On December 16, 2021, Cal/OSHA’s Standards Board voted to readopt the Cal/OSHA COVID-19 Emergency Temporary Standards (Cal/OSHA ETS) with several revisions. And just a day later the U.S. Court of Appeals for the Sixth Circuit lifted the stay on the federal Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (federal ETS). The timing of these announcements has created some confusion, with many employers wondering if the two announcements are related. They are not.

It is important to keep in mind that the Cal/OSHA’s ETS is separate and distinct from the federal ETS.  The Cal/OSHA ETS was first adopted in November 2020, readopted with some changes in June 2021, and again readopted with more changes in December 2021.   The newest version of the Cal/OSHA ETS will go into effect on January 14, 2022, regardless of the litigation surrounding the federal ETS.

With respect to enforcement of the federal ETS in California, Cal/OSHA cannot enforce the federal ETS until it is formally adopted by the Cal/OSHA Standards Board. States like California, with their own OSHA-approved occupational safety and health plans (also known as State Plans), are required to adopt the federal ETS verbatim or adopt a version that is “at least as effective as” the federal ETS. While there is a specified timeline for adoption, it is not clear how the timeline is affected by the current litigation. However, to date, Cal/OSHA’s Standards Board has not announced a special meeting to discuss the adoption of the federal ETS or otherwise. Currently, the Board’s next meeting is scheduled for January 20, 2022, at which time the federal ETS’ future in California will be decided unless an emergency meeting is scheduled.

Regardless of the federal ETS’ status, California employers must continue to comply with the Cal/OSHA ETS and be mindful of the changes that will take effect on January 14, 2022.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards 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.

On December 16, 2021, Cal/OSHA’s Standards Board voted to readopt the Cal/OSHA COVID-19 Emergency Temporary Standards (ETS) with several revisions.  This amended readoption of the ETS will go into effect on January 14, 2022, and will remain in place until April 14, 2022.  Only one member of the seven-person Standards Board voted against it.

This vote comes on the heels of the California Department of Public Health (CDPH) issuing a state-wide face-covering requirement for indoor public settings and in the wake of uncertainty about the future of the federal COVID-19 Emergency Temporary Standards (federal ETS).

Cal/OSHA had released its proposed changes to the ETS for readoption in October 2021 but delayed the vote. With the expiration of the current version coming in January, however, they could not wait any longer. Prior to voting, the Board confirmed with staff that updated FAQs were already in development, though no date was provided for when they would be published.

Here is an overview of some of the significant changes:

Face Coverings

Though state and local guidance regarding face coverings has fluctuated since June 2021, the ETS guidance will remain mostly the same.

Notably, cloth face coverings must now pass the “light test.”  To qualify as a face covering under the revised ETS, a cloth face covering may not let light pass through it when held up to a light source.

Additionally, both vaccinated and unvaccinated employees must wear face-coverings during screening.

Exclusion from Worksite

Consistent with the current ETS, employers must still exclude employees who are positive for COVID-19 until return-to-work requirements are met. Employers also must exclude employees who have had close contact with a positive individual unless the employee is fully vaccinated and asymptomatic.

Under the current version of the ETS, employees who have a close contact but are fully vaccinated and remain asymptomatic don’t need to be excluded from the workplace. Effective January 14, 2022, these employees must now wear a face-covering in the workplace for 14 days and maintain social distance for 14 days.

Return-to-Work Criteria

Under this new readoption, persons who had close contact, but never developed COVID-19 symptoms may return to work after 14 days have passed since the last known close contact.  However, the employee who had the close contact is permitted to return early under the following scenarios:

  1. 10 days after the close contact if the employee wears a face covering and maintains 6 feet of separation from others for 14 days.
  2. 7 days after the close contact if the person tested negative for COVID-19 using a COVID-19 test with the specimen taken at least five days after the last known close contact; and the person wears a face covering and maintains six feet of distance from others while at the workplace for 14 days following the last date of close contact.

The return-to-work criteria for COVID-19 cases with and without symptoms and close contacts who develop symptoms remain unchanged.

The readoption also removes the return-to-work exemptions for essential critical infrastructure during staffing shortages.

Outbreaks and Testing

Under the June 2021 version of the ETS, employers are not required to provide COVID-19 testing to fully vaccinated, asymptomatic employees who have come into close contact with a COVID-19 positive individual or in an outbreak setting. An outbreak under the ETS is defined as three or more employees testing positive for COVID-19 within an exposed group during a 14-day period.

This newest version of the ETS removes this distinction between vaccinated and unvaccinated employees with respect to testing.  Under the amended version of the ETS, employers must also make COVID-19 testing available at no cost, during paid time, to fully vaccinated, asymptomatic employees who have had close contact or during an outbreak.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards 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.

Less than 24 hours after the California Department of Public Health’s (CDPH) new mask mandate went into effect, the CDPH updated its guidance to clarify the application of the mandate. Previously, the mandate by the CDPH referenced “indoor public settings” without further definition. In the updated guidance, the CDPH clarifies that “the guidance applies to all workplaces, regardless of whether they serve the public, or are open to the public.  Masks may be removed, per the exemption noted below, if the workplace consists of a single employee, or may be removed while an employee is alone in a closed office or room.”

Cal/OSHA also updated its FAQ for the COVID-19 Emergency Temporary Standard (ETS) to state that the ETS requires that employers “provide face coverings and ensure they are worn by employees when required by orders of the California Department of Public Health (CDPH). (8 CCR § 3205(c)(6)(B).) The December 13, 2021 CDPH guidance is such an order.”

Employers should continue to monitor local health departments, the California Department of Public Health, and Cal/OSHA for changes to COVID-19 workplace requirements. Employers can check Jackson Lewis’ COVID-19 Advisor for updates on workplace requirements in California and around the country.

If you have questions about COVID-19 workplace requirements or related issues, contact a Jackson Lewis attorney to discuss.

California has been working its way up to a $15.00 minimum wage for all employees for several years.  As of January 1, 2023, all California employers will be required to pay their employees a minimum wage of $15.00.  However, a ballot measure recently filed with the State proposes increasing the minimum wage even further to $18.00 by 2026.

California has a unique process by which California citizens can propose laws and constitutional amendments without the support of the Governor or the Legislature.  Most recently, this process was used to allow app-based rideshare and delivery companies to hire drivers as independent contractors through the passage of Proposition 22.  This process is now being used to propose the “Living Wage Act of 2022,” which if passed would gradually increase the State’s minimum wage to $18.00 in 2026.

The Living Wage Act of 2022 proposes to continue the State’s stair-step increase of the minimum wage as follows:

Year

Employers with 25 or fewer employees

 

 Employers with 26 or more employees
2023 $15.00 per hour $16.00 per hour
2024 $16.00 per hour $17.00 per hour
2025 $17.00 per hour $18.00 per hour
2026 $18.00 per hour

Pursuant to the proposed initiative, after reaching $18.00 in 2026, the minimum wage would then be adjusted upwards annually to keep pace with the cost of living.

However, the Living Wage Act of 2022 has not yet cleared all hurdles it needs to make it onto the ballot in November 2022.  To qualify to be on the ballot, supporters of the initiative must collect the signatures of registered voters and complete a verification process.  Public comments on the initiative may also be submitted on the Office of the Attorney General’s website and will be reviewed.

Jackson Lewis continues to track legislation, regulations, and ballot measures affecting employers. If you have questions about minimum wage compliance or related issues, contact a Jackson Lewis attorney to discuss.

Only a month ago, Los Angeles and the Bay Area released criteria for lifting masking requirements that had been in place since the summer. However, with recent increases in COVID-19 cases, California’s Department of Public Health (CDPH) issued a new mandate requiring masks to be worn in all indoor public settings irrespective of vaccine status, effective December 15, 2021 through January 15, 2022.

The CDPH order is vague as to the meaning of “indoor public setting.” However, the CDPH Face Covering Q&A page, indicates certain exemptions to “universal masking” suggesting a broad definition of “indoor public setting” as has been the case with prior county and state orders.

The following are exemptions to indoor masking:

  • Masks may be removed while actively eating or drinking.
  • Persons who are working alone in a closed office or room.
  • Persons who are actively performing at indoor live or recorded settings or events such as music, acting, or singing. If performers do not wear a mask indoors while performing, CDPH strongly recommends that individuals undergo screening testing at least once weekly. An FDA-approved antigen test, PCR test, or pooled PCR test is acceptable for evaluation of an individual’s COVID-19 status.
  • Persons who are obtaining a medical or cosmetic service involving the nose or face for which temporary removal of the face-covering is necessary to perform the services.
  • Workers who wear respiratory protection, per Cal/OSHA requirements.
  • Persons who are specifically exempted from wearing masks by other CDPH guidance.

The CDPH also issued updated requirements for attending mega-events, like concerts and sporting events, mandating proof of vaccination or a negative antigen COVID-19 test.

Employers should continue to monitor local health departments, the California Department of Public Health, and Cal/OSHA for changes to COVID-19 workplace requirements. Employers can check Jackson Lewis’ COVID-19 Advisor for updates in workplace requirements in California and around the country.

If you have questions about COVID-19 workplace requirements or related issues, contact a Jackson Lewis attorney to discuss.

Under California’s Private Attorneys General Act (PAGA), an “aggrieved employee” may bring a representative action on behalf of him or herself and other “aggrieved employees” for civil penalties for various violations of the California Labor Code. (Labor Code §§2698, et seq.)  PAGA cases have become increasingly more frequent for various reasons, including the fact that PAGA claims cannot currently be compelled to arbitration.

Several business organizations joined together in October 2021 to file a proposed proposition with the California Attorney General entitled “Californians For Fair Pay and Employer Accountability Act”, which seeks to repeal PAGA.  California’s Secretary of State recently approved the circulation of the PAGA reform petition for signatures. Supporters of the initiative have until June 6, 2022, to collect at least 623, 212 valid signatures to qualify the measure for the November 2022 general election. Assuming all required signatures are valid, the Proposition would be voted upon by the general public in November 2022.

If approved by California voters, the Proposition would repeal PAGA and eliminate the Labor Commissioner’s authority to contract with private organizations or attorneys to assist with enforcement actions.  Instead, the proposition proposes that the California Legislature provide funding for the Labor Commissioner to enforce Labor Code violations. Moreover, the California Labor Commissioner would be required to provide pre-enforcement advice and allow employers to cure alleged violations without penalties. However, the petition also proposes increased penalties for willful violations of the Labor Code.

Jackson Lewis continues to track legislation and changes in California employment law affecting employers. If you have questions about the proposed reforms to PAGA or related issues, please contact a Jackson Lewis attorney to discuss.

The federal OSHA COVID-19 Emergency Temporary Standard (ETS) is currently paused while the Sixth Circuit decides its fate.  Similarly, Cal/OSHA had previously postponed its discussions of changes to the state’s COVID-19 ETS to see what would happen with OSHA.

However, time is starting to tick on the current Cal/OSHA ETS, which expires on January 14, 2022. As such, the readoption of the Cal/OSHA ETS is back on the agenda for the Standards Board meeting for December 16, 2021.

The Standards Board was previously scheduled to consider revision and readoption of the ETS in October and released the proposed changes at that time.

However, the proposal posted for the December meeting does include a few minor revisions to the definitions in the ETS including COVID-19 test and face coverings.

The definition of COVID-19 test under the requirements includes self-administered tests, but such tests must either be observed by the employer or an authorized telehealth proctor.

The definition of a face covering is also more detailed stating a face-covering includes:

  • surgical masks
  • medical procedure masks
  • respirators worn voluntarily
  • tightly woven fabric or non-woven material of at least two layers that completely covers the nose and mouth and is secured to the head with ties, ear loops, or elastic bands that go behind the heads.
  • gaiters that have two layers of fabric or are folded to make two layers.

Otherwise, the proposed changes to Cal/OSHA’s ETS are the same as proposed in October including revisions regarding exclusion from the worksite and return to work criteria.

If approved, the revisions to the ETS would go into effect on January 14, 2022, and remain in effect until April 14, 2022.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA emergency temporary standards 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.

Recently, the 9th Circuit applied, in an unpublished opinion, the U.S. Supreme Court’s broad definition of minister for purposes of the “ministerial exception.” Under the ministerial exception, religious institutions have a First Amendment right “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”

The Supreme Court has broadly defined what employment positions are eligible for the application of the exception. In determining whether employees at religious schools are ministers, the Supreme Court has explained that the core consideration is their “role in conveying the Church’s message and carrying out its mission.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2063 (2020) (citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 192 (2012)). “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” Id., at 2064.

The 9th Circuit in Orr v. Christian Brothers High School, Inc. held the plaintiff qualified as a minister for purposes of the ministerial exception, focusing on the employee’s role in conveying the Church’s message and carrying out its mission. The court reasoned that the plaintiff participated in religious services and activities, aiding the school in developing a faith-based community and inculcating faith-based teachings. He had supervisory authority over aspects of religious instruction and programming. He also received religious education as part of his role. The court held that based on the U.S. Supreme Court’s formulation, the plaintiff qualified as a minister under the ministerial exception.

In this case, while the plaintiff made harassment claims that could be deemed to survive the ministerial exception, the 9th Circuit held that the allegations were “so intertwined with the employment decisions that the claims cannot be separated.”

The 9th Circuit also upheld the district court’s finding that the religious school did not waive its statutory exemption under the California Fair Employment and Housing Act (FEHA) for non-profit religious corporations. The court pointed out that the school’s employee handbook never explicitly referenced FEHA and makes no promises it is bound by FEHA.

The case is a good reminder for non-profit religious employers both in protections for employment decisions but also in reviewing employee handbooks to ensure statutory exemptions are appropriately protected.

If you have questions about the application of employment law regulations to religious employers or related issues, contact a Jackson Lewis attorney to discuss.

At the start of 2021, California’s family and medical leave law, the California Family Rights Act (CFRA), expanded its coverage to apply to smaller employers—from employers with 50 or more employees to those with just 5 or more employees.  More recently, during the 2021 legislative session, California’s governor signed legislation to add “parent-in-laws” under the coverage of care for a family member.

Due to the continued expansion of CFRA, employers with California employees should refresh themselves with the basics as there are significant differences from the federal Family Medical Leave Act (FMLA).

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

Most employees in San Francisco (and throughout California)  receive one hour of paid sick leave for every 30 hours worked.  The San Francisco Board of Supervisors is now considering an ordinance that would broaden the availability of paid sick leave to domestic workers by establishing a “portable” paid sick leave system.

The “Domestic Workers’ Equal Access to Paid Sick Leave Through a Portable System” ordinance would require any employer of domestic workers, including individual households, to provide their workers with paid time off through a portable benefits system.

Under the current version of the proposed ordinance, a domestic worker includes an individual who provides labor or services in a residence caring for a child; serving as a companion, or providing other non-medical care or services for a sick, convalescing, disabled, or senior person; cleaning, cooking, providing food or butler service, gardening, personal organizing, or performing other in-home personal or domestic service. A domestic worker also includes an individual who as part of their employment or contract resides in the personal residence of the hiring entity.

A “hiring entity” is defined as any person who directly or indirectly or through an agent or any other person, including through the services of a temporary service or staffing agency contracts with or hires a domestic worker.

Under the proposal, a hiring entity shall without regard to the employment classification of the domestic worker, provide paid sick leave funds. The domestic worker would then accrue a right to paid sick leave in a manner similar to other employees, i.e. not less than one hour of net pay, at the worker’s regular rate of pay, for every 30 hours of work for the hiring entities.

The right to paid sick leave would accrue in hour-unit increments, but the funds would not be transferred from the hiring entity to the domestic worker until the domestic worker requests the paid sick leave funds. The hiring entity would be responsible for any tax withholding or tax reporting obligations for the contribution at the time the paid sick leave funds are transferred. Hiring entities may not interfere with or deny the exercise of any right protected under this new ordinance, nor may they take any adverse action against any domestic worker who exercises their right protected under this new ordinance.

If passed, the San Francisco Office of Economic and Workforce Development would be tasked with developing and administering the portable paid sick leave system in an effort to minimize administrative burdens for the hiring entity and domestic worker. The system will track each covered worker’s hours worked for a hiring entity and net pay rates and calculate the accrued right to paid sick leave funds. The system will also coordinate the transfer of funds from one or more hiring entities from which the right to paid leave has accrued.

The ordinance would not be operative until sometime in 2022 if passed.

If you have questions about this proposed ordinance or issues related to paid sick leave requirements contact a Jackson Lewis attorney to discuss.