On May 13th, the Center for Disease Control (CDC) updated its guidance for fully vaccinated individuals.  The new guidance identified circumstances in which fully vaccinated individuals do not have to wear face coverings, including indoors. However, fully vaccinated individuals must still comply with federal, state, local, or workplace guidance for face coverings. Earlier in the month, the CDC also issued guidance easing outdoor mask requirements in non-crowded gatherings or when gathering with other vaccinated individuals.

In response to the most recent update to CDC guidance, Governor Newsom stated in a press briefing that subject to certain conditions being met, California expects to eliminate its outdoor mask mandates on June 15th.  The Governor also indicated there may be modification of indoor mask mandates at that time, but certain mask guidelines and mandates are expected to continue beyond June 15th for indoor activities.

At the time the CDC relaxed its outdoor mask requirements, the California Department of Public Health (CDPH) cautioned that employers must still comply with Cal OSHA COVID-19 Emergency Temporary Standards. Those standards include ensuring that workers are provided and properly wear face coverings. The guidance from the CDPH also specifies individuals who are working alone in a closed office or room do not have to wear a face covering. Workers who wear respiratory protection also are exempted from face-covering requirements.  Further, individuals with a medical condition who are employed in a job involving regular contact with others must wear a non-restrictive alternative, such as a face shield with a drape on the bottom, as long as their condition permits it.

In light of Governor Newsom’s comments, the CDPH’s guidance, and the Cal OSHA Emergency Temporary Standards, employers with employees in California must continue to follow all state and any applicable local mask mandates, until such time as those mandates are modified.

Jackson Lewis continues to track guidance and regulations pertaining to COVID-19 and the workplace. If you have questions about COVID-19 compliance in the workplace or related issues, contact a Jackson Lewis attorney to discuss.

On May 20th, the Cal/OSHA Standards Board will consider changes to COVID-19 Emergency Temporary Standards (“ETS”).

The proposed changes would still require employers to have an established written COVID-19 Prevention Program (“CPP”) that covers everything from training and communication with employees to the investigation of COVID-19 cases in the workplace.

However, there are notable proposed changes in the requirements for the CPP, definitions, and COVID-19 case management procedures, which will have significant impacts on California employers.

Close Contact Instead of COVID-19 Exposure

This proposed change replaces the defined term “COVID-19 exposure” with the more commonly used term, “close contact.”  Although the definition remains the same (i.e., 6 feet, 15 minutes, 24 hour period), it now includes an exception for employees who wore a respirator under a Respiratory Protection Program, whenever they were within six feet of a COVID-19 case during the high-risk exposure period or period that someone could have been infectious.

Exposed Group Instead of Exposed Workplace

This proposed change eliminates some confusing defined terms like “exposed workplace” and adds a new term, “exposed group.” In shifting the language, the new definition would codify the guidance already contained in Cal/OSHA’s existing FAQs as to who and where would be included in or exempted from an “exposed group.” The exemptions include:

  • Areas in which a person momentarily passes through while everyone is wearing face coverings without congregating;
  • Distinct groups of employees, such as different work shifts that do not overlap; and,
  • If a COVID-19 positive person had visited a work location for less than 15 minutes and all persons wore face coverings, those individuals present would not be part of an exposed group.

In addition to aligning the definitions with Cal/OSHA’s guidance, the definitions also appear more consistent with current guidance from the Centers for Disease Control and Prevention (“CDC”) and the California Department of Public Health.

Notice Requirement

The proposed change still requires employers to notify employees of potential exposure or “close contact” within one business day. However, the notification obligation is now tied to when the employer knew or should have known of a COVID-19 case. The proposed changes to the notice requirement are significant in that the obligation can now be triggered if an employer should have known of a COVID-19 case, even if they actually did not. The proposed changes would also impose an obligation on employers to provide this notification in a written format. The written notice may be given by personal service, email, or text if it can reasonably be anticipated to be received by the employee within one business day and include information required by Labor Code section 6409.6. Cal/OSHA’s proposed changes are, as a result, shoring up the notice requirement to align with the written notification required by Assembly Bill 685.

Physical Distancing

If adopted, the revision states the physical distancing subsection would only apply before July 31, 2021. Moreover, the revision states the following employees would be exempt from the physical distancing requirements:

  • Employees wearing respirators under a Respiratory Protection Program
  • Subject to certain requirements, locations at which all employees are fully vaccinated, except for employees who require a reasonable accommodation or exception to vaccination

The proposed revisions also reduce the burden on employers with respect to 6 feet separation of employees by modifying the burden for employers to show that physical distancing cannot be achieved or sustained. Through the proposed changes employers would no longer have to demonstrate that six feet separation “is not possible” and have the less stringent requirement of showing that “six feet separation is not feasible.”

Face Coverings

To reflect recent changes from the California Department of Public Health guidance, the proposed changes add the following new exceptions to the face-covering requirement:

  • When all persons in a room are fully vaccinated and do not have COVID-19 symptoms;
  • Employees wearing respirators under a Respiratory Protection Program;
  • Employees who are fully vaccinated when they are outdoors so long as they are free of COVID-19 symptoms.

Exclusion from Worksite

The proposed revisions now match the recent update to the ETS FAQ, indicating that fully vaccinated employees that do not have COVID-19 symptoms do not have to be excluded from the workplace. Individuals who have been positive for COVID-19 and have recovered and return to work, also do not have to be excluded for 90 days after the initial onset of COVID-19 symptoms or for individuals who never developed symptoms, 90 days from the first positive test.

The proposed revisions further clarify that exclusion pay is not required where the employee received disability payments or was covered by workers’ compensation and received temporary disability. This change would also align the standard with Cal/OSHA’s current guidance.

If the revisions to the ETS are approved, it will ease employers’ burden as they reopen in some respects, but even if passed as revised, employers will need to continue to follow other state and local guidance regarding COVID-19 safety in the coming months. Employers should further be aware of the possibility of there being inconsistencies in Cal/OSHA’s ETS and guidance from the state and local health department, which could result in worker confusion or challenging workplace dynamics.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA ETS or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

An effective settlement agreement memorializes the resolution of a dispute between a claimant-employee and a business, provides the parties with a clear path forward, and creates peace of mind. A poorly-drafted settlement agreement, on the other hand, can create further conflict and problems.

This is what litigators would like employers to understand about effective settlement agreements.

What Can Be Included

  1. Waiver of Unknown Claims. A settlement agreement always includes monetary and/or non-monetary consideration provided to the claimant to settle known claims against the business. Under California Civil Code section 1542, a claimant may also agree to waive the right to bring claims for potential violations of claims in existence at the time of the settlement that the claimant is not aware of when settling.
  2. Resignation. A settlement agreement may include non-monetary consideration including requiring a current employee to resign from a job.
  3. Confidentiality. The parties may also agree not to disclose the amount of the payment that the claimant receives in the settlement. Confidentiality may also be required as to the underlying claims, but with sexual harassment claims pursuant to California Code of Civil Procedure section 1001, confidentiality cannot extend to the factual basis for the claim.

What Cannot Be Included

  1. Waiver of Certain Claims. There are certain claims that cannot be released in a settlement agreement under the California Labor Code. For example, an employee cannot release claims to certain wages and benefits including:
    • Earned wages
    • Business expense reimbursement
    • Unemployment insurance
    • COBRA
    • Workers’ compensation insurance
  1. Prohibition against participating in administrative claims. Moreover, a settlement agreement cannot include a prohibition against the claimant testifying and/or filing an administrative claim against the employer.
  2. Prohibition against re-hire. Employers cannot include “no-rehire” clauses in settlement agreements. Under California Code of Civil Procedure section 1002.5, a settlement agreement cannot contain a provision prohibiting, preventing, or otherwise restricting a settling claimant who is an aggrieved person from obtaining future employment with the employer against which the claimant has filed a claim or any parent company, subsidiary, division, affiliate, or contractor of the employer. Such clauses will be deemed void if entered into after January 1, 2020.
  3. Waiver of future claims. Provisions that require claimants to waive violations based on events that (may or may not) happen in the future are unenforceable.

Given the special nuances with employment settlement agreements, employers should work together with counsel to ensure that the settlement agreement is enforceable.

If you need assistance in resolving an employment claim or have questions about settlement agreements, contact a Jackson Lewis attorney to discuss.

As the federal government and state of California adjusted their COVID-19 guidance for vaccinated individuals, Cal OSHA remained silent on how vaccination affected the requirements under its COVID-19 Emergency Temporary Standard (ETS). While there had been discussions of revisions to the ETS, it was unclear if Cal OSHA would be able to release such revisions prior to the targeted reopening of California by June 15, 2021.

Last week Cal OSHA updated its guidance on how the ETS mandatory exclusion requirements should be applied to fully vaccinated individuals. Under the guidance, employees who are not fully vaccinated must be excluded from the work site if:

  • The employee is positive for COVID-19, or
  • The employee had a COVID-19 exposure, whether symptomatic or asymptomatic.

As revised, the guidance now provides that a fully vaccinated employee who was exposed to COVID-19 does not have to be excluded from the workplace or quarantined, provided the employee is asymptomatic. If the fully vaccinated employee tests positive for COVID-19 or exhibits COVID-19 symptoms, the employee must be excluded from the worksite.  The agency made this change based on the State of California’s Department of Public Health’s May 3rd guidance, which relieves fully vaccinated individuals from having to quarantine if they do not develop symptoms.

That said, Cal OSHA’s guidance has not relaxed any other precautions under the ETS, like mandatory employee face coverings, social distancing, cleaning and disinfection measures, and testing requirements. Cal OSHA, in fact, expects these preventive measures to remain in place for both unvaccinated and fully vaccinated individuals in the workplace.

Employers should review Cal OSHA’s revised guidance on the ETS as well as watch for frequent updates from Cal OSHA on workplace safety expectations. Cal OSHA is expected to revise the ETS in the coming weeks and release more guidance as employers start working towards the state’s reopening date on June 15, 2021.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal OSHA ETS or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Recently, the Biden administration announced plans for a federal paid family leave program – something that has been available to California employees for over a decade.

California’s Paid Family Leave (“PFL”) program, which is administered by the California Employment Development Department (“EDD”), provides eligible employees with up to 8 weeks of wage replacement benefits when an employee is off work for certain qualifying reasons.

PFL Benefits

The PFL program provides wage replacement benefits to eligible workers who take time off work to:

  • Care for a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner.
  • Bond with a new child entering the family by birth, adoption, or foster care placement.
  • Participate in a qualifying event related to a family member’s (spouse, registered domestic partner, parent, or child) military deployment to a foreign country.

The PFL program was expanded this year to allow employees to collect benefits when off work due to a “qualifying exigency” related to a family member’s military service.

The PFL program is funded by deductions from workers’ paychecks and benefits are paid by the State, not by employers.  Despite its name, PFL is not a leave law and does not grant employees the right to take leave or offer job protection; it only provides benefits when employees are off work for qualifying reasons.

Employer Requirements

Even though it is a state-administered program, California employers still have obligations to assist with the program.

Employers are required to inform employees of the PFL program by posting in the workplace the Notice to Employees: Unemployment Insurance/Disability/Paid Family Leave (DE 1857A).  Employers must also provide the Paid Family Leave Benefits (DE2511) brochure to new hires and to employees who advise the employer they need time off to care for a seriously ill family member or bond with a child.

Employers must also make payroll withholdings and send contributions to the EDD; employers can find withholding schedules and additional information on the EDD’s website.

To receive PFL benefits, employees must make a claim with the EDD.  When an employee files a claim for PFL, employers will receive a Notice of Paid Family Leave Claim Filed (DE2503F) from the EDD.  Employers must complete and return the form to the EDD within two working days to verify the information the employee provided on their claim.

Employers with employees working in San Francisco may be required to supplement the wages of employees who are receiving PFL benefits when off work to bond with a child.

If you have questions about employer requirements under the Paid Family Leave program or any related issues, please contact a Jackson Lewis attorney to discuss.

The California Privacy Protection Act (CPRA) amended the California Consumer Privacy Act (CCPA) and has an operative date of January 1, 2023. The CPRA introduces new compliance obligations including a requirement that businesses conduct risk assessments. While many U.S. companies currently conduct risk assessments for compliance with state “reasonable safeguards” statutes (e.g., FloridaTexasIllinoisMassachusettsNew York) or the HIPAA Security Rule, the CPRA risk assessment has a different focus. This risk assessment requirement is similar to the EU General Data Protection’s (GDPR) data protection impact assessment (DPIA).

Read the full article at Jackson Lewis Workplace Privacy, Data Management & Security Report.

 

Despite the Governor’s recent announcement for a tentative reopening of the state by June, California’s legislature has been busy passing COVID-19-related laws. At the end of March, the Governor signed Senate Bill 95, which resurrected and expanded supplemental paid sick leave. And more recently, the Governor signed Senate Bill 93, which implemented a statewide right of reemployment for certain industries.

Over the last four months, numerous localities (including the City of Los Angeles, Los Angeles County, Costa Mesa, Irvine, and others) across California have issued or considered “hazard” or “hero” pay ordinances that mandate premium pay for grocery and drug store employees and similar industries. While several lawsuits have been filed seeking to strike down these local ordinances, the state is considering two statutes that would support them.

First, Assembly Bill 889, would require the owner of a grocery store as soon as possible, but not later than 60 days or 180 days before a planned closure of a grocery establishment, to provide written notice of the intended closure to the city and county in which the grocery store is located, the local workforce development board, and the State Department of Social Services, along with other requirements for store closures. While at first blush this ordinance seemingly has little to do with the hero pay ordinances, as support for the bill, the proposed statute explicitly cites to planned grocery closures allegedly done in response to implemented hero pay ordinances.

In addition to the grocery industry, the state legislature is also considering Assembly Bill 650, which would mandate hazard pay retention bonuses for employees in the health care industry. The bonuses would be in addition to all other compensation paid to eligible health care workers. The bill would also make it a violation for a covered employer to discharge, lay off, or reduce a covered health care worker’s compensation or hours to prevent that worker from receiving hazard pay retention bonuses.

Jackson Lewis will continue to track local and state laws pertaining to employers and COVID-19. If you have questions about hazard pay or related issues, contact a Jackson Lewis attorney to discuss.

In 2020, a California district court granted a preliminary injunction to prevent enforcement of Assembly Bill 5 (“AB 5”) against motor carriers operating within California. AB 5 codified the judge-made “ABC test” for classifying workers as either employees or independent contractors. The district court concluded, “there is little question that the State of California has encroached on Congress’ territory by eliminating motor carriers’ choice to use independent contractor drivers, a choice at the very heart of interstate trucking.”

Shortly after the district court’s decision, the State of California and the International Brotherhood of Teamsters appealed to the 9th Circuit.   On April 28, 2021, the 9th Circuit issued its opinion, reversing the district court.  The 9th Circuit panel held that the application of AB 5 to motor carriers is not preempted by the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”). The panel found the district court abused its discretion by granting the preliminary injunction. The panel concluded that AB 5 is a generally applicable labor law that affects a motor carrier’s relationship with its workforce and does not bind, compel, or otherwise freeze into place the prices, routes, or services of motor carriers.

This decision comes on the tail of another 9th circuit decision that the Federal Motor Carrier Safety Administration (“FMCSA”) preempted California’s meal and rest break laws.

The 9th Circuit’s decision on AB 5 is likely to be appealed to the U.S. Supreme Court or a rehearing sought. The preliminary injunction preventing enforcement of AB 5 in the trucking industry will not be lifted immediately but enforcement could start as early as May. This means motor carriers must now determine how to proceed in California under AB 5, unless and until the U.S. Supreme Court grants review or a request for rehearing is granted.

Jackson Lewis continues to track developments pertaining to independent contractors and worker classification issues.  If you have questions about the application of AB 5 or related issues, please contact a Jackson Lewis attorney.

In November 2020, Cal OSHA passed the COVID-19 Emergency Temporary Standards (ETS). Currently, the Standards are set to expire on October 2, 2021.

As outlined in prior articles, the ETS require that employers:

  • Establish, implement, and maintain an effective written COVID-19 Prevention Program.
  • Implement COVID-19 preventative measures.
  • Report information to their local health department.
  • Retain records related to COVID-19 cases in the workplace in a confidential manner.
  • Exclude workers known to have COVID-19 or who have had exposure.
  • Identify and manage COVID-19 infections and outbreaks in the workplace.

Unfortunately, the ETS are already lagging behind federal and state guidance pertaining to COVID-19. In particular, the ETS do not take into consideration guidance from the CDC regarding fully vaccinated individuals.

At the Cal OSHA Standard Board meeting on April 15th, several public commenters admonished the Standard Board about the lack of guidance from Cal OSHA or in the ETS regarding vaccinated individuals. The Standard Board disclosed that revisions to the ETS, including revisions about vaccinated individuals are in progress. Though it would be difficult due to tight timelines, the Standard Board hoped to have revisions passed by June, when California is tentatively set to fully reopen.

Jackson Lewis will continue to track developments pertaining to Cal OSHA regulations and requirements. If you have questions about the ETS or related compliance issues contact a Jackson Lewis attorney to discuss.

The COVID-19 Supplemental Paid Sick Leave statute was signed into law a month ago and, despite a FAQ issued by the California Labor Commissioner, employers were faced with uncertainty as to whether their employee’s leave request qualified under the statute.  Fortunately, the Labor Commissioner has updated its FAQs to provide further clarity to employers.

Reasons for Leave

The first clarification pertains to leave for childcare purposes. The statute states that eligible employees may take supplemental paid sick leave if “caring for a child…whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.” This wording led to confusion for employers since individuals were claiming the language required supplemental sick leave pay if their school or childcare facility had been closed for a prolonged period of time and not due to a sudden COVID-19 closure due to an issue on the premises.

The Labor Commissioner has stated this language means a child’s school or place of care has been closed after concern that a person who had been present on the school or daycare premises on or after January 1, 2021, was exposed to, or had contracted, COVID-19.  This does not include caring for a child whose school or daycare was closed before January 1, 2021.  If the school or daycare was closed on or after January 1, 2021, it must have been due to a closure, or partial closure, making the care unavailable due to COVID-19 on the premises.

The next clarification is whether an employee is eligible for supplemental paid sick leave if someone the employee lives with is exposed, experiences symptoms, or is diagnosed with COVID-19. The Labor Commissioner states that an eligible employee may use supplemental paid sick leave if the employee is caring for a family member either because the family member has been recommended by a medical professional to stay home due to COVID-19 or the family member is subject to a COVID-19 related quarantine or isolation period.

Requests for Leave

The Labor Commissioner has clarified that an employer must provide supplemental paid sick leave to an eligible employee “immediately upon the oral or written request” of the eligible employee.

Relation to Other Laws

The Labor Commissioner specifies that the recently passed supplemental paid sick leave is different than both the federal Families First Coronavirus Response Act (FFCRA) and the 2020 California COVID-19 Supplemental Paid Sick Leave. The new law provides an additional bank of time for COVID-19 related reasons.

The Labor Commissioner also notes in the FAQs that federal law currently provides tax credits for employers with less than 500 employees who provide COVID-19 related paid sick leave voluntarily. The Labor Commissioner directs employers to the  Internal Revenue Service FAQs for more information on the federal tax credit.

Jackson Lewis continues to track developments related to COVID-19 and employers. If you have questions about supplemental paid sick leave or related issues, contact a Jackson Lewis attorney to discuss.