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.

Due to a rise in transmission of the Delta variant causing a rapid increase in COVID-19 cases in California, the California Department of Public Health (CDPH) issued a new order to help prevent the spread of COVID-19 in hospitals, high-risk congregate settings, and other health care settings.

The order takes effect on August 9, 2021, and states that all covered facilities must be in full compliance by August 23, 2021.

The order applies to the following types of facilities:

  • Acute health care and long-term care settings, including:
    • General Acute Care Hospitals
    • Skilled Nursing Facilities (including Subacute Facilities)
    • Intermediate Care Facilities
  • High-risk congregate settings, including:
    • Adult and Senior Care Facilities
    • Homeless Shelters
    • State and Local Correctional Facilities and Detention Centers
  • Other health care settings, including:
    • Acute Psychiatric Hospitals
    • Adult Day Health Care Centers
    • Adult Day Programs Licensed by the California Department of Social Services
    • 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
    • Dental Offices
    • Dialysis Centers
    • Hospice Facilities
    • Pediatric Day Health and Respite Care Facilities
    • Residential Substance Use Treatment and Mental Health Treatment Facilities

The order requires covered facilities to verify the vaccination status of all workers and have a plan in place for tracking verified worker vaccination status.

The order also mandates COVID-19 testing requirements for those employees who are unvaccinated or incompletely vaccinated. The testing requirements set forth in the order are based on the type of facility where the employee works.

The order also sets forth mask and respirator requirements for covered facilities.

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.

When does the statute of limitations period begin to run on a harassment claim?  The California Supreme Court has ruled in Pollock v. Tri-Modal Distribution Services, Inc. that the time to file a cause of action for failure to promote brought under the harassment provision of the Fair Employment and Housing Act (“FEHA”) starts to run when the employee knows or reasonably should know of the employer’s allegedly unlawful refusal to promote the employee.

Plaintiff, Pamela Pollock (“Pollock”) is a customer service representative for the defendant, Tri-Modal Distribution Services, Inc. (“Tri-Modal”). She alleges that her employer passed her over for several promotions in part because she refused a sexual relationship with Michael Kelso, the executive vice-president of Tri-Modal. Pollock’s administrative complaint challenged the promotion of several individuals, but the appeal to the California Supreme Court concerned the promotion of an individual named Leticia Gonzalez (“Gonzalez”) in particular. Gonzalez was offered the promotion in March 2017, and it became effective May 2017.

The record on appeal did not disclose when Pollock became aware of Gonzalez’s promotion.

The dates are critical.  Pollock filed her administrative complaint in April 2018, when the Government Code required litigants seeking relief under FEHA to file an administrative complaint within one year “from the date upon which the alleged unlawful practice…occurred.” Pollock contended that the statute of limitations began to run in May 2017, when the promotion took effect, while Defendant argued that the statute of limitations began to run in March 2017, when Pollock was denied the promotion.  The trial court and Court of Appeal held that Pollock’s claim was filed late, based upon the date the promotion was offered to Gonzalez, instead of Pollock. The California Supreme Court disagreed, and found that neither party was correct.

The Court noted that the purpose of the FEHA statute of limitations  is “to promote the resolution of potentially meritorious claims on the merits.”  The Court found the limitations period to file an administrative complaint based on failure to promote does not begin to run until an aggrieved employee knows or reasonably should know of the employer’s decision not to promote them, indicating “what starts the clock is the employee’s actual or constructive knowledge of the employer’s decision.”  This approach, the Court stated, “protect[s] defendants from the necessity of defending stale claims and require[s] plaintiffs to pursue their claims diligently.”

No decision was made on whether Pollock’s claim was time-barred. It was sent back to the superior court for further proceedings.

If you have questions about handling failure to promote claims, claims of harassment or retaliation, or related issues, contact a Jackson Lewis attorney to discuss.

California employers should review their employment background check procedures in light of recent developments. The California Court of Appeal recently ruled in All of Us or None of Us v. Hamrick that an individual’s date of birth and driver’s license number cannot be used as data identifying a criminal defendant in public records.  The ruling will, if upheld, affect employers and third-party consumer reporting agencies when conducting background checks on applicants or employees.

The case centers around a California Rule of Court which specifies how electronic trial court records are made available to the public. Rule 2.503 (b) requires that the trial courts that maintain an electronic index must provide remote electronic access to “indexes in all cases” to the extent feasible to do so. Rule 2.503 also specifies what must be excluded from such indexes, including two pieces of information at issue in the case, date of birth and driver’s license number.

Plaintiff – a civil rights organization for formerly and currently incarcerated individuals – filed a complaint because Riverside Superior Court’s website allowed access to court records and data linked to a criminal defendant by inputting a person’s date of birth or driver’s license number. However, an individual would have to know the person’s date of birth or driver’s license already in order to access the information.

At the trial level, the court granted a demurrer as to Plaintiff’s allegations finding that the website did not violate the Rules of Court. However, the California Court of Appeal reversed, holding the Rules of Court prohibit allowing the public to search an electronic index by inputting an individual’s known date of birth or driver’s license.

The California Court of Appeal stated:

After considering the text, history, and purpose of Rule 2.507 [(Electronic access to court calendars, indexes, and registers of actions)], we agree that the rule prohibits the Riverside Superior Court from allowing searches of its electronic criminal index by use of an individual’s date of birth or driver’s license number. We further conclude that the trial court erred in sustaining defendants’ demurrer to this cause of action.

While currently only directly affecting Riverside County, the ruling by the Court of Appeal has already encouraged other courts in California to remove the date of birth information from criminal records. A diverse group of trade associations and businesses have signed on to an amicus letter to the California Supreme Court asking to reverse the decision.

This change in how criminal records are made accessible by courts could pose difficulties for employers and applicants/employees. In particular, employers who are required to conduct criminal background checks will have less reliable information in determining if an applicant or employee must be disqualified from a position. And similarly troubling, employees and applicants may have a greater risk of mistaken identity in which criminal history appears in their background check information that does not belong to them. While such mistakes may be resolved when the employer provides notice of the disqualifying conviction via the process outlined in state and federal background check requirements, it will also cause undue stress. It may also make disproving that a conviction belongs to an employee or applicant more difficult to rebut without the ability to cross-reference with identifying information such as a driver’s license number.

As this change unfolds across California, employers should carefully review background checks and continue to follow the process of individualized assessment and notice required by state, federal, and local ordinances when assessing if an employee or applicant should be disqualified from a position.

If you have questions about employment criminal background checks or related issues, please contact a Jackson Lewis attorney to discuss.

On June 17th the Cal/OSHA Standards Board passed amended COVID-19 Emergency Temporary Standards, which were intended to bring consistency between the California Department of Public Health mask guidance and Cal-OSHA’s workplace requirements.

However, since the passage of the amendments, several counties, including Los Angeles County, have seen a rise in COVID-19 cases. In response, the Los Angeles County Public Health Department (LADPH) issued a revised order that went into effect on July 17, 2021. This followed a “strong recommendation” that all individuals wear masks indoors that was issued by the LADPH in late June.

Under the new order, everyone must wear a mask, regardless of vaccination status in the following situations:

  • In all public settings, venues, gatherings, and businesses in Los Angeles County
  • On planes, trains, buses, ferries, taxis and ride-shares, and all other forms of public transport
  • In transportation hubs like airports, bus terminals, train stations, marinas, seaports and other ports, subway stations, or any other area that provides transportation
  • Healthcare settings, including long-term care facilities.
  • State and local correctional facilities and detention centers
  • Shelters and cooling centers
  • Indoor at any youth-serving facility (such as K-12 schools, childcare, day camps, etc.)
  • In any outdoor location where it is the policy of the business or venue.

Individuals, businesses, venue operators or a host of public indoor settings must:

  • Require all patrons to wear masks for all indoor settings, regardless of their vaccination status; and,
  • Post clearly visible and easy to read signage, with or without having an employee present, at all entry points for indoor and outdoor settings to communicate the masking requirements to patrons.

Although Cal-OSHA allows fully vaccinated employees to forgo face coverings in the workplace upon providing proof, or attesting, that they are fully vaccinated, Cal-OSHA allows local health jurisdictions to require more protective mandates. Accordingly, the LA County order overrides the more permissible Cal-OSHA Temporary Standards.

The LA County order allows certain employees in workplaces to be exempt from wearing a mask when performing specific tasks that cannot feasibly be performed wearing a mask. These types of exceptions are limited to the period of time in which such tasks are actually being performed. Moreover, workers who cannot feasibly wear a mask while performing their work must be tested for COVID-19 at least twice per week, unless the employer is provided proof of the employee’s full vaccination against COVID-19 or proof of recovery from laboratory-confirmed COVID-19 within the past 90 days.

The County has also issued revised guidance regarding mask requirements available on their website.

The Bay Area could soon have renewed masks mandates, as the Counties of Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, Sonoma, and the City of Berkley have issued a joint statement strongly recommending masking for everyone 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.