Since the drama in passing the amended COVID-19 Emergency Temporary Standards (ETS) in June, the Cal/OSHA Board has been relatively quiet, though discussing a more permanent COVID-19 Standard. In the meantime, federal OSHA took the spotlight with President Biden’s COVID-19 Action Plan.

Currently, the Cal/OSHA ETS is set to expire on January 14, 2022. But unlike the main character in Disney’s Frozen, it appears Cal/OSHA does not intend to let it go. Recently Cal/OSHA released a proposed second re-adoption of the ETS.

Under the proposal, much of the ETS would remain the same as the Standards passed in June. Here is a summary of the key updates proposed:

Exclusion from Worksite

Consistent with the current ETS, employers must still exclude employees who are positive for COVID-19 until return-to-work requirements are met. Employers also must exclude employees who have had close contact with a positive individual unless the employee is fully vaccinated and asymptomatic.

Currently, employees who have a close contact but are fully vaccinated and remain asymptomatic don’t need to be excluded from the workplace. Under the proposed amendments, these employees must now wear a face-covering in the workplace for 14 days, maintain social distance for 14 days, and get a COVID-19 test three to five days after the close contact in order to take advantage of the exception.

Return-to-Work Criteria

Under the proposed revisions, persons who had close contact, but never developed COVID-19 symptoms may return to work (1) 14 days after the last known contact, (2) 10 days after the last known contact if they wear a face covering and socially distance for 14 days after the close contact, or (3) 7 days after the last known close contact if the person tests negative for COVID-19 using a polymerase chain reaction (PCR) test with the specimen taken 5 days or later after the close contact and if the individual wears a face covering and socially distances from others for 14 days after the close contact.

Persons who had close contact and developed COVID-19 symptoms can only return to work when (1) at least 24 hours have passed since a fever of 100.4 degrees Fahrenheit or higher has resolved without using a fever-reducing medication, (2) COVID-19 symptoms have improved, and (3) at least 10 days have passed since the COVID-19 symptoms first appeared.

The proposed revisions would also remove the return-to-work exemptions for essential critical infrastructure during staffing shortages.

Outbreaks and Testing

Employers, under the proposed revisions, would need to test even vaccinated, asymptomatic employees in an outbreak setting. An outbreak under the ETS is defined as three or more employees testing positive for COVID-19 within an exposed group during a 14-day period.

Moreover, employers will be required to provide testing for all close contacts, including vaccinated employees.

Face Coverings

Though state and local guidance regarding face coverings has fluctuated since June 2021, the ETS guidance will remain mostly the same.

However, both vaccinated and unvaccinated employees must wear face-covering during screening.

The Standards Board has indicated that the face coverings requirements in the ETS are intended to be the minimum requirement, while state and local public health departments may make more stringent mandates.

If approved, the revisions to the ETS would go into effect on January 14, 2022, and remain in effect until April 14, 2022.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards 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.

The Fair Chance Act, commonly referred to as California’s “ban the box” law, imposes restrictions on employers with five or more employees from asking a job applicant any questions that seek the disclosure of their conviction history before making a conditional offer of employment. Last year, the Department of Fair Employment and Housing (DFEH) updated regulations governing background checks and published a Frequently Asked Questions page on the statute.

Recently, the DFEH announced new efforts to identify and correct violations of the statute by using technology to conduct mass searches of online job advertisements for potentially prohibited statements. The DFEH deems blanket statements in job advertisements indicating that the employer will not consider anyone with a criminal history to be violative of the statute. In its press release, the DFEH states in one day of review it found over 500 job advertisements with statements that violate the statute.

To assist employers with compliance with the Fair Chance Act, the DFEH has released a new Fair Chance Toolkit, that includes sample forms and guides.

If you have questions about compliance with the Fair Chance Act or related issues pertaining to applicant background checks, contact a Jackson Lewis attorney to discuss.

At the end of 2020, it seemed the legislature, the courts, and even California voters wanted to move away from the independent contractor test codified in Assembly Bill 5 (AB 5). However, during 2021, the pendulum seems to have swung back in favor of AB 5 and its guidelines on classifying workers as employees versus independent contractors.

In 2019, the Legislature passed AB 5 to add Section 2750.3 to the Labor Code, adopting and expanding the common law “ABC Test” to define “employee” not just for purposes of the Wage Orders, but also for purposes of the Labor Code and the Unemployment Insurance Code.

Under the AB 5-enhanced version of the ABC Test, a worker is presumed to be an employee, unless the hiring entity can establish that:

(A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

(B) The person performs work that is outside the usual course of the hiring entity’s business; and

(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

A worker cannot be classified as an independent contractor under the ABC Test unless all three factors are met, or unless one of the exemptions established by AB 5 is satisfied.

At the start of 2020, a U.S. District Court granted a preliminary injunction against the enforcement of AB 5 for truckers. Later that year, California’s Governor signed Assembly Bill 2257 (AB 2257), which recast, clarified, and expanded the exemptions to AB 5. Even California voters were in favor of an exemption for app-based rideshare and delivery companies and passed Proposition 22 in November 2020. It seemed that AB 5 was going out of vogue.

However, 2021 took a different turn. As the year started, the California Supreme Court issued its opinion in Vazquez v. Jan-Pro Franchising International, which held that Dynamex Operations West, Inc. v. Superior Court applied retroactively. Dynamex was the case that originally set forth the ABC Test. While this mainly affected litigation that had been filed before Dynamex, it set the tone for independent contractor issues for the rest of the year.

In April, the Federal 9th Circuit Court of Appeal reversed the district court’s preliminary injunction against AB 5 as to motor carriers. Currently, the California Trucking Association has a petition for writ of certiorari pending before the U.S. Supreme Court.

Similarly, Proposition 22, has been under attack in the courts, and recently a state court prohibited Proposition 22 from being applied. This decision also is under appeal before the California Court of Appeal.

In 2021, the California legislature also extended exemptions for some industries, who do not have to follow the ABC Test.  These exemptions include licensed manicurists and construction trucking subcontractors (AB 1561) and newspaper distributors and carriers (AB 1506).

If you have questions about AB 5 or need assistance with the classification of workers, contact a member of the Jackson Lewis Wage and Hour Practice Group or the attorney with whom you regularly work.

Governor Newsom signed Assembly Bill 237 (AB 237), which prohibits California public employers from discontinuing employer contributions for health care or other medical coverage for employees who, during the duration of an authorized strike, fall below the minimum hours worked to qualify for employee health care coverage.

The bill expressly provides that it is an unfair practice for covered public employers to:

  • Fail or refuse to maintain and pay for continued health care or other medical coverage for an enrolled employee or their enrolled dependents, for the duration of an authorized strike.
  • Fail to collect and remit the employee’s contributions to health care coverage.

This legislation goes into effect on January 1, 2022.

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.

With health-related data and how to protect it at the forefront of discussion since the start of the COVID-19 pandemic, this week California Governor Gavin Newsom signed into law two bills related to genetic data.  First, AB 825, will expand the definition of personal information to include genetic data, for data breach notification requirements for businesses and government agencies, as well as reasonable safeguard requirements for businesses. Second,  SB 41, will establish the Genetic Information Privacy Act, requiring a direct-to-consumer genetic testing company to provide a consumer with notice and consent regarding its genetic data collection, use and disclosure policies.

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

Governor Newsom signed Senate Bill 331 (SB 331), which further limits the use of non-disclosure agreements (NDAs) and settlement agreement terms when settling employment legal claims involving harassment, discrimination, or retaliation.

Before the passage of SB 331, California’s restriction was limited to sex-related claims.  Specifically, since 2019 when SB 820 went into effect, California law prohibited a settlement agreement from preventing the disclosure of factual information regarding a claim in a civil or administrative action alleging sexual assault, sexual harassment, or an act of workplace harassment or discrimination based on sex.

SB 331 expands this prohibition to include other acts of workplace harassment or discrimination that are not based on sex. The bill also requires that any non-disparagement or other contractual provision that restricts an employee’s ability to disclose information related to the conditions of the workplace must include specific language related to the employee’s right to disclose information about unlawful acts in the workplace.

Note this bill is not retroactive and applies to agreements entered into on or after January 1, 2022.

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.

California’s Governor passed Assembly Bill 286 (AB 286) which amends the Fair Food Delivery Act of 2020. AB 286 makes it unlawful for a food delivery platform to charge a customer any purchase price for food or beverage that exceeds the price posted by the food facility on the food delivery platform’s internet website at the time of the order. AB 286 also prohibits food delivery platforms from retaining any portion of amounts designated as a tip or gratuity.  Instead, the food delivery platform must pay the entire tip or gratuity to the person delivering the food or beverage, and any tip or gratuity for a pickup order directly to the food facility. Finally, AB 286 requires the platform to disclose to the customer and the food facility certain specified information related to fees, commissions, and costs charged to both parties.

AB 286 fits the National Restaurant Association’s Public Policy Principles for Third-Party Delivery, which is a set of guidelines enacted to ease tensions between restaurants and third-party delivery services.  One of the key guidelines is that “Restaurants deserve transparency on fees charged by third-party delivery companies.”

California is not the first to pass legislation to address transparency in delivery services.  New York City and Chicago have passed similar legislation, and the State of Nevada is not far behind. Several delivery companies have already adjusted national operations to get ahead of the legislation and eliminate existing tensions.

This bill takes effect on January 1, 2022.

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 October 5, 2021, Governor Newsom signed Assembly Bill 654 (AB 654), which expands the types of employers who are exempt from COVID-19 outbreak reporting requirements. Specifically, under AB 654, employers such as community clinics, adult day health centers, community care facilities, and child daycare facilities are exempt from COVID-19 outbreak reporting required under Assembly Bill 685 (AB 685) passed in 2020.

AB 654 also clarifies the time frame for employer notification of cases to public health agencies and narrows the definition of worksite for covered exposures. Additionally, AB 654 revises the requirement that employers provide information on COVID-19 employee-related benefits to only apply to employees who were on the premises at the same worksite as the qualifying individual within the infectious period. Similarly, the bill also revises the notification requirement regarding the cleaning and disinfection plan the employer is implementing to only apply to employees who were on the premises at the same worksite as the qualifying individual within the infectious period, and the employers of subcontracted employees who were on the premises at the same worksite as the qualifying individual within the infectious period.

This bill takes effect immediately as an urgency statute.

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

In early August, California’s Department of Public Health (CDPH) issued a mandate for health care workers to be vaccinated by September 30, 2021. Local government agencies within California, like the County of Los Angeles Department of Public Health, passed similar orders that expanded the CDPH mandate to, for example, non-medical in-home healthcare workers.

Then, on September 28, 2021, the CDPH expanded its mandate when it issued a new vaccine requirement, adding adult care facilities and direct care workers.

Under its new mandate, the CDPH now requires covered workers to be fully vaccinated by November 30, 2021.

Covered Workers

The following workers are covered by the order:

  • All workers who provide services or work in Adult and Senior Care Facilities licensed by the California Department of Social Services;
  • All in-home direct care services workers, including registered home care aides and certified home health aides except for those workers who only provide services to a recipient with whom they live or who are a family member of the recipient for whom they provide services;
  • All waiver personal care services (WPCS) providers, as defined by the California Department of Health Care Services, and in-home supportive services (IHSS) providers, as defined by the California Department of Social Services, except for those workers who only provide services to a recipient with whom they live or who are a family member of the recipient for whom they provide services;
  • All hospice workers who are providing services in the home or a licensed facility; and
  • All regional center employees, as well as service provider workers, who provide services to a consumer through the network of Regional Centers serving individuals with developmental and intellectual disabilities, except for those workers who only provide services to a recipient with whom they live or who are a family member of the recipient for whom they provide services.

Exemptions

The exceptions for those who work in-home, WPCS, and hospice, as detailed above, only apply if the workers provide services to a single household. If the workers provide services across multiple households, the exceptions do not apply, and the worker must comply with the order.

Workers may also be exempt from the vaccination requirements due to closely held religious beliefs or qualifying medical reasons. Workers who believe they are covered by either of these exemptions must provide their employer with a declination form signed by the worker.

Requirements for Unvaccinated Workers

If a worker is exempted from the vaccination requirements, either due to religious beliefs or qualifying medical reasons, the worker must comply with the following requirements:

  • Test for COVID-19 with either PCR or antigen test once weekly; and
  • Wear a surgical mask or higher-level respirator, such as an N95 filtering facepiece respirator, at all times while in the facility or home.

Recordkeeping

Employers of covered workers will be required to maintain records of workers’ vaccination or exemption status. Employers must also keep records regarding worker testing for those employees who are exempt from vaccination. These records must be kept confidential pursuant to applicable privacy laws and regulations.

If you have questions regarding compliance with the CDPH order, related vaccination orders, or other COVID-19 workplace requirements, please reach out to us, the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

Without any fanfare, Cal/OSHA updated its FAQs for the emergency temporary standards (ETS) on September 21, 2021, to incorporate new guidance from the California Department of Public Health (CDPH).

Importantly, the CDPH has relaxed its quarantine recommendations for unvaccinated, asymptomatic workers.  The ETS, which governs most workplaces in California, requires a 10-day quarantine period in most circumstances.  The recent guidance from the CDPH provides an even shorter quarantine option for asymptomatic unvaccinated employees.  Specifically,  asymptomatic unvaccinated employees may now end their quarantine either 10 days after exposure or 7 days after exposure if they test negative.  However, the diagnostic specimen has to be collected at least 5 days from the date of exposure to take advantage of this guidance.

In its FAQs, Cal/OSHA acknowledged that it is required by Executive Order N-84-20 to defer to CDPH’s quarantine lengths if they are shorter than the exclusion requirements in the ETS.  However, Cal/OSHA also noted, if an employer prevents an employee from complying with the shorter quarantine conditions recommended by the CDPH, then the longer quarantine requirements in the ETS will apply.  Additional highlights from the new CDPH guidance are below.

Isolation for Individuals who Test Positive

The CDPH recommends a symptom-based strategy for determining the duration of isolation for people with COVID-19 who are symptomatic. Under this strategy, persons with COVID-19 who have symptoms and were instructed to care for themselves at home may discontinue self-isolation under the following conditions:

  • At least 10 days have passed since symptom onset; AND
  • At least 24 hours have passed since the resolution of fever without the use of fever-reducing medications; AND
  • Other symptoms have improved.

For persons with COVID-19 who do not have any symptoms, the CDPH recommends they self-isolate at least 10 days from the date of the first positive COVID-19 diagnostic test.  If they develop symptoms during this time, the standard for symptomatic individuals above will apply instead.

Quarantine for Unvaccinated Persons

The CDPH recommends that unvaccinated persons who have had close contact with someone suspected or confirmed to have COVID-19 get tested and self-quarantine. Close contacts that remain asymptomatic may discontinue self-quarantine under the following conditions:

  • Quarantine can end after Day 10 from the date of last exposure without testing, OR
  • Quarantine can end after Day 7 if a diagnostic specimen is collected on day 5 or later from the date of exposure and the test is negative.

In addition to the conditions above, during the 14 days after exposure, the close contact should continue monitoring their symptoms, wear a mask when around others, wash their hands, avoid groups, and stay at least 6 feet from others. If the person develops symptoms within 14 days of exposure, they should self-isolate immediately and get tested.

Quarantine for Vaccinated Persons

Under the CDPH guidance, the exposed person does not have to quarantine if they are fully vaccinated before the exposure and have not developed symptoms. Similarly, if an exposed person tested positive for COVID-19 before their recent exposure and (1) it has been less than 3 months since they started having symptoms from their prior infection and (2) they have not had any new symptoms, they do not need to quarantine.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards 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.