As Monkeypox (MPX) continues to be an issue throughout California, Cal/OSHA issued guidance to assist in protecting employees. However, this guidance applies only to workplaces covered by the Aerosol Transmissible Diseases (ATD) standard, which is notable because the guidance itself states that “MPX spreads primarily by close or direct contact with infectious rashes, lesions, scabs, or body fluids.” However, the guidance also states that “the virus can become airborne during changing or handling of contaminated linen.

Workplaces covered by the Cal/OSHA ATD Standard include the following:

  • Hospitals
  • Skilled nursing facilities
  • Clinics, medical offices, and other outpatient medical facilities
  • Home health care
  • Long-term health care facilities and hospices
  • Medical outreach services
  • Paramedic and emergency medical services
  • Medical transport
  • Homeless shelters (includes migrant shelters)
  • Drug treatment programs
  • Laboratories that perform procedures with materials that contain or are reasonably anticipated to contain aerosol transmissible pathogens

The guidance sets forth distinct requirements for outpatient clinics, dental offices, hospitals, and other employers covered by the ATD standard. Since this guidance is very specific, we recommend reviewing the requirements directly from the Cal/OSHA guidance linked above.

The guidance also provides that all employers covered by the ATD standard must provide and ensure uses of respiratory protection defined as fit-tested, NIOSH-approved particulate respirator equipped with an N95 filter or higher, for employees who:

  • Enter a room occupied by an airborne infectious disease case or suspected case, including MPX;
  • Enter an airborne infection isolation room or area that is in use for airborne infection isolation;
  • Are present during procedures or services on an airborne infectious disease case or suspected case, including MPX;
  • Repair, replace, or maintain air systems or equipment that may contain or generate aerosolized pathogens;
  • Work in an area occupied by an airborne infectious disease case or suspected case, including MPX;
  • Are present during decontamination of an area where an infected patient or client was located;
  • Work in a residence where an airborne infectious disease case or suspected case, including MPX is known to be present;
  • Are present during the performance of aerosol-generating procedures on patients suspected or confirmed to have an airborne infectious disease such as MPX (powered air-purifying respirator or better);
  • Are present during the performance of aerosol-generating procedures on cadavers that may be infected with aerosol transmissible pathogens (powered air-purifying respirator or better);
  • Perform a task for which the Biosafety Plan or Exposure Control Plan requires the use of respirators;
  • Transport an airborne infectious disease case or suspected case, including MPX, within a facility or in an enclosed vehicle when the patient or client is not masked; or
  • Handle linen potentially contaminated with MPX unless effective procedures are used that prevent the release of virus particles.

Covered employers must also provide personal protective equipment (PPE) to employees exposed to a person with or suspected to have MPX, including gowns, gloves, and eye protection.

Finally, covered employers must implement written procedures for exposure incidents (aka a “significant exposure”), which is more specifically defined in the guidance. For such incidents, the following obligations will apply under the ATD Standard:

  • Notify workers who had a significant exposure of the date, time, and nature of the exposure.
  • Provide a post-exposure medical evaluation by a physician or other licensed healthcare professional (PLHCP) knowledgeable about MPX, including appropriate vaccination, prophylaxis, and treatment.
  • Provide post-exposure prophylaxis (i.e., vaccination for MPX) as soon as possible; often done through the local health department.
  • Report the exposure to the local health officer.
  • Remove the employee from the workplace if the PHLCP or local health officer recommends precautionary removal. Maintain the employee’s pay, rights, benefits, etc. during precautionary removal.

If you need assistance in ensuring compliance with MPX guidance in your workplace or have related questions, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

On September 18, 2022, Governor Newsom signed California Assembly Bill (AB) 2188, which makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment based upon: (1) a person’s use of cannabis off the job and away from the workplace, except for preemployment drug screenings, or (2) an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

An employer can still refuse to hire an applicant based on a scientifically valid preemployment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites. These alternative tests include impairment tests, which measure a person against their own baseline performance, and tests that identify the presence of tetrahydrocannabinol (THC) in an individual’s bodily fluids. THC is a chemical compound in cannabis that can indicate impairment and cause psychoactive effects. After THC is metabolized, it is stored in the body as non-psychoactive cannabis metabolites, which do not indicate impairment, only that an individual has consumed cannabis recently.

The bill does not permit an employee to possess, be impaired, or use cannabis on the job, nor does it affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace. The bill does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

The bill also exempts certain applicants and employees from the bill’s provisions, including employees in the building and construction trades, and applicants and employees in positions requiring a federal background investigation or clearance.

AB 2188 takes effect on January 1, 2024.

If you have questions about the application of AB 2188 in your business or related issues, contact a Jackson Lewis attorney to discuss.

California’s Governor signed Assembly Bill (AB) 2273, the first of its kind state legislation that requires businesses that provide online services, products, or features likely to be accessed by children to comply with specified standards.

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

Bay area cities such as San Francisco and Oakland are well known for having local ordinances, and the City of Berkeley is no exception. Here are some of the important local ordinances that employers with employees in Berkeley should be aware of.

Minimum Wage

Effective July 1, 2022, Berkely’s minimum wage is $16.99 per hour for employees who work in the city at least 2 hours per week.

Living Wage Ordinance

Contractors and vendors paid more than $25,000 per year by the city must comply with the Living Wage Ordinance. Under the ordinance covered employers must comply with certain minimum wage and benefit requirements.

Paid Sick Leave

Under Berkeley’s paid sick leave ordinance, employers must allow employees to accrue one hour of paid sick leave for every 30 hours of work.

Small businesses defined as employing fewer than 25 employees may cap an employee’s accrued paid sick leave at 48 hours and may cap the use of paid sick leave at 48 hours annually.

Employers who employ 25 or more employees may cap the accrual of paid sick leave at 72 hours, but may not cap how much leave is used annually.

Family Friendly And Environment Friendly Workplace

Similar to San Francisco’s recently amended Family Friendly Workplace Ordinance, Berkeley has the Family Friendly And Environment Friendly Workplace.

Under the ordinance, employers with 10 or more employees must allow employees who are employed within the geographic boundaries of the city and who have worked for the employer for three months to request flexible or predictable working arrangement.

Covered employees may request the arrangement two times within a 12-month period unless the employee experiences a major life event, which can include the placement of a child through birth, adoption, or foster care, or an increase in the employee’s caregiving duties for a person with a family relationship.

Commuter Benefits

Employers with 10 or more employees must provide a commute program to encourage employees to use public transit, vanpools, or bicycles.

Employers can do one of the following to comply with the requirement:

  • Provide a pre-tax payroll deduction program, allowing employees to use up to $125 in pre-tax wages for public transit or vanpool expenses.
  • Pay for employees’ public transit, vanpool, or bicycle expenses.
  • Provide free shuttle service between home and work on a company-funded vehicle.

If you need assistance with compliance with Berkeley’s employment ordinances or related issues, contact a Jackson Lewis attorney to discuss.

On Labor Day, Governor Newsom signed Assembly Bill (AB) 257, known as the FAST Recovery Act. The Act establishes a Fast Food Council comprising fast food employees, worker advocates, franchisors, franchisees, and government officials from the Department of Industrial Relations and the Governor’s Office of Business and Economic Development. The Council will have the authority to set industry-wide minimum standards for wages, hours, and other working conditions for fast food workers.

Almost immediately, a referendum effort was launched which would give California voters the opportunity to reject the measure. Supporters of the referendum need about 623,000 valid voter signatures by December 4, 2022, to qualify for the November 2024 ballot.  If the referendum is successful in getting on the ballot the law would be stayed until the measure is voted on.

In addition to the referendum, there may be legal challenges to AB 257, which may also delay implementation.

In the meantime, covered employers should prepare for the impact of the law if it remains in place.

Jackson Lewis will continue to track developments related to the FAST Recovery Act. If you have questions about the FAST Recovery Act or related issues, contact a Jackson Lewis attorney to discuss.

The California Court of Appeal for the Second Appellate District upheld the construction industry collective bargaining agreement exemption to the Private Attorneys General Act (PAGA) in Oswald v. Murray Plumbing and Heating Corporation.

Labor Code Section 2699.6

Under Labor Code section 2699.6, construction employees who perform work under a valid collective bargaining agreement (CBA) in effect any time before January 1, 2025, that meets specific requirements, are not covered under PAGA. To be exempted from PAGA, the CBA must expressly provide for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and for the employee to receive a regular hourly pay rate of not less than 30 percent more than the state minimum wage rate, and the agreement must do all of the following:

(1) Prohibit all of the violations of this code that would be redressable pursuant to this part and provides for a grievance and binding arbitration procedure to redress those violations;

(2) Expressly waive the requirements of PAGA in unambiguous terms; and

(3) Authorize the arbitrator to award any and all remedies otherwise available under PAGA.

Background

In the underlying case, Murray Plumbing and Heating Corporation (Murray) employed Oswald as a journeyman pipefitter from 2019 to 2020.

In 2020, Oswald sued Murray alleging various wage and hour violations.

Murray and Oswald’s employment relationship was governed by a Master Agreement between Oswald’s union and Murray’s contractor association, effective from 2017 to 2026. The Master Agreement required arbitration of disputes, including PAGA.

The trial court denied Murray’s motion to compel arbitration finding that Labor Code section 2699.6 did not apply.

Decision of the Court of Appeal

The Court of Appeal discussed the public policy in favor of contractual arbitration, but also the rule under Iskanian v. CLS Transportation Los Angeles LLC, against an employee’s right to bring a PAGA action being “unwaivable.”

The Court of Appeal then turned to Section 2699.6, which was a carve-out from PAGA put in place by the Legislature in 2018, which exempts employees in the construction industry from PAGA if their CBA meets the criteria discussed above.

In reviewing the CBA, the Court of Appeal also considered a retroactive Memorandum of Understanding Waiver of PAGA and Class Action Claims (MOU) put in place after the decision of the trial court.

While Oswald argued that the MOU did not apply to him because it was put in place after his employment ended, the Court of Appeal disagreed finding that as a union member Oswald “enjoy[ed] the benefits of the union’s bargaining power but he is also subject to the burdens imposed by the CBA, which limit his remedy….”

The court also reviewed the CBA and found it satisfied the elements of Section 2699.6.

Based on the Court’s review, the trial court’s denial of the motion to compel arbitration was reversed.

If you have questions about the construction industry exemption to PAGA or related issues, please contact a Jackson Lewis attorney to discuss.

On September 5, 2022, California passed Assembly Bill (AB) 257, titled the Fast Food Accountability and Standards Recovery Act, or the “FAST Recovery Act.” AB 257 establishes a Fast Food Council comprised of fast food employees, worker advocates, franchisors, franchisees, and government officials within the Department of Industrial Relations that would set industry-wide standards for wages, working hours, and other working conditions related to the health, and safety of fast food workers. The bill applies to fast food restaurants with 100 or more establishments nationwide.

AB 257, also prohibits fast food employers from discharging or discriminating, or retaliating against an employee for any of the following reasons:

  • The employee made a complaint or disclosed information,or the employer believes the employee disclosed, or may disclose, information to the franchisor, to a person with authority over the employee, or to another employee who has the authority at the fast food restaurant to investigate, discover, or correct the violation or noncompliance, to the media, to the Legislature, or a watchdog or community-based organization, or a governmental agency regarding employee or public health or safety.
  • The employee instituted, caused to be instituted, testified in, or otherwise participated in a proceeding relating to employee or public health or safety, or any council or Local Fast Food Council proceeding.
  • The employee refused to perform work in a fast food restaurant because the employee had reasonable cause to believe that the practices or premises of that fast food restaurant would violate worker orpublic health and safety laws, regulations, any occupational safety and health standard, or any safety order of the division or standards board, or would pose a substantial risk to the health or safety of the employee, other employees, or the public.

Under the law, there is a rebuttable presumption of unlawful discrimination or retaliation if a fast food restaurant operator discharges or takes any other adverse action against an employee within 90 days following the date when the operator had knowledge of any of the employee’s actions above.

Before the end of the California legislative session, AB 257 was amended to remove a proposal to impose liability on franchisors for employment violations by franchisees.

Service Employee International Union president Mary Kay Henry was reported by Bloomberg News to have said, “the bill effectively offers another form of collective bargaining for fast food workers” and referred to the legislation as a “watershed moment.”  The International Franchise Association and other industry groups urged Governor Newsom to veto the legislation to no avail and are urging other states to steer clear of similar initiatives.

AB 257 takes effect on January 1, 2023.

If you have questions about AB 257 or related issues, contact a Jackson Lewis attorney to discuss.

Employers in California are faced with a myriad of complex federal and state laws.  It does not stop there.  An employer with employees working in the City of Oakland may also need to comply with local ordinances.

The following is an overview of employment regulations in Oakland.

Minimum Wage

Like several other cities in California, Oakland has its own citywide minimum wage ordinances. Oakland’s minimum wage is currently $15.06, and increases on January 1, annually based on the Consumer Price Index.

Hotel Workers Protection and Employment Standards

Oakland also has a separate minimum wage for hotel workers working at hotels with 50 or more guest rooms. Currently, the hotel worker minimum wage in Oakland is $16.38 with health benefits or $21.84 per hour without health benefits.

Covered hotel employees must provide employees with a panic button to report an ongoing crime, threat, or another emergency, as well as support after reporting such violent or threatening behavior.

The ordinance also establishes workload restrictions and limitations on mandatory overtime and guarantees employees access to records regarding their pay rate, daily workload, and overtime.

Paid Sick Leave

Oakland also has its own paid sick leave ordinance. Employees who perform at least 2 hours of work in a particular week within Oakland are entitled to accrue paid sick leave.

Covered employees accrue one hour of paid sick leave for every 30 hours they work. Small businesses defined as having less than 10 employees who work for compensation in a given week, may cap paid sick leave hours at 40 hours, and all other employers may cap paid sick leave at 72 hours.

Employers must allow employees to use accrued paid sick leave in their “bank” in the following instances:

  • When an employee is physically or mentally unable to perform his/her duties due to illness, injury, pregnancy, or medical condition;
  • To obtain a professional diagnosis or treatment of his/her medical condition or undergo a physical examination; and
  • To aid or care for a child, parent, legal guardian or ward, sibling, grandparent, grandchild, spouse, registered domestic partner, or a “designated person” who is ill, injured, or receiving medical care, treatment or diagnosis.

A “designated person” is defined as an individual the employee designates to provide care for the employee if the employee does not have a spouse or registered domestic partner.

If you need assistance with compliance with Oakland employment ordinances or related issues, contact a Jackson Lewis attorney to discuss.

At the start of June 2022, the City of Los Angeles approved an ordinance to raise the minimum wage for certain healthcare workers at privately-owned healthcare facilities within the city.

Since June, more cities have passed nearly identical ordinances.

All ordinances apply only to privately owned healthcare facilities including:

  • General acute care hospitals;
  • Acute psychiatric hospitals;
  • Clinics that are part of general acute care hospitals and acute psychiatric hospitals;
  • Skilled nursing facilities that are part of general acute care hospitals and acute psychiatric hospitals;
  • Residential care facilities for the elderly that are located or licensed at the same address or located on the campus of an acute psychiatric hospital; and
  • Chronic dialysis clinics.

Joining Los Angeles in passing the ordinance were the cities of Downey, Long Beach, and Monterey Park.

Based on recent developments, Los Angeles and Downey ordinances are currently stayed due to referendum petitions asking the ordinances to go to the voters instead.

Only Monterey Park and Long Beach have effective dates, August 31st, and September 26th respectively, unless there are last-minute developments.

The cities of Duarte and Inglewood have agreed to put similar ordinances on the ballot in November 2022.

A handful of other cities, including Lynwood, Culver City, and Baldwin Park have considered passing an ordinance but have not acted to date.

There is also a push for a California statewide healthcare minimum wage. However, no formal bill has been proposed and the current legislative session ends on August 31st.

Jackson Lewis will continue to track changes in state and local regulations affecting employers. If you have questions about the healthcare minimum wage ordinances or related issues, contact a Jackson Lewis attorney to discuss.

 

In 2016 California passed legislation that employers who do not sponsor an employee-retirement plan must participate in a state-run retirement program. This program became known as CalSavers.

While there have been legal challenges to CalSavers, the program persists. CalSavers provides an opportunity for employees to defer wages, through payroll deductions by the employer, to a state-run individual retirement savings account program.

An employer is not required to participate in CalSavers if it sponsors or participates in a retirement plan such as a 401(k) plan or pension plan. To be exempt from CalSavers, an employer may sponsor a retirement plan for any of its employees; California employees need not enroll in the retirement plan for the employer to be exempt.

Previously, under the statute “eligible employer” was defined as a person or entity engaged in a business, industry, profession, trade, or another enterprise in the state, excluding specified federal, state, and local governmental entities, with 5 or more employees and that satisfies certain requirements to establish or participate in a payroll deposit retirement savings arrangement.

On August 26, 2022, Governor Newsom signed Senate Bill (SB) 1126, which expands the definition of eligible employer to include a person or entity, as described above, that has at least one eligible employee and that satisfies the requirements to establish or participate in a payroll deposit retirement savings arrangement, and would additionally exclude from the definition of “eligible employer” sole proprietorships, self-employed individuals, or other business entities that do not employ any individuals other than the owners of the business.

Also, the bill requires that eligible employers with 5 or more employees that do not offer a retirement savings program, to have a payroll deposit saving arrangement to allow employee participation in the program within 36 months after the board opens the program for enrollment. Moreover, by December 31, 2025, all eligible employers with one or more employees would need to have a payroll deposit savings arrangement, if they do not provide a retirement savings program.

If employers have questions about California’s retirement plan mandate or about employee benefits, contact a Jackson Lewis attorney to discuss.