As working new moms return to the workplace, employers need to remember pre-pandemic workplace requirements, such as lactation accommodations. At the start of 2020, California’s enhanced lactation accommodation law went into effect.

Under the law, every employer must provide a reasonable amount of break time to accommodate an employee expressing breast milk for the employee’s child each time the employee needs to express milk. The break shall, if possible, run concurrently with any break already provided to the employee. If the break does not occur at the time of other authorized rest time, the time does not need to be paid. This may mean employers need to provide an employee with more breaks and longer breaks to allow the employee time to express breast milk.

For breast milk expressing employees, employers must provide a room or other location, other than a bathroom, in close proximity to the employee’s work area, which is private and free from intrusion while the employee is expressing milk. The location must be safe, clean, and free of hazardous materials and have the following:

  • A surface for a breast pump and personal items;
  • A place to sit; and
  • Have access to electricity or alternative devices like extension cords.

Moreover, the employee must have access to a sink with running water and a refrigerator or other cooling device suitable for storing milk in close proximity to the employee’s workspace.

An employer that employs fewer than 50 employees may be exempt from the location requirements if it can demonstrate that providing a private room or other location would impose an undue hardship, including significant difficulty or expense.

Employers also must have a policy regarding lactation accommodation that includes how an employee can request an accommodation.

Since the law went into effect last year, the California Labor Commissioner’s Office has also published a Frequently Asked Question page, to assist employers with compliance.

Employers in San Francisco should note that the city and county of San Francisco has a separate Lactation in the Workplace Ordinance, that has its own requirements. The San Francisco Office of Labor Standards Enforcement has issued an FAQ for that ordinance.

If you have questions regarding lactation accommodation compliance or need assistance in developing a lactation accommodation policy contact a Jackson Lewis attorney to discuss.

The Supreme Court of California recently issued two opinions assessing the breadth of California’s prevailing wage law.

Before the court in Mendoza v. Fonseca McElroy Grinding Co., Inc. was a specific question about whether California Labor Code section 1772 helped establish the scope of coverage by providing that workers employed “in the execution” of a public work contract should be deemed to be employed on a public work.  In a welcome development for contractors, the court rejected a broad interpretation advanced by the California Department of Industrial Relations, instead holding that section 1772 was enacted to simply clarify that employees of non-public entities can be subject to prevailing wage obligations. When assessing what activity is actually subject to prevailing wages, the court clarified the focus should be on specifically identified activity, such as activity listed in Labor Code 1720. The court declined to definitively establish whether off-site activity including travel time can be subject to California prevailing wage obligations.

In Busker v. Wabtec Corporation, the Court addressed another narrow issue regarding the breadth of California prevailing wage law – i.e., whether such coverage can extend to “rolling stock” such as train cars and locomotives. Again, focusing on Legislative history and specific statutory language, the court noted the Labor Code had never been amended to broadly extend prevailing wage coverage to non-fixed contexts such as rolling stock. Although the court noted the concepts of “construction” and “installation” triggering prevailing wage coverage under Labor Code section 1720 could conceivably include activity outside real property, the historic context of California’s prevailing wage law did not support such a conclusion. Echoing its ruling in Mendoza, the court rejected an argument premised on Labor Code section 1772 that installation work on rolling stock was covered because such activity was necessary to execute the public works contract. According to the court, while the California Legislature has enlarged the concept of “construction” to include certain pre-and post-construction phases, the Labor Code has not been amended to extend coverage to work in non-fixed contexts outside of freestanding modular furniture.

The Mendoza and Busker decisions represent an important check on both administrative and lower court decisions which relied on the “in the execution” language within Labor Code 1772 to establish broad prevailing wage coverage standards. Moving forward, courts will need to specifically assess whether specifically identified coverage triggers within the Labor Code include off-site concepts such as travel and mobilization.

If you have questions about the application of the Supreme Court of California’s recent decisions or related issues pertaining to prevailing wage law, contact a Jackson Lewis attorney to discuss.

In April, the 9th Circuit panel held that the application of California Assembly Bill 5 (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.

The California Trucking Association (CTA) recently filed a petition for writ of certiorari with the Supreme Court.  The petition requests the Supreme Court weigh in on whether the FAAAA preempts the application to motor carriers of a state worker-classification law that effectively precludes motor carriers from using independent owner-operators to provide trucking services.

CTA argues the question warrants review because the courts of appeal and state courts disagree about the preemption issue.  Moreover, CTA argues the FAAAA was created to avoid a patchwork of state service-determining laws, acting to ensure that trucking rates, routes, and services would reflect competitive market forces. Finally, CTA argued that the application of AB 5 to owner-operators will “up-end the trucking industry’s longstanding business model” and “will destroy the uniformity necessary for the free flow of interstate commerce and the operation of nationwide business.”

The injunction imposed against enforcement of AB 5 pertaining to motor carriers will remain in place pending the Supreme Court’s decision on CTA’s petition.

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 to discuss.

On August 12, 2021, the San Francisco Department of Public Health (SDPH) issued a revised order mandating that the following businesses require both patrons, aged 12 and older, and staff to provide proof of full vaccination:

  • Operators or hosts of establishments or events where food or drink is served indoors, including but not limited to, dining establishments, bars, clubs, theaters, and entertainment venues.
  • Gyms, recreation facilities, yoga studios, dance studios, other fitness establishments, where patrons engage in cardiovascular, aerobic, strength training or other exercise involving elevated breathing.

Further, under the Order all businesses and governmental entities are urged to consider moving operations or activities outdoors, if feasible, and to the extent allowed by local law and permitting requirements.

Individuals who enter or work in a covered business on an intermittent or occasional basis for short periods of time (e.g. individuals who deliver goods or packages) are not required to provide proof of vaccination.

Fitness establishments and activities that are part of a K-12 school or operate as a program for children and youth are covered by a separate sector-specific directive (available at on the SFDPH webpage).

In addition, the new requirements for both patrons and staff are subject to any applicable requirements of federal, state, or local laws, requiring accommodations.

Acceptable proof of vaccination includes:

  • The CDC vaccination card (physical, digital, or picture of the card)
  • Documentation from a healthcare provider
  • A personal digital COVID-19 vaccine record issued by the State of California or by an approved private company.

Businesses must crosscheck proof of vaccination against each patron’s photo identification.

Written self-attestation of vaccination status is not an acceptable form of proof of vaccination under the Order.

Businesses covered by the new vaccination mandate must implement verification for patrons as soon as possible, but no later than August 20, 2021.

Businesses covered by the mandate are also required to use their “best efforts” to ascertain the vaccination status of all staff who routinely work onsite by August 20, 2021. Moreover, covered businesses must as soon as possible but no later than October 13, 2021, ensure that all staff who routinely work onsite provide proof that they are fully vaccinated before entering or working in any indoor portion of the facility.

Jackson Lewis attorneys are closely monitoring updates and changes to legal requirements and guidance and are available to help employers sift through the complexities involved with COVID-19 regulations and orders.

If you have questions regarding compliance with the San Francisco Department of Public Health Order or related workplace COVID-19 requirements, please reach out to the Jackson Lewis attorney with whom you regularly work or any member of our COVID-19 team.

A week after issuing the first in the nation order mandating all healthcare workers to be vaccinated against COVID-19, on August 11, 2021, the state of California issued an order mandating either vaccination or regular testing for all workers of schools throughout the state.

The order issued by the California Department of Public Health (CDPH), applies to public and private schools serving students in transitional kindergarten through grade 12. Home schools, childcare, and higher education are not included in the order.

Covered schools must verify the vaccination status of all workers, following the CDPH guidance for vaccine records. Under this guidance only the following may be used as proof of vaccination:

  • COVID-19 Vaccination Record Card (issued by the Department of Health and Human Services Centers for Disease Control & Prevention or WHO Yellow Card) which includes the name of the person vaccinated, type of vaccine provided, and date the last dose was administered);
  • a photo of a Vaccination Record Card as a separate document;
  • a photo of the client’s Vaccination Record Card stored on a phone or electronic device;
  • documentation of COVID-19 vaccination from a health care provider;
  • a digital record that includes a QR code that when scanned by a SMART Health Card reader displays to the reader client name, date of birth, vaccine dates, and vaccine type; or
  • documentation of vaccination from other contracted employers who follow these vaccination records guidelines and standards.

Schools are required to make a plan for tracking verified worker vaccination status and have records of vaccination verification available to provide to the local health jurisdiction for purposes of case investigation.

Workers who are not fully vaccinated, or for whom vaccine status is unknown or documentation is not provided, must be considered unvaccinated.

The order also mandates regular COVID-19 testing for unvaccinated workers. Unvaccinated workers must be tested at least once weekly with either PCR testing or antigen testing.

Unvaccinated or incompletely vaccinated workers must also observe all other infection control requirements and are not exempted from the testing requirement even if they have a medical contraindication to vaccination.

Schools with workers required to undergo COVID-19 testing should have a plan in place for tracking test results and conducting workplace contact tracing and must report results to local public health departments.

The order became effective on August 12, 2021. However, covered facilities have until October 15, 2021, to be in full compliance with the requirements.

Jackson Lewis attorneys are closely monitoring updates and changes to legal requirements and guidance and are available to help employers sift through the complexities involved with COVID-19 regulations and orders.

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

 

San Francisco’s Measure L, which passed with the overwhelming support of the voters, will be effective in 2022 for businesses operating in the City of San Francisco. Measure L, titled the “Overpaid Executive Gross Receipts Tax,” imposes an additional tax on gross receipts or payroll expenses of any business in which the CEO (or highest-paid managerial employee) earns more than 100 times the median compensation of its employees. Companies with a CEO pay ratio of 100:1 or more will be subject to the Measure L tax, and the tax rate will increase for every additional 100 times the CEO’s pay exceeds the median worker’s pay. The tax rate reaches its maximum level when the ratio reaches 600 to 1, with a maximum tax on payroll of 2.4% or a surcharge on the gross receipts tax of up to .6%. Businesses exempt from the City’s gross receipts tax due to being a small business enterprise are exempt from the pay ratio tax. Also exempt are some nonprofit organizations and businesses exempt from local taxation, such as banks and insurance companies. According to the City of San Francisco estimates, they expect the measure to generate between $60 million and $140 million a year in taxes starting in 2022. Revenue from the tax will become part of San Francisco’s general fund.

Read the full article on Jackson Lewis Benefits Law Advisor.

Last week, the City of West Hollywood approved an expansive hotel worker protection ordinance. The ordinance seeks to protect the safety and security of hotel workers and improve their working conditions. The following is a summary of the ordinance’s five key elements.

  1. Personal Security Devices

Similar to an ordinance passed in 2020 by Sacramento, West Hollywood will require hotel employers to provide personal security devices (i.e., panic buttons) to all hotel workers assigned to work in guest rooms or restroom facilities where other hotel workers are not present. Hotel employers shall also assign a security guard, manager, or supervisory hotel staff member to provide immediate on-scene assistance in response to the activation of a personal security device.

In addition, hotel employers must also provide training to workers regarding the following:

  • How to use and maintain personal security devices
  • The employer’s protocol for responding to activation of devices
  • Hotel worker rights and hotel employer obligations

Such training must be provided by the effective date of this requirement or within one month of the worker’s date of hire, whichever is later.

Additionally, hotel employers must provide hotel workers with written notice of their rights at the time of hire or on the effective date of this chapter, whichever is later. Such notice shall be provided in English, Spanish, and any other language spoken by five percent or more of the hotel workers employed by the hotel employer.

A hotel employer must also place signs, written in at least 18-point font, that include the following items on the back of the entrance door to each guest room and restroom facility in a hotel: (1) Statement providing that “The Law Protects Hotel Workers From Threatening Behavior”; (2) citation to this chapter of the West Hollywood Municipal Code; and (3) notification to guests that the hotel employer provides personal security devices to its employees.

Lastly, the hotel employer must retain records of incidents of personal security device activation for three years from the incident.

This section becomes operative on January 1, 2022.

  1. Compensation and Workload

Employers at hotels with fewer than forty guest rooms shall not require room attendants to clean rooms larger than 4,000 square feet of floor space in any eight-hour workday unless the hotel employer pays the room attendant twice the room attendant’s regular rate of pay for every hour worked during the workday. The same is true for hotels with forty or more guest rooms, except that attendants must not clean rooms larger than 3,500 square feet in floor space.

If a room attendant is assigned to clean seven or more checkout rooms or additional bedrooms during any eight-hour workday, each such checkout room or additional bedroom shall, for purposes of this subsection, count as 500 square feet, regardless of the actual square footage of each room. These limitations apply to any combination of spaces, including guest rooms, meeting rooms, and other rooms within the hotel, regardless of the furniture, equipment, or amenities occupying such rooms.

There are additional provisions regarding workload proration, voluntary overtime, and preservation of records.

This section becomes operative on January 1, 2022.

  1. Right of Recall

Unlike several local right of recall ordinances issued since 2020 that specifically pertain to COVID-19, this ordinance is broader and applies to any hotel worker who is laid off.

A hotel employer must offer qualifying laid-off hotel workers, in writing, all job positions for which the employee is qualified that become available after the ordinance becomes effective.

A hotel worker is qualified for a position if:

  • The worker held the same or similar position at the site at the time of the worker’s most recent lay-off; or
  • The worker is or can be qualified for the position with the same training that would be provided to a new hotel worker hired into that position.

Hotel employers must comply with requirements regarding offers, including order of preference, seniority, the timing for acceptance and declination, and notice of non-selection and notice of rights. Hotel employers must retain the following records for at least three years:

  • The worker’s full name, job classification, date of hire, last known mailing address, telephone number, and email.
  • A copy of the layoff notice provided to the worker.

This section becomes operative on September 1, 2021.

  1. Worker Retention

Changes of hotel control trigger time-sensitive notice and retention requirements. Within five days of a change of control of a hotel, the successor employer shall post written notice of the change in the affected hotel.

Within fifteen days of a change of control, an incumbent hotel employer shall provide the successor employer with a list of eligible hotel workers.  Managerial, supervisory, or confidential employees do not have a right of retention under the ordinance.

During the retention period, the successor employer shall offer employment to each eligible hotel worker for no less than 90 days. Successor employers are not required to offer employment to the worker if the employer has reasonable and substantiated cause not to retain based on the individual’s performance or conduct. The successor employer also will not be required to retain workers if it determines during the retention period that fewer workers are required.

The ordinance mandates the successor employer provide retained workers with the same terms and conditions established by the successor hotel employer as required by law and shall not be discharged except for good cause based on individual performance or conduct.

Retained hotel workers shall be employed under the same terms and conditions as the incumbent employee and the successor employer must comply with other terms regarding offers, performance evaluation, and record retention.

This section becomes operative on September 1, 2021.

  1. Public Housekeeping Training

The ordinance requires West Hollywood to establish a certification and designation process of at least one public housekeeping training organization. The hotel employer shall contract with a certified public housekeeping organization to at least annually conduct training and examination of hotel workers.

The training program will include:

  • Hotel worker rights and hotel employer responsibilities.
  • Best practices for identifying and responding to suspected instances of human trafficking, domestic violence, or violent or threatening conduct.
  • Best practices for effective cleaning techniques to prevent the spread of disease.
  • Best practices for identifying and avoiding insect or vermin infestations.
  • Best practices for identifying and responding to the presence of other potential criminal activity.

This section becomes operative July 1, 2022.

The ordinance provides for limited waiver and exceptions, as well as civil remedies for non-compliance.

If you have questions about compliance with the West Hollywood Ordinance or related hospitality ordinances, please contact a Jackson Lewis attorney to discuss.

With the significant increase in COVID-19 cases, the state of California has started implementing new measures to try to combat the rise.  On July 26, 2021, the California Department of Public Health (CDPH) issued an order requiring covered healthcare facilities to verify the vaccination status of all workers and put mandatory testing requirements in place for those employees who are unvaccinated.

Only a week and a half later, CDPH issued a new, first in the nation, order mandating that workers who provide services or work in certain health care facilities receive their first dose of a one-dose vaccine or their second dose of a two-dose vaccine by September 30, 2021.

Covered Facilities

Workers for the following facilities are covered by the order:

  • General Acute Care Hospitals
  • Skilled Nursing Facilities (including Subacute Facilities)
  • Intermediate Care Facilities
  • Acute Psychiatric Hospitals
  • Adult Day Health Care Centers
  • Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
  • Ambulatory Surgery Centers
  • Chemical Dependency Recovery Hospitals
  • Clinics & Doctor Offices (including behavioral health, surgical)
  • Congregate Living Health Facilities
  • Dialysis Centers
  • Hospice Facilities
  • Pediatric Day Health and Respite Care Facilities
  • Residential Substance Use Treatment and Mental Health Treatment Facilities

Covered Workers

“Worker” for purposes of the order is defined as all paid and unpaid individuals who work in indoor settings where care is provided to patients or patients have access for any purpose. Per the order, this includes workers who have the potential for direct or indirect exposure to patients, and include nurses, technicians, students, contractual staff not employed by the facility directly, security, facilities management, administrative, and billing personnel.

Exemptions

Workers may be exempt from the vaccination requirements only if they provide a declination form signed by the worker stating that they are declining based on religious beliefs or due to a qualifying medical reason. To be eligible for the qualified medical reason exemption the worker must provide their employer a written statement signed by a physician, nurse practitioner, or another licensed medical professional practicing under the license of a physician, stating the individual qualifies for the exemption. The statement should also indicate the probable duration of the worker’s inability to receive the vaccine if known. The statement should not describe the underlying medical condition or disability.

Exempt workers must be tested for COVID-19 twice weekly if in acute health care and long-term care settings, and once weekly if in other health care settings. Exempt workers must also wear a surgical mask or higher-level respirator approved by the National Institute of Occupational Safety and Health, such as an N95 filtering facepiece respirator, at all times while in the facility.

Recordkeeping

Consistent with privacy laws and regulations, the facility must maintain records of each worker’s vaccination status or exemption. For those employees who are exempt from the vaccination requirement, the facility must also maintain all COVID-19 test results.

Jackson Lewis attorneys are closely monitoring updates and changes to legal requirements and guidance and are available to help employers sift through the complexities involved with COVID-19 regulations and orders.

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

On August 2nd, seven Bay Area counties and the city of Berkeley joined the ranks of Los Angeles, Sacramento, and Yolo counties in issuing local ordinances that reinstitute indoor masking mandates. The orders require all individuals, regardless of vaccination status, to wear face coverings when indoors in public settings, with limited exceptions, beginning on August 3rd.

The following counties are included in the joint mandate:

  • Alameda
  • Contra Costa
  • Marin
  • San Francisco
  • San Mateo
  • Santa Clara
  • Sonoma

The City of Berkeley, which runs its own public health agency, also joined in the mandated mask orders.

Under the revised orders everyone, including fully vaccinated individuals are required to wear face coverings indoors in public settings, including but not limited to office settings. The mandates require businesses to implement the indoor face-covering order and encourage employers to make available face coverings to all individuals entering their businesses.

There are some exemptions in the orders, such as under the San Francisco order, which generally allows individuals to remove face coverings indoors for the following reasons:

  • Indoor public settings while alone or with members of the same household
  • When actively eating or drinking
  • In a personal motor vehicle alone or with members of the same household
  • Live or recorded performances or professional sports
  • Religious gatherings
  • Personal services such as facials only while actively receiving service
  • Certain recreational sports such as swimming

While the California Department of Public Health, is currently only recommending universal masking indoors, employers should check the status of the local county and city health orders if they are uncertain about the requirements for masking in areas they operate. The state of California COVID-19 homepage provides links to all county and city public health departments.

Jackson Lewis will continue to track COVID-19 related statutes and ordinances around the state of California. If you have questions about masks in the workplace or related issues, contact a Jackson Lewis attorney to discuss.

On July 28th the California Department of Public Health (“CDPH”) issued revised guidance for the use of masks, including recommending universal masking indoors statewide. This guidance comes on the heels of changes in the Centers for Disease Control (“CDC”) guidance recommending masking for indoor settings in areas with substantial and high transmission of COVID-19. The revised CDPH guidance for universal indoor masking is only a recommendation at this time. However, several counties have gone one step further and are now mandating masking indoors.

Mid-July, the County of Los Angeles issued a revised order mandating masking for public indoor settings regardless of an individual’s vaccination status. More recently, the counties of Sacramento and Yolo have issued orders mandating masking indoors.

These two counties’ orders nearly mirror each other and require that face coverings be worn, regardless of an individual’s vaccination status, in all indoor public settings, venues, gatherings, and workplaces.

Going forward, individuals, businesses, venue operators, and others responsible for the operation of indoor public settings must:

  • Require patrons to wear face coverings for all indoor settings, regardless of their vaccination status, and
  • Post clearly visible and easy-to-read signage at all entry points for indoor settings to communicate the masking requirements to patrons.

The order indicates individuals do not need to wear a face-covering indoors in any of the following circumstances:

  • When working alone in a closed office or room,
  • When actively eating and/or drinking,
  • When swimming or showering in a fitness facility,
  • When obtaining a medical or cosmetic service involving the nose or face, or
  • If the individual is specifically exempted pursuant to CDPH guidance.

The Sacramento and Yolo County orders became effective July 30, 2021.

Several other counties, including San Diego and Riverside, are now strongly recommending, but not yet mandating, masking indoors.

Jackson Lewis will continue to track COVID-19 related statutes and ordinances around the state of California. If you have questions about masks in the workplace or related issues, contact a Jackson Lewis attorney to discuss.