On September 29, 2022, California’s Governor signed Assembly Bill (AB) 2693, which amends and extends COVID-19 workplace notice requirements until January 1, 2024.

Under existing law adopted under AB 685, if an employer receives notice of potential exposure to COVID-19, the employer must provide written notice of the potential exposure within one business day to all employees who were at the worksite.  Originally, this notification requirement was set to expire on January 1, 2023.  AB 2693 extends this reporting requirement to January 1, 2024 and gives employers another option for complying with these notification requirements. 

As an alternative to providing written notice to employees, the employer may now prominently display a notice to alert employees to a potential COVID-19 exposure.  If an employer opts to use this notification route, it must comply with a series of technical requirements in the statute, including:

  • The notice must be displayed in all places where notices to employees concerning workplace rules or regulations are customarily posted.  If the employer posts workplace notices on an existing employee portal, this notice must also be posted on the employee portal. 
  • This notice must be posted within one business day from when the employer is notified of a potential COVID-19 exposure and must remain posted for not less than fifteen calendar days.
  • The notice must provide the following information:
  • The dates on which an employee, or employee of a subcontracted employer, with a confirmed case of COVID-19 was on the worksite premises within the infectious period;
  • The location of the exposures, including the department, floor, building, or other area (but this does not need to be so specific as to allow individual workers to be identified);
  • Contact information for employees to receive information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws, as well as antiretaliation and antidiscrimination protections of the employee; and
  • Contact information for employees to receive the cleaning and disinfection plan the employer is implementing. 

Additionally, the employer must keep a log of all dates the notice required by this section was posted at each worksite of the employer and must allow the Labor Commissioner to access these records.

If you have questions about the application of AB 2693 to your business or related workplace safety and health issues, please contact the authors of this blog, your Jackson Lewis attorney, or a member of our Workplace Safety and Health team.

California has extended COVID-19 Supplemental Paid Sick Leave (SPSL) through December 31, 2022. On September 29, 2022, California’s Governor signed Assembly Bill (AB) 152 which amends the existing SPSL law and provides for state grants to certain employers.  

Changes to Supplemental Paid Sick Leave

The previous version of SPSL was passed in February 2022 and required employers with 26 or more employees to provide additional paid leave for certain COVID-19-related reasons.  This law was scheduled to expire on September 30, 2022. 

Under existing law, full-time employees receive one bank of up to 40 hours of leave that can be used for a variety of qualifying reasons.  A full-time employee can receive an additional bank of 40 hours of leave if they test positive for COVID or are caring for a covered family member who tests positive, and they produce proof of that positive test result. Part-time employees receive pro-rated banks based on formulas specified in the law.  Existing law also allows an employer to require submission to a diagnostic test on or after the fifth day an employee reports testing positive for COVID-19.  

AB 152 amends the existing SPSL law to permit additional testing if an employee continues to test positive after taking any test required on or after the fifth day.  Under the amended law, an employer can require that the employee submit to a second diagnostic test that is taken no earlier than at least 24 hours after any positive result on a test taken on or after the fifth day. The amended law also provides that an employer has no obligation to provide additional paid leave if an employee refuses to comply with the employer’s required return to work diagnostic tests. 

AB 152 also extends the availability of SPSL to December 31, 2022.  While SPSL will now be available through the end of the year, AB 152 does not provide an additional bank of time to those employees who may have already exhausted their allotted SPSL for the year. 

Grants for Small Business and Non-Profits

AB 152 establishes the California Small Business and Nonprofit COVID-19 Relief Grant Program within the Governor’s Office of Business and Economic Development, also known as GO-Biz to assist qualified small businesses or nonprofits that are incurring costs for COVID-19 supplemental paid sick leave. The bill requires GO-Biz to provide grants to qualified small businesses or nonprofits. These provisions of the bill will expire on January 1, 2024.

As an urgency bill, AB 152 takes effect immediately.

If you have questions about COVID-19 Supplemental Paid Sick Leave or related issues, contact a Jackson Lewis attorney to discuss.

California passed Assembly Bill (AB) 2089, which amends the Confidentiality of Medical Information Act (CMIA) to include mental health application information under the definition of medical information. Under the revisions to CMIA, mental health application information is defined as information related to a consumer’s inferred or diagnosed mental health or substance use disorder, as defined in Section 1374.72 of the Health and Safety Code, collected by a mental health digital service.  Similarly, “mental health digital service” is defined as a mobile-based application or internet website that collects mental health application information from a consumer, markets itself as facilitating mental health services to a consumer, and uses the information to facilitate mental health services to a consumer.

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

On September 27, 2022, California Governor Gavin Newsom signed Senate Bill (SB) 1162, which requires certain employers to provide more pay transparency on pay scales and expands pay data reporting obligations for other employers. The new obligations take effect on January 1, 2023.

Pay Transparency

Previously, under California law, employers had to provide an applicant with the pay scale for a position upon reasonable request.  But beginning January 1, 2023, California employers with 15 or more employees must include in any job posting the pay scale for a position.

Before SB 1162, California employers did not have to disclose to current employees the pay ranges for any position.  But after SB 1162, California employers must provide current employees with the pay scale for their current position, when they ask.

Employers are also required to maintain records of a job title and wage rate history for each employee throughout the employment plus three years after the employment ends.

Pay Data Reporting

SB 1162 also expands the pay data reporting obligation.  Before SB 1162, employers with 100 or more employees had to submit a pay data report tabulating (A) the number of employees within each establishment (B) by race, ethnicity, and sex within each (C) job category (for example, Professionals, Technicians, Laborers, and Service Workers) (D) the number of employees within each of 12 specific pay band during the prior year.

Next year, employers with 100 or more employees will also have to:

  1. Submit a separate pay data report for employees hired through labor contractors (i.e., covering temporary staffing agencies) that also discloses the “ownership names of all labor contractors used to supply employees”; and
  2. Report the median and mean hourly rate for each combination of race, ethnicity, and sex for each job category for both traditional employees and those hired through labor contractors.

The first reporting deadline for these new pay data will be May 10, 2023. 

Under SB 1162, the California Civil Rights Department (CRD) may ask a court to impose a civil penalty of up to one hundred dollars ($100) per employee on any employer who fails to file the required reports.  For any subsequent failures, the CRD may request a civil penalty of up to two hundred dollars ($200) per employee.

Please contact a Jackson Lewis attorney with any questions on the new law.

1. What’s changing?

Under the current version of the California Consumer Privacy Act (“CCPA”), an employer’s obligations related to the personal information it collects from employees, applicants, and contractors residing in California (collectively, “Employment Information”) are relatively limited.  Specifically, it needs to (1) provide those individuals a “notice at collection” that discloses the categories of personal information the employer collects about them and the purposes for which that information is used, and (2) safeguard those individuals’ personal information against unauthorized access or acquisition.

Come January 1, 2023, however, those obligations will dramatically expand when California’s new comprehensive privacy law, the California Privacy Rights Act (“CPRA”), which amends the CCPA, takes effect. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AB 2188 takes effect on January 1, 2024.

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

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

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

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

Minimum Wage

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

Living Wage Ordinance

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

Paid Sick Leave

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

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

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

Family Friendly And Environment Friendly Workplace

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

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

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

Commuter Benefits

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

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

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

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

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

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

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

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

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