Previously, the California Department of Public Health (CDPH) had redefined “close contact’ as someone sharing the same indoor airspace with a person who had COVID-19 for a cumulative total of 15 minutes or more over a 24-hour period. This definition had caused issues for employers in particular who needed to comply with notice requirements. These notice requirements were recently extended until 2024.

In order to allow businesses to better respond to potential exposures, the CDPH revised its definition of close contact to set clearer parameters. Under the revision “close contact” is defined as the following:

  • In indoor spaces 400,000 or fewer cubic feet per floor (such as home, clinic waiting room, airplane, etc.), a close contact is defined as sharing the same indoor airspace for a cumulative total of 15 minutes or more over a 24-hour period (for example, three separate 5-minute exposures for a total of 15 minutes) during an infected person’s (confirmed by COVID-19 test or clinical diagnosis) infectious period.
  • In large indoor spaces greater than 400,000 cubic feet per floor (such as open-floor-plan offices, warehouses, large retail stores, manufacturing, or food processing facilities), a close contact is defined as being within 6 feet of the infected person for a cumulative total of 15 minutes or more over a 24-hour period during the infected person’s infectious period.

The CDPH revision also clarifies that spaces that are separated by floor-to-ceiling walls e.g. offices, suites, and waiting rooms are considered distinct indoor airspaces for purposes of close contact.

The CDPH also published a Questions and Answers for Beyond the Blueprint which explains the difference between direct and indirect exposure as well as how healthcare facilities should respond to potential exposure when using the updated definition.

Employers should review the revised definition as it applies to notice requirements to employees who may have been exposed.

If you have questions about the effect of the CDPH revisions or related issues, contact a Jackson Lewis attorney to discuss.

As part of the recent legislative session, Governor Newsom signed Assembly Bill (AB) 1775, which implements new workplace safety training and certification requirements for entertainment events vendors who produce live events at public events venues. 

Specifically, any business that contracts with the entertainment events vendor to set up, operate, or tear down a live event at a public events venue must require the vendor to certify in writing, for its employees and the employees of any subcontractors, the following:

(1) All employees involved in setting up, operating, or tearing down the live event at the venue have completed the Cal/OSHA-10, the OSHA-10/General Entertainment Safety training, or the OSHA-10 as applicable to their occupation. These are 10-hour training courses developed by Cal/OSHA and federal OSHA pertaining to workplace safety.

(2) Additionally, the vendor must certify one of the following:

  • All department heads and leads have completed the Cal/OSHA-30, the OSHA-30/General Entertainment Safety training, or the OSHA-30, and are certified through the Entertainment Technician Certification Program relevant to the task(s) they are supervising or performing, or another certification program.
  • Alternatively, the vendor can certify that its employees and any subcontractors’ employees meet the conditions for a skilled and trained workforce as that term is defined in Section 2601 of the Public Contract Code.

For purposes of these additional requirements, a “public events venue” means a state-operated fairground, county fairground, state park, California State University, University of California, or auxiliary organization-run facility that hosts live events.

The Division of Occupational Safety and Health is authorized to enforce these requirements by issuing a citation and civil penalty, subject to appeal.  Nothing in AB 1775 relieves an employer from conducting any other training required by Cal/OSHA and complying with any other occupational safety and health law requirements.

If you have questions about compliance with AB 1775 or related issues please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

In June, San Francisco voters approved Proposition G, which created the Public Health Emergency Leave Ordinance (PHELO). The ordinance requires private employers to provide paid leave to employees for “public health emergencies.” The ordinance took effect on October 1, 2022. In conjunction with the effective date, San Francisco’s Office of Labor Standards Enforcement (OLSE) issued a Frequently Asked Questions page to assist with the application of the new law.

The FAQs cover topics including:

  • Scope of the Ordinance
  • Amount of Leave
  • Use of Leave
  • Payment for Leave
  • Notice and Posting
  • Employer Records

Scope of the Ordinance

PHELO applies to employers with 100 or more employees worldwide. The OLSE states that if the number of employees fluctuates above and below 100 in the course of a year, employers should calculate business size based on “the average number of employees per pay period during the preceding calendar year.”

The FAQs also clarify that employees who work at San Francisco International Airport (SFO) are not covered by the ordinance as it is outside the geographic boundaries of San Francisco.

Amount of Leave

The FAQs specify the calculation of leave for employees as follows:

  • Full-time regular or fixed schedule employees are entitled to the number of hours over a one-week period that the employee regularly works, not to exceed 40 hours through December 31, 2022. As of January 1, 2023, such employees should get the number of hours the employee would work in a two-week period, not to exceed 80 hours.
  • Part-time employees or variable hours employees are entitled to the number of hours equal to the average number of hours over a one-week period that the employee was scheduled over the previous calendar year through December 31, 2022. As of January 1, 2023, such employees would be entitled to the average number of hours over a two-week period worked during the previous calendar year.

Clarification of Interaction with COVID-19 SPSL

The OLSE also clarifies in the FAQs the interaction between PHELO and statewide COVID-19 Supplemental Paid Sick leave (SPSL) stating that employers that provide SPSL are permitted to offset that leave from the required PHELO entitlement e.g. the amount of PHELO that an employer must provide is reduced for every hour of SPSL that the employee takes after October 1, 2022.  

Use of Leave

The FAQs state that an employer may require a doctor’s note or other documentation to confirm an employee’s status as a member of a vulnerable population for purposes of using the leave. However, an employer may not otherwise require the disclosure of health information for an employee to use PHELO.

Payment of Leave

The FAQs clarify that PHELO is to be compensated in the same manner as paid sick leave, which provides two options for non-exempt employees e.g. regular rate of pay for the workweek the leave is used or by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.

For exempt employees, PHELO pay must be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

Notice and Posting

The OLSE specifies that employers must post a notice informing employees of their rights under the ordinance. To that end, the OSLE has published a notice available on its website.

Employer Records

As to recordkeeping requirements, employers must retain records documenting hours worked by employees and Public Health Emergency Leave taken by employees, for a period of four years.

If you have questions about compliance with San Francisco’s Public Health Emergency Leave Ordinance or related issues, contact a Jackson Lewis attorney to discuss.

At the end of the California legislative session, Governor Newsom signed a myriad of employment law bills, including Assembly Bill (AB) 2243, which requires Cal/OSHA to submit to the Occupational Safety and Health Standards Board a proposal to consider revising the heat illness standard and the wildfire smoke standard for farm workers to reduce the Air Quality Index (AQI) for PM2.5 to 301 or greater for the provision of respiratory protective equipment.

Under AB 2243, Cal/OSHA must submit to the board a rulemaking proposal before December 1, 2025. The bill was strongly opposed and remains controversial because it circumvents the normal rulemaking process.

These revisions come at a time when Cal/OSHA is considering an Indoor Heat Safety Standard and already has robust heat illness and wildfire smoke standards.  

Jackson Lewis will continue to monitor changes to workplace safety requirements and follow the rulemaking process as it proceeds.

If you have questions about the Heat Illness Prevention requirements or the Wildfire Smoke Standard, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

After vetoing a similar bill last year, on September 30, 2022, California Governor Newsom signed Senate Bill (SB) 951, which increases wage replacement rates for lower wage earners under the state Paid Family Leave program (PFL) and State Disability Insurance (SDI) programs.

Starting in 2025, workers who earn 70 percent or less than the state’s average wage would be eligible for 90 percent of their regular wages under the PFL and SDI programs. Currently, low-wage earners may be eligible for 70 percent of their regular wages under the programs.

Though PFL and SDI are state benefits, employees can apply for the benefits while on unpaid leaves, such as under the California Family Rights Act (CFRA) and Family Medical Leave Act (FMLA). As such, this increase in the state benefits formula may make unpaid leaves for lower wage earners more palatable as it will mean a less significant loss of income.

Earlier this year, California also started a grant program to assist small businesses with the costs associated with employees on leave under the Paid Family Leave program, e.g., expenses incurred in training existing staff or hiring temporary employees during employee leaves.

If you have questions about SB 951, Paid Family Leave, or related issues, contact a Jackson Lewis attorney to discuss.

Read more about the new laws affecting employers in California.

California Expands Who an Employee Can Care for Under the CFRA and California Paid Sick Leave Law

California Prohibits Retaliation Against Employees for Refusal to Report to Work During Emergency Conditions

Bereavement Leave Now Protected in California

California Passes New Requirements for Call Center Employers

COVID-19 Employee Notice Requirements Revamped and Extended Until 2024

Beginning January 1, 2023, employees throughout California will be able to use sick leave or take leave under the California Family Rights Act (CFRA) to care for a “designated person.”  Under Assembly Bill (AB) 1041, a designated person is defined as any individual related by blood or whose association with the employee is equivalent to a family relationship. An employee can designate this person at the time they request leave.  An employer can limit an employee to one person in a 12-month period as the employee’s designated person. 

Employers with employees working in locales with local paid sick leave ordinances will need to evaluate the need for revisions to policies and procedures. Some local paid sick ordinances already allow the use of sick leave to care for a designated person and provide a process for making such designations.   

If you have questions about the application of AB 1041 or related issues, contact a Jackson Lewis attorney to discuss.

On September 29,2022, California’s Governor Gavin Newsom signed Senate Bill (SB) 1044, which prohibits an employer in the event of an emergency condition from taking or threatening adverse action against any employee for refusing to report to, or leave a workplace or worksite within the affected areas because the employee has a reasonable belief that the workplace or worksite is unsafe.

SB 1044 also prohibits an employer from preventing any employee, including employees of public entities from accessing the employee’s mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety.

SB 1044 requires an employee to notify the employer of the emergency condition requiring the employee to leave or refuse to report to the workplace or worksite. The bill clarifies that these provisions are not intended to apply when emergency conditions that pose an imminent and ongoing risk of harm to the workplace, the worksite, the worker, or the worker’s home have ceased.

Definition of Emergency Condition

An emergency condition is defined as either of the following:

  • Conditions of disaster or extreme peril to the safety of persons or property caused by natural forces or a criminal act.
  • An order to evacuate a workplace, worksite, or worker’s home, or the school of a worker’s child due to a natural disaster or a criminal act.

The bill specifies that an emergency condition does not include a health pandemic.

Definition of a Reasonable Belief

A reasonable belief that the workplace or worksite is unsafe means that a reasonable person, under the circumstances known to the employee at the time, would conclude there is a real danger of death or serious injury if that person enters or remains on the premises. The existence of any health and safety regulations specific to the emergency condition and an employer’s compliance or noncompliance with those regulations shall be a relevant factor if this information is known to the employee at the time of the emergency condition or if the employee received training on the health and safety regulations mandated by law specific to the emergency condition.

Notably, SB 1044 does not apply to the following:

  • First responders.
  • Disaster service workers.
  • An employee who is required by law to render aid or remain on the premises in case of an emergency.
  • An employee or contractor of a health care facility who provides direct patient care and provides services supporting patient care operations during an emergency or is required by law or policy to participate in emergency response or evacuation.
  • An employee of a private entity that contracts with the state or any city, county, or political subdivision of the state, including a special district, for purposes of providing or aiding in emergency services.
  • An employee working on a military base or in the defense industrial base sector.
  • An employee performing essential work on nuclear reactors or nuclear materials or waste.
  • An employee of a company providing utility, communications, energy, or roadside assistance while the employee is actively engaged in or is being called upon to aid in emergency response, including maintaining public access to services such as energy and water during the emergency.
  • An employee of a licensed residential care facility.
  • An employee of a depository institution.
  • A transportation employee participating directly in emergency evacuations during an active evacuation.
  • An employee of certain privately contracted private fire prevention resources.
  • An employee whose primary duties include assisting members of the public to evacuate in case of an emergency.

SB 1044 takes effect on January 1, 2023.

If you have questions about SB 1044, or related issues contact a Jackson Lewis attorney to discuss.

On September 29, 2022, California Governor Gavin Newsom signed Assembly Bill (AB) 1949, which amends the California Family Rights Act (CFRA) to require covered employers to provide eligible employees with 5 days of bereavement leave.

AB 1949 applies to employers with 5 or more employees nationwide. Under the bill, employees who have been employed at least 30 days before the leave may take 5 days of bereavement leave for the death of a family member. A family member is defined as including:

  • A spouse
  • A domestic partner
  • A child
  • A parent
  • A parent-in-law
  • A sibling
  • A grandparent
  • A grandchild

Bereavement leave is unpaid generally unless the employer has an existing policy that provides for paid leave or if the employee has accrued leave, including vacation time or sick leave that they elect to use.

Employers are permitted to request documentation of the death of the family member, which can include a death certificate, a published obituary, or a written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution or government agency.

Under the new legislation, employers are required to maintain the confidentiality of any employees requesting bereavement leave.

While AB 1949 amends the CFRA, the leave is separate from other leave offered to employees for their serious illness or to care for another with a serious illness.

This bill does not apply to an employee covered by a collective bargaining agreement if the agreement expressly provides:  (1) for bereavement leave equivalent to that required by the bill; (2) for the wages, hours of work, and working conditions of the employees; and (3) for premium wage rates for all overtime hours worked, where applicable, and a regular hourly rate of pay for those employees of not less than 30 percent above the state minimum wage.

AB 1949 takes effect on January 1, 2023.

If you have questions about the application of AB 1949 or related issues, please contact a Jackson Lewis attorney to discuss.

On September 29, 2022, California passed Assembly Bill (AB) 1601, which requires an employer of customer service employees in a call center to comply with the California Worker Adjustment and Retraining Act (Cal/WARN) requirements prior to a mass layoff, relocation, or termination of employees. Under this bill, a call center employer is prohibited from ordering a relocation of its call center, or one or more of its facilities or operating units within a call center, unless the employer complies with the notice requirements.

Under the new law, “call centers” are defined as a facility or other operation where workers, as their primary function, receive telephone calls or other electronic communication for the purpose of providing customer service or other related functions. Also under the new law, “relocation of a call center” includes when the employer intends to move its call center, or one or more facilities or operating units within a call center to a foreign country.

The new law applies to employers who are defined as covered establishments under Cal/WARN, which includes an industrial or commercial facility that employs or has employed within the preceding 12 months, 75 or more persons, and operate a call center.

AB 1601 also requires the Employment Development Department (EDD) to compile and publish a list of employers that provide notice of relocation.

Employers on the list or should be on the list but failed to provide notice would be ineligible to be awarded or to have renewed state grants or state-guaranteed loans for five years after the date the list is published. Such employers would also be ineligible to claim tax credits for five taxable years as of the date the list is published unless ineligibility is waived by the commissioner for specified reasons.

The law is effective January 1, 2023.

If you have questions about the application of AB 1601 or related issues, please contact the Jackson Lewis attorney with whom you regularly work.