While students are enjoying the dog days of summer, California employers may want to review leaves available to parents and caregivers before the school year begins.

Just as there are considerations when employing minors, there are also leave entitlements employers should be aware of when employing parents and caregivers.

Under the Labor Code, “Parent” is defined as “a parent, guardian, stepparent, foster parent, or grandparent of, or a person who stands in loco parentis to, a child.”

Time Off for School Activities

Under Labor Code section 230.8, employers with 25 or more employees must permit up to 40 hours of unpaid time off to parents for the following reasons:

  • To find, enroll, or reenroll their child in school or with a licensed childcare provider
  • To participate in activities of the school or childcare provider
  • To address a childcare provider or school emergency

Time off other than to address an emergency is limited to 8 hours per month and reasonable notice must be provided to the employer.

The employee, if requested by the employer, shall provide documentation from the school or licensed childcare provider as proof that he or she engaged in child-related activities on a specific date and at a particular time.

Time Off for Suspension or Expulsion Meetings

Under Labor Code section 230.7, all employers are prohibited from discharging or discriminating against a parent or guardian employee for taking time off to appear at their student’s school for purposes of suspension or expulsion meeting pursuant to Education Code section 48900.1.

In addition, employees may be entitled to leave to care for a child’s illness or injury. If you have questions regarding school-related leave or related issues, contact a Jackson Lewis attorney to discuss.

On July 20, 2023, the Cal/OSHA Standards Board approved promulgating an Emergency Temporary Standard for Respirable Crystalline Silica (Silica). The Silica ETS will require the fabricated stone industry to protect its employees from silica exposure. According to Cal/OSHA, engineered stone, which is cut to create countertops in home construction, is much cheaper than natural alternatives, but contains more than 90% silica.

In early 2023, the Cal/OSHA Standards Board received a petition from the Western Occupational and Environment Medical Association (WOEMA) for an amendment to the General Safety Orders pertaining to Silica. The request was for an amendment via Emergency Temporary Standard (ETS) to address an increase in the number of reported cases of advanced silicosis among workers exposed to silica in engineered fabrication shops.  

In WOEMA’s petition, they requested the ETS with the following elements:

  • Applies to workplaces using engineered stone with a high silica content or greater than 50 percent.
  • Regulated areas to limit employee access to areas where artificial stone is fabricated.
  • Prohibition on fabrication without the use of water to suppress dust.
  • Requirement for airline respirators or power air-purifying respirators (PAPRs) for all work involving fabrication of artificial stone.
  • Annual documentation indicating that the employer has sent a letter to the Cal/OSHA Occupational Carcinogen Control Unit reporting the use of RCS, as required by section 5203 “Carcinogen Report of Use Requirements.”
  • Strengthened penalty structure so that violations of the ETS result in citations classified as serious.
  • Updated guidance prepared by Cal/OSHA with information on computerized tomography (CT) exams and other diagnostic studies.
  • Reporting requirement for physicians or other licensed health care professionals (PLHCP) to inform Cal/OSHA of any silicosis diagnoses of moderate severity or worse.

In deciding to move forward with a Silica ETS, the Cal/OSHA Standards Board is essentially disregarding its own staff evaluation, which concluded that many of the proposed provisions are already contained in the existing Standard. The staff recommended denial of adopting an ETS but instead request Cal/OSHA consider reviewing and updating the Standard as needed.

Instead, the Board adopted the proposed petition. It is anticipated that the Silica ETS will be drafted over the next several months.

If you have questions on the ETS for Silica Exposure or related issues, contact a Jackson Lewis attorney to discuss.

On July 1, 2023, the City of Los Angeles Freelance Worker Protections Ordinance went into effect. The ordinance sets forth certain requirements for hiring entities retaining freelance workers operating within the City of Los Angeles.

Definition of Freelance Worker

Under the ordinance, a freelance worker is defined as an individual or entity composed of no more than one person that is hired by a “Hiring Entity” as a bona fide independent contractor to provide services in exchange for compensation. Under the definition, a freelance worker is an individual or entity with no employees.  

Definition of Hiring Entity

Under the ordinance, a hiring entity is defined as being regularly engaged in a business or commercial activity but does not include entities that hire app-based drivers to provide prearranged transportation or delivery services.

Covered Work

The protections under the ordinance apply to work performed by a freelance worker after July 1, 2023, in the City of Los Angeles and valued at $600 or more either by an individual job or cumulative jobs in a calendar year.

Requirements of the Ordinance and Protections Provided

  • Hiring entities are required to provide the freelance workers with a written contract for all agreements valued at $600 or more. In addition to information regarding the hiring entity and the freelance worker, the contracts must include both (i) an itemization of all services to be provided by the freelance worker, the value of the services to be provided pursuant to the contract, and the rate and method of compensation; and (ii) the date by which the hiring entity must pay for the contracted compensation or the manner by which such date will be determined.
  • The hiring entity is required to provide full payment by the date specified in the contract, or no later than 30 days after work is completed if no date is specified in the contract.
  • Both the hiring entity and freelance worker must retain records for 4 years.
  • The hiring entity may not retaliate against any freelance worker for exercising their rights under the ordinance.
  • The ordinance provides for additional damages and remedies available to the freelance worker where the hiring entity fails to respond to a freelance worker’s request for a written contract prior to commencing work, fails to pay amounts agreed to under the contract, or violates any other provisions of the ordinance.

If you have questions about the City of Los Angeles Freelance Worker Protections Ordinance or related issues, contact a Jackson Lewis attorney to discuss.

The California Supreme Court in Kuciemba v. Victory Woodworks, Inc was asked to rule on two questions by the 9th Circuit:

  1. If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, causing injury, does the California Workers’ Compensation Act (WCA) bar the spouse’s negligence claim against the employer?
  2. Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?

Background

The plaintiffs in this matter are a husband and wife who filed a lawsuit against the husband’s employer. The husband worked for the employer at a construction site in San Francisco in 2020, where he was required to work in close contact with other workers who may have had COVID-19 in violation of the County’s health order. The husband’s employer allegedly failed to take COVID-19 precautions mandated in the County’s health order. The plaintiffs alleged because the employer failed to take precautions to prevent the spread of COVID-19, the husband became infected with COVID-19. The husband then transmitted COVID-19 to his wife, who became severely ill and was hospitalized. Plaintiffs filed suit in federal court against the husband’s employer claiming negligence, negligence per se, and premise liability. The district court granted the employer’s motion to dismiss.

Plaintiffs appealed to the U.S. Court of Appeals for the 9th Circuit and the 9th Circuit requested the California Supreme Court rule on the two issues listed above.

Workers’ Compensation Act

As to the first question, the California Supreme Court ruled the WCA does not bar a spouse’s negligence claim.

With limited exception, the WCA is intended to be the sole and exclusive remedy of the employee or their dependents to collect compensation against the employer. Similarly, workers’ compensation benefits provide the exclusive remedy for third-party claims if asserted claims are “collateral to or derivative of” the employee’s workplace injury.

The Court distinguished between claims that were “collateral to or derivative of” the employee’s workplace injury, and claims that are merely factually related to the employee’s injury.

Specifically, the Court determined the WCA does not preempt claims where the injuries of the plaintiff did not require proof of the employee’s injuries as a legal factor for the plaintiff’s cause of action, even if the two injuries are factually related. Even if the plaintiff’s injury would not have been caused “but for” the employee’s injury, the causal link is insufficient to render the claims derivative.

Therefore, the WCA does not apply because, while the wife’s negligence claim against the employer was factually related to or caused by his injury, her claim was not legally dependent on her husband’s workplace injury.

Duty of Employer to Prevent Exposure

The Court ruled employers do not have a duty of care to prevent “take-home exposure” of COVID-19 to an employee’s household members.

California Civil Code section 1714 generally imposes an expansive duty of care, which the Court found could impose a duty of care upon employers. The Court determined the wife’s injury was reasonably foreseeable in that permitting the workplace spread of COVID-19 could cause an employee’s household members to contract the illness. The Court also determined the “moral blame” likely tilted toward finding a duty of care, as the employer could have profited off its failure to abide by the health order to prevent the spread of COVID-19.

However, the Court recognized imposing a duty of care upon employers to employees’ household members would impose a “significant and unpredictable burden” because it would be “impossible to eliminate the risk of infection, even with perfect implementation of best practices,” which could result in untold increases in litigation against employers with dire financial consequences. Given the high burden, this would impose on California businesses, the court systems in increased litigation, and burdens on the community, the Court favored creating an exception to the general rule of Civil Code section 1714. Therefore, the employer owed the employee’s wife no duty of care.

Without a duty of care, a negligence claim necessarily will fail against an employer.

If you have questions about the holding in this case or related issues, contact a Jackson Lewis attorney to discuss.

On July 10, 2023, Governor Newsom signed Assembly Bill (AB) 102 which will amend the Budget Act of 2023. The bill will take effect immediately as a Budget Bill.

While appropriations bills such as AB 102 are generally not of much interest to private employers, AB 102 is noteworthy because it includes a $3,000,000 appropriation to the Industrial Welfare Commission (IWC).   

The IWC is the administrative entity that was established to regulate wages, hours, and working conditions in California. The IWC developed the wage orders, which set forth many requirements that employers must comply with in addition to the California Labor Code.  The IWC was previously defunded by the California Legislature effective July 1, 2004, but its 18 wage orders remain in effect.  As a result of the defunding of the IWC, the wage orders have not been updated since 2001.

Under the appropriations outlined in AB 102, the IWC will convene industry-specific wage boards and adopt orders specific to wages, hours, and working conditions in such industries, provided that any such orders shall not include any standards that are less protective than existing state law.

The IWC will be mandated to prioritize for consideration industries in which more than 10 percent of workers are at or below the federal poverty level.

Under AB 102, the IWC shall convene by January 1, 2024, with any final recommendations for wages, hours, and working conditions in new wage orders adopted by October 31, 2024.

The renewed funding of the IWC is seen by industry groups as the state’s attempt to push through similar efforts to increase regulations for industries such as the fast-food industry.  Last year, the state passed the FAST Recovery Act, which was intended to form a council that would develop regulations for fast food workers’ working conditions. However, the law was blocked pending a voter referendum on the statute.  

If you have questions about the refunding of the IWC or related issues, contact a Jackson Lewis attorney to discuss.

While the California COVID-19 State of Emergency was lifted several months ago, one holdover of the COVID-19 pandemic is the Cal/OSHA COVID-19 Prevention Non-Emergency Regulations (NER), which remain in effect until February 2025.

Under the NER, employers have various obligations to ensure employees are protected in the workplace. Under these regulations, employers have additional obligations should an outbreak occur in the workplace.

The NER relies on the California Department of Public Health’s (CDPH) definition of “outbreak” for purposes of determination. Throughout the pandemic, an outbreak was defined as three or more employees in an exposed group testing positive for COVID-19 within a 14-day period. Now, as of June 20, 2023, CDPH revised its definition to make it less likely for employers to experience an outbreak, changing the definition to 3 positive COVID-19 cases during a 7-day period.

 Cal/OSHA has updated its Frequently Asked Questions Page for the NER to reflect these changes as well.

If you have questions about compliance with the Cal/OSHA COVID-19 NER or related issues contact a Jackson Lewis attorney to discuss.

As Summer starts to heat up, employers with outdoor worksites should review their Heat Illness Prevention Plan (HIPP) compliance under Cal/OSHA’s outdoor heat illness prevention standard.

Which Employers Are Covered?

The standard applies to any employee working outside. This may include positions that are not solely outside.

Obligations for Covered Employers

Covered employers must take the following steps to prevent heat illness in the workplace:

  1. Train employees and supervisors on heat illness prevention.
  2. Provide enough “fresh, pure, and suitably cool” water so that each employee can drink at least 1 quart per hour and encourage them to do so.
  3. Ensure timely access to shade when the temperature exceeds 80 degrees Fahrenheit and otherwise upon an employee’s request.
  4. Encourage employees to take a preventative cool-down rest in the shade when they feel the need to do so to protect themselves from overheating at all times.
  5. Implement effective emergency response procedures related to heat illness.
  6. Closely observe employees that have been newly assigned to a high-heat area for the first 14 days of employment, and all employees during heat waves.
  7. Develop and implement a written Heat Illness Prevention Plan.

Additional High Heat Procedures

Certain industries must comply with additional high-heat illness prevention procedures when the temperature equals or exceeds 95 degrees Fahrenheit. These industries include:

  • Agriculture
  • Construction
  • Landscaping
  • Oil and gas extraction
  • Transportation and delivery of agricultural products and construction or other heavy materials, except for employment that consists of operating an air-conditioned vehicle and does not include loading or unloading

High heat procedures include ensuring employees are observed regularly for signs of heat illness and establishing effective communication methods so workers can contact a supervisor when needed.

Written HIPP

All covered employers must have a written HIPP, which is generally recommended to be a stand-alone document. Cal/OSHA has an e-tool to assist with developing a HIPP on its website.  

Inside Heat

Summertime can also mean hotter temperatures inside and while the official Indoor Heat Standard is still in the works, employers should still evaluate and address heat hazards indoors as Cal/OSHA has begun citing employers for indoor heat under Section 3203.

If you have questions about heat injury prevention 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 COVID-19 State of Emergency may be over but many employers are still feeling the economic effects of the pandemic.  In 2022, when COVID-19 Supplemental Paid Sick Leave (SPSL) was extended for the final time, the legislation also provided for a grant program for certain businesses to offset the costs of providing SPSL.

The State of California has a website where eligible businesses may apply for the grant.

Who Is Eligible?

A “qualified small business or nonprofit” must satisfy the following criteria to be eligible to receive a grant award under the program:

  1. Must meet the definition of a qualified small business or nonprofit as confirmed by the California Office of Small Business Advocate (CalOSBA) or fiscal agent through review of revenue declines, other relief funds received, credit history, tax returns, and bank account validation.
    1. Must be one of the following:
      1. A “C” corporation, “S” corporation, cooperative, limited liability company, partnership, or limited partnership.
      2. A registered 501(c)(3), 501(c)(6), or 501(c)(19).
    2. Began operating before June 1, 2021.
    3. Is currently active and operating.
    4. Had 26 to 49 employees between January 1, 2021, and December 31, 2022, and must provide payroll data and an affidavit, signed under penalty of perjury, attesting to that fact.
    5. Has provided COVID-19 Supplemental Paid Sick Leave pursuant to the requirements of Sections 248.6 and 248.7 of the California Labor Code.
    6. Must provide organizing documents, including a 2020 or 2021 tax return or Form 990, and a copy of official filing with the Secretary of State or with the local municipality, as applicable, including, but not limited to, Articles of Incorporation, Certificate of Organization, Fictitious Name of Registration, or government-issued business license.
  2. Must have an owner – or in the case of a nonprofit, an officer – identified as the authorized signer on the application that is at least 18 years of age.
  3. Must be able to provide an acceptable form of identity verification through an acceptable government-issued photo ID.

What Can Funds Be Used For?

Eligible businesses may use the funds to reimburse for SPSL provided between January 1, 2022, and December 31, 2022.  Businesses will be required to provide proof of employee payroll records that verify all SPSL provided by the business was pursuant to the state requirements under Labor Code sections 248.6 and 247.7.

For additional information on the application process, eligible businesses should review the State’s application portal at caspsl.com.

If you have additional questions about California SPSL or related issues contact a Jackson Lewis attorney to discuss.  

Soap Operas are known for drama.  Nothing has caused more drama in the last two years than vaccine mandates.  Last week, a California court determined that a plaintiff’s request for religious accommodation at General Hospital could not be accommodated.  The court concluded defendant had advanced sufficient evidence that unvaccinated employees threatened the health and safety of others during the relevant period and that “testing by itself was not sufficient to address the health and safety concerns associated with the global pandemic during the relevant time period.” Rademacher v. American Broadcasting Companies, Inc.

Read the full article on Jackson Lewis’ Disability, Leave & Health Management Blog.

There are several posting requirements in California for employers and it is important to ensure the appropriate posters are displayed in an area frequented by employees where they may be easily read during the workday.

Two of California’s main administrative agencies that regulate workplace requirements, the Department of Industrial Relations and the California Civil Rights Department (formerly known as the Department of Fair Employment and Housing), have websites that list the required posters and link to copies of the posters.

Some of the important posters that all employers are required to display include:

  • Industrial Welfare Commission (IWC) wage orders
  • Pay Day Notice
  • California Minimum Wage Notice
  • Paid Sick Leave Notice
  • Safety and health protection on the job

Other posters are required for employers of different sizes as well as for specific industries. Certain localities may also have their posting requirements such as the local minimum wage or related local ordinance requirements. Please check the administrative agencies’ websites for more details.

Employers should also ensure that fillable posters, such as the Pay Day Notice, are appropriately filled out and updated timely should the business make changes.

Since 2022, California allows employers to also distribute the posters to employees by email with the relevant document(s) attached. While this does not remove an employer’s obligation to physically display posters as required and detailed above, the measure is intended to clarify the employer’s ability to communicate required information more effectively.

If you have questions about required postings for California or related issues contact a Jackson Lewis attorney to discuss.