In the wake of recent workplace shootings, employers may be wondering if there are any specific regulations to protect employees from such events. Labor Code § 6302(h) as part of the California Occupational Safety and Health Act, excludes “any injury or illness or death caused by the commission of a Penal Code violation” from the definition of serious injury or illness, and Cal/OSHA has no mandatory duty to respond to such incidents. However, Cal/OSHA does have the authority to investigate any workplace accident on a discretionary basis, as provided by Labor Code § 6313(b), which states: “[t]he division may investigate the causes of any other industrial accident or occupational illness which occurs within the state in any employment or place of employment… and shall issue any orders necessary to eliminate the causes and prevent reoccurrence.”

Currently, Cal/OSHA only specifically regulates workplace violence in the Health Care Industry. But there is no regulation covering workplace violence in other industries.

Nevertheless, Cal/OSHA does require employers to regularly identify and evaluate workplace hazards, under California’s version of the general duty clause.  As these incidents become more prevalent, or if an industry has factors that could increase the risk of violence as detailed below, Cal/OSHA may take the position that workplace violence is a recognized hazard that should be mitigated.

Indeed, Cal/OSHA, in its guidance on workplace violence, cites certain factors to consider for the potential of violence including:

  • Exchange of money
  • Working alone at night and during early morning hours
  • Availability of valued items
  • Guarding money or valuable property
  • Performing public safety functions
  • Working with patients, clients, or similar
  • Employees with a history of assaults or who have exhibited belligerent, intimidating, or threatening behavior.

According to Cal/OSHA, workplaces that identify factors for potential workplace violence should include the following in their Injury and Illness Prevention Plan (IIPP):

  • A system for ensuring that employees comply with safe and healthy work practices, including ensuring that all employees, including supervisors and managers, comply with work practices designed to make the workplace more secure and do not engage in threats or physical actions which create a security hazard to other employees, supervisors or managers in the workplace.
  • A system for communicating with employees about workplace security hazards, including a means that employees can use to inform the employer of security hazards at the worksite without fear of reprisal.
  • Procedures for identifying workplace security hazards including scheduled periodic inspections to identify unsafe conditions and work practices whenever the employer is made aware of a new or a previously unrecognized hazard.
  • Procedures for investigating occupational injury or illness arising from a workplace assault or threat of assault.
  • Procedures for correcting unsafe conditions, work practices, and work procedures, including workplace security hazards, and with attention to procedures for protecting employees from physical retaliation for reporting threats.
  • Training and instruction about how to recognize workplace security hazards, measures to prevent workplace assaults, and what to do when an assault occurs, including emergency action and post-emergency procedures.

These policies and procedures should also be mirrored in Employee Handbooks to the extent necessary to ensure communication of the requirements.

If you have questions about including workplace violence prevention information in your IIPP or employee handbook, contact a Jackson Lewis attorney to discuss.

The passage of Prop 24, the California Privacy Rights Act of 2020 (“CPRA”), has caused a bit of confusion among businesses in California.  The confusion stems from the fact that the CPRA has an effective date of January 1, 2023, amending the existing California Consumer Privacy Act (CCPA) when it takes effect, but also immediately extending the current limited exemptions under the CCPA for employment-related data, also to January 1, 2023. (Without the CPRA, the limited exemptions would have already expired.)_ It appears that this labyrinth of amendments, extensions, and exemptions has misled some businesses subject to CCPA (the rules for which will change a little under the CPRA) into believing that they are completely exempt from privacy obligations until 2023 with respect to job applicants, employees, owners, directors, officers, medical staff, and contractors (collectively “employees and applicants”).  This is not the case!  In short, businesses have existing obligations under the CCPA concerning the personal information of their employees and applicants, which became effective on January 1, 2020.

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

California passed an expanded COVID-19 Supplemental Paid Sick Leave statute (SPSL) in March, that included coverage for employees to get vaccinated. More recently, the County of Los Angeles passed an urgency ordinance on May 18th that mandates additional paid leave for some employees in unincorporated areas of the county to be vaccinated.

Covered Employers

This new ordinance would cover all employers in the unincorporated areas of the County of Los Angeles.

Paid Time Off Requirement

Full- and part-time employees who have exhausted time off under the state SPSL and who perform any work in the unincorporated areas of Los Angeles County are eligible for the new Los Angeles County paid time off entitlement.

Full-time employees, who are defined as either those employees designated by the employer as full-time or who worked or were scheduled to work on average at least 40 hours per week in the two weeks preceding their leave, are entitled to use up to 4 hours of additional paid time off, per vaccination injection. Part-time employees would be entitled to a prorated portion of additional paid time off.

Notification Requirement

Covered employers must post in a conspicuous place a written notice that will be made available electronically by the Los Angeles County Department of Consumer and Business Affairs. However, the posting is not yet available on the county’s website.

Record-Keeping Requirement

Employers will be required to keep records that show compliance with the ordinance including payroll records for a four-year period.

Operative Period

As an urgency ordinance, the ordinance went into effect immediately. However, the ordinance applies retroactively to January 1, 2021, similar to the state SPSL. The ordinance will sunset on August 31, 2021.

Jackson Lewis will continue to track state and local regulations pertaining to COVID-19 in the workplace. If you have questions about the new Los Angeles County ordinance or issues pertaining to COVID-19 leave requirements, please contact a Jackson Lewis attorney to discuss.

On May 20th, the Cal/OSHA Standards Board was set to vote on revisions to COVID-19 Emergency Temporary Standards (“ETS”).

The evening before the vote the Deputy Chief for the Division of Occupational Safety and Health (“Division”) submitted a request that the Standards Board not to vote on proposed revisions and instead allow the Division to submit new proposals that would align with updated guidance from the CDC and state agencies.

While the proposed changes were intended to adjust the ETS to new developments pertaining to COVID-19 guidance, the Division wanted to ensure the revisions follow the more recent guidance.

The Standards Board still listened to numerous public comments which ranged from employer groups that requested a total revocation of the ETS to employee advocates who requested no change be made at all.

After lengthy public comment, the Standards Board decided to table the vote and scheduled a June 3rd emergency meeting to vote on a revised version of the ETS. The revised version must be posted by May 28, 2021.

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

Santa Clara County wasted no time in altering its public health regulations in response to the county’s graduation to the ‘yellow tier’ of California’s Blueprint For a Safer Economy on May 18, 2021.  Within hours, the County announced a new Public Health Order that went into effect on May 19, 2021.

The Order retires several of the most burdensome requirements of the County’s October 5, 2020, Risk Reduction Order.  As a result, businesses are no longer required to (1) maximize the number of people who work remotely; (2) submit Social Distancing Protocols to the County Public Health Department; or (3) observe County-issued limitations on in-person capacity.

However, the Order imposes several new requirements on employers, including:

  1. Face Coverings: All businesses must require employees and customers to wear face coverings in accordance with the Mandatory Directive on Use of Face Coverings.
  2. Capacity limitations: Some businesses remain subject to State-issued COVID-19-related capacity limitations and must limit the number of people inside their facilities to a certain percentage of their usual maximum occupancy.
  3. Industry-Specific Requirements: Businesses must follow any industry-specific guidance from the State.
  4. Mandatory Reporting Regarding Personnel Contracting COVID-19: Businesses must require that all personnel immediately alert the business if they test positive for COVID-19 and were present in the workplace either:
    1. within the 48 hours before the onset of symptoms or within 10 days after onset of symptoms if they were symptomatic, or
    2. within 48 hours prior to the date on which they were tested or within 10 days after the date on which they were tested if they were asymptomatic.

If a business learns that any of its personnel have tested positive for COVID-19 and were at the workplace during the specified time frame, the business is required to report the positive case within 24 hours to the County Public Health Department at sccsafeworkplace.org.

Businesses must also comply with all case investigation and contact tracing measures directed by the County.

  1. Ascertainment of Vaccination Status: Businesses must ascertain the vaccination status of all personnel. Under the order, personnel includes employees, contractors, and volunteers. Until a person’s vaccination status is ascertained, they must be treated as not fully vaccinated.  Personnel who decline to provide vaccination status must also be treated as unvaccinated.

Businesses must complete their initial ascertainment of vaccination status for all personnel within 14 days of May 19, 2021, or no later than June 1, 2021.  Thereafter, businesses must obtain updated vaccination status for all personnel who were not fully vaccinated every 14 days (e.g., June 15, June 29, July 13, etc.).  Businesses must maintain appropriate records to demonstrate compliance with this provision.  The County has provided a template self-certification form for this purpose.

  1. Mandatory Rules for Personnel not Fully Vaccinated: Businesses must require all personnel who are not fully vaccinated to:
    1. comply with all applicable provisions of the Mandatory Directive on Use of Face Coverings, and
    2. comply with all applicable provisions of the Health Officer’s Mandatory Directive on Unvaccinated Personnel.

In announcing the new Order, the County’s Health Officer indicated additional changes will occur in conjunction with California’s “reopening” on June 15, 2021.  Dr. Cody predicted the future changes will even further differentiate between vaccinated and unvaccinated people.

Employers doing business in the County must act quickly to reconcile their new obligations under the Order with other California laws, chiefly the Fair Employment and Housing Act (“FEHA”), which is enforced by the state’s Department of Fair Employment and Housing (“DFEH”).  The DFEH previously issued guidance for employers that will assist in this endeavor.

Jackson Lewis continues to track COVID-19 compliance requirements for employers. If you have questions about the Santa Clara Order or related COVID-19 requirements contact a Jackson Lewis attorney to discuss.

As COVID-19-related litigation increases, courts are being called upon to interpret the scope of employers’ duties to protect their employees with relation to the virus.  Last week, a California federal judge dismissed a lawsuit brought by a spouse attempting to hold her husband’s employer liable for her COVID-19 infection.  The judge held that California’s worker’s compensation law barred the wife’s claim, noting that the employer’s duty to provide a safe work environment is limited to the employer’s employees.

In the matter of Corby and Robert Kuciemba vs. Victory Woodworks, Inc., Mr. and Mrs. Kuciemba both tested positive and were hospitalized with COVID-19. Though Mr. Kuciemba was no longer an employee of Victory Woodworks at the time he tested positive, he claimed that he contracted the virus from his former worksite and filed a claim for workers’ compensation. Mrs. Kuciemba also filed a lawsuit against Victory Woodworks on various negligence theories.

In February 2021, the California District Court granted Victory Woodworks’ motion to dismiss Mrs. Kuciemba’s case, citing that her claims were barred because worker’s compensation was the exclusive remedy for her claims.

Mrs. Kuciemba amended her Complaint, arguing that Victory Woodworks did not exercise ordinary care to prevent exposure to COVID-19, as a result of which, Mr. Kuciemba was exposed to the virus, and brought home the virus on his clothes and other personal items.  This legal concept of “take-home exposure” is common in asbestos litigation, and is founded on the idea that employers and premises owners have a duty to exercise ordinary care to prevent exposure to asbestos due to asbestos fibers being carried on workers’ clothing.

The District Court rejected Mrs. Kuciemba’s argument, finding that she failed to plead a plausible claim. Specifically, the Court found the employer’s duty was only to provide a safe workplace to its employees.  The Court found this duty did not extend to nonemployees who contract a viral infection away from the workplace.

While employers should continue to track and comply with federal, state, and local mandates, this ruling suggests that California employers do not need to implement special protections for, or otherwise owe duties to protect individuals who are not their employees from COVID-19.

Jackson Lewis continues to track COVID-19 related developments. If you have questions about COVID-19 workplace compliance contact a Jackson Lewis attorney to discuss.

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

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

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

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

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

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

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

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

Close Contact Instead of COVID-19 Exposure

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

Exposed Group Instead of Exposed Workplace

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

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

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

Notice Requirement

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

Physical Distancing

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

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

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

Face Coverings

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

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

Exclusion from Worksite

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

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

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

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

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

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

What Can Be Included

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

What Cannot Be Included

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

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

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

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

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

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

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

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

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

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