)(1)(B) to require the employer’s good faith determination to be “documented.”

Ramifications for Employers

The “good faith” inclusion in the definition of “aggrieved person” provides a little bit – but not much – of leeway to employers in incorporating no-rehire provisions.  If this came to litigation, the burden of proof would be on the Plaintiff (i.e. the employee) to show that their claim against the employer was made in good faith.  Nonetheless, this further stresses the importance of documentation and proper investigation of an employee’s complaints in order to determine whether an employee’s complaint is made in “good faith” or not.  Further, Code of Civil Procedure section 1002.5 (b)(1)(B) stresses the importance for employers to document, and investigate, incidents in the workplace – especially when they involve sexual harassment or assault.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”) which has three new laws combined into one bill. The bill covers supplemental sick leave requirements, a pilot mediation program for small employers, and mandated hand washing requirements for food workers.

Food Sector Workers Supplemental Sick Leave

When Governor Newsom issued Executive Order (“EO”) N-51-20 mandating supplemental paid sick leave for food sector workers, it was uncertain whether the governor had the authority to issue such an EO. AB 1867 resolved those concerns by adopting many parts of the governor’s EO and making the law retroactive to April 16, 2020, when the EO was issued. AB 1867 also clarifies the definition of a “food facility” to include all sections of Health and Safety Code Section 113789. Previously, the Food Sector Worker EO only listed subsections (a) and (b) of the code, leaving out subsection (c) which stated what did not qualify as a “food facility.” AB 1867 includes subsection (c) providing clarity to whether an employer is covered.

               Who is a “Food Sector Worker”?

AB 1867’s definition of food sector worker is similar to that of the Food Worker Sick leave EO. A major change to the definition of eligible food sector worker is that a  worker no longer must qualify as an essential critical infrastructure worker.

Another change in AB 1867 from the Food Sector Worker EO was that the EO set to expire at the time of expiration of any statewide stay-at-home orders issued by the State Public Health Officer. However, AB 1867 expires in line with the federal Families First Coronavirus Response Act (“FFCRA”) on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later.

Importantly, AB 1867 also made clear that employers who had provided supplemental sick leave since the pandemic may take a credit for their previously provided supplemental sick leave if it is equivalent or exceeds AB 1867’s requirements.

               What Time Off Is Provided?

Like the Food Worker Sick leave EO, AB 1867 requires covered employers to provide full-time employees eighty (80) hours of paid time off and part-time employees a proportionate time off for the following reasons:

  • The food sector worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  • The food sector worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
  • The food sector worker is prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Unlike the Families First Coronavirus Response Act (“FFCRA”) and other supplemental paid sick leave ordinances in California,  AB 1867 does not provide leave for those caring for a family member who is quarantined or sick or caring for a minor child whose school or childcare has closed due to COVID-19.

COVID-19 Supplemental Paid Sick Leave Law

Additionally, AB 1837 establishes COVID-19 supplemental paid sick leave for workers outside of the food sector, including certain employees employed by private businesses with 500 or more employees in the United States.

The new law also covers employees who were excluded from coverage under the FFCRA as a health care provider or emergency responder. Food sector workers are excluded if they already qualify for the food sector worker benefit discussed above. There are also unique rules regarding fire departments and forestry in the new law.

Generally, eligible employees can take this new COVID-19 supplemental paid sick leave for similar reasons as discussed above for food sector workers and at similar rates.

The law requires the Labor Commissioner to make publicly available a model notice for purposes of complying with the posting requirements. The law permits notice to be provided to employees by electronic means in lieu of posting, only if a hiring entity’s covered workers do not frequent a workplace.

The new COVID-19 supplemental paid sick leave may expire on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later.

Handwashing

The new law requires a food sector worker working in any food facility to be permitted to wash their hands every 30 minutes and additionally as needed. This codified a similar requirement set forth in the Food Sector Worker EO.

Small Employer Family Leave Mediation

Assembly Bill 1867 also requires the Department of Fair Employment and Housing (“DFEH”) to create a small employer family leave mediation pilot program for employers with 5 to 19 employees. The pilot program would authorize a small employer or the employee to request to participate in mediation through the DFEH’s dispute resolution division after notice. The bill prohibits an employee from pursuing civil action until the mediation is complete if an employer or employee requests mediation. The bill also tolls the statute of limitations for the employee, including for additional related claims, from when a request to participate in the program is received until the mediation is complete or ended. These provisions of the bill would be repealed on January 1, 2024.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 9, 2020, Governor Newsom signed Assembly Bill (“AB”) 736, which expands the professional exemption under Industrial Welfare Commission (“IWC”) Wage Orders Nos. 4-2001 and 5-2001 to include part-time, or “adjunct,” faculty at private, non-profit colleges and universities in California.

AB 736 amends the Labor Code to add Section 515.7, which states that an employee providing instruction for a course or laboratory at a private, non-profit college or university may be classified as exempt under the professional exemption if the employee meets both a duties and salary test. The duties test is unchanged from the existing professional exemption in the IWC Wage Orders, but the salary test has changed. Under AB 736, an employee can meet the salary test if the employee is paid either a monthly salary of two times the state minimum wage for full-time employment or is paid by the course or laboratory taught, provided that the employee’s compensation meets specific requirements contained in the statute.

AB 736 goes into effect immediately.

Jackson Lewis will continue tracking state legislation that is relevant to employers.  If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.