On September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”) which has three new laws combined into one bill. The bill covers supplemental sick leave requirements, a pilot mediation program for small employers, and mandated hand washing requirements for food workers.

Food Sector Workers Supplemental Sick Leave

When Governor Newsom issued Executive Order (“EO”) N-51-20 mandating supplemental paid sick leave for food sector workers, it was uncertain whether the governor had the authority to issue such an EO. AB 1867 resolved those concerns by adopting many parts of the governor’s EO and making the law retroactive to April 16, 2020, when the EO was issued. AB 1867 also clarifies the definition of a “food facility” to include all sections of Health and Safety Code Section 113789. Previously, the Food Sector Worker EO only listed subsections (a) and (b) of the code, leaving out subsection (c) which stated what did not qualify as a “food facility.” AB 1867 includes subsection (c) providing clarity to whether an employer is covered.

               Who is a “Food Sector Worker”?

AB 1867’s definition of food sector worker is similar to that of the Food Worker Sick leave EO. A major change to the definition of eligible food sector worker is that a  worker no longer must qualify as an essential critical infrastructure worker.

Another change in AB 1867 from the Food Sector Worker EO was that the EO set to expire at the time of expiration of any statewide stay-at-home orders issued by the State Public Health Officer. However, AB 1867 expires in line with the federal Families First Coronavirus Response Act (“FFCRA”) on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later.

Importantly, AB 1867 also made clear that employers who had provided supplemental sick leave since the pandemic may take a credit for their previously provided supplemental sick leave if it is equivalent or exceeds AB 1867’s requirements.

               What Time Off Is Provided?

Like the Food Worker Sick leave EO, AB 1867 requires covered employers to provide full-time employees eighty (80) hours of paid time off and part-time employees a proportionate time off for the following reasons:

  • The food sector worker is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
  • The food sector worker is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
  • The food sector worker is prohibited from working by the food sector worker’s hiring entity due to health concerns related to the potential transmission of COVID-19.

Unlike the Families First Coronavirus Response Act (“FFCRA”) and other supplemental paid sick leave ordinances in California,  AB 1867 does not provide leave for those caring for a family member who is quarantined or sick or caring for a minor child whose school or childcare has closed due to COVID-19.

COVID-19 Supplemental Paid Sick Leave Law

Additionally, AB 1837 establishes COVID-19 supplemental paid sick leave for workers outside of the food sector, including certain employees employed by private businesses with 500 or more employees in the United States.

The new law also covers employees who were excluded from coverage under the FFCRA as a health care provider or emergency responder. Food sector workers are excluded if they already qualify for the food sector worker benefit discussed above. There are also unique rules regarding fire departments and forestry in the new law.

Generally, eligible employees can take this new COVID-19 supplemental paid sick leave for similar reasons as discussed above for food sector workers and at similar rates.

The law requires the Labor Commissioner to make publicly available a model notice for purposes of complying with the posting requirements. The law permits notice to be provided to employees by electronic means in lieu of posting, only if a hiring entity’s covered workers do not frequent a workplace.

The new COVID-19 supplemental paid sick leave may expire on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later.

Handwashing

The new law requires a food sector worker working in any food facility to be permitted to wash their hands every 30 minutes and additionally as needed. This codified a similar requirement set forth in the Food Sector Worker EO.

Small Employer Family Leave Mediation

Assembly Bill 1867 also requires the Department of Fair Employment and Housing (“DFEH”) to create a small employer family leave mediation pilot program for employers with 5 to 19 employees. The pilot program would authorize a small employer or the employee to request to participate in mediation through the DFEH’s dispute resolution division after notice. The bill prohibits an employee from pursuing civil action until the mediation is complete if an employer or employee requests mediation. The bill also tolls the statute of limitations for the employee, including for additional related claims, from when a request to participate in the program is received until the mediation is complete or ended. These provisions of the bill would be repealed on January 1, 2024.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 9, 2020, Governor Newsom signed Assembly Bill (“AB”) 736, which expands the professional exemption under Industrial Welfare Commission (“IWC”) Wage Orders Nos. 4-2001 and 5-2001 to include part-time, or “adjunct,” faculty at private, non-profit colleges and universities in California.

AB 736 amends the Labor Code to add Section 515.7, which states that an employee providing instruction for a course or laboratory at a private, non-profit college or university may be classified as exempt under the professional exemption if the employee meets both a duties and salary test. The duties test is unchanged from the existing professional exemption in the IWC Wage Orders, but the salary test has changed. Under AB 736, an employee can meet the salary test if the employee is paid either a monthly salary of two times the state minimum wage for full-time employment or is paid by the course or laboratory taught, provided that the employee’s compensation meets specific requirements contained in the statute.

AB 736 goes into effect immediately.

Jackson Lewis will continue tracking state legislation that is relevant to employers.  If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

As California employers brace for a host of new laws that will affect operations in the workplace, the City of San Diego recently passed two new COVID-19 ordinances. The City Council passed a right of recall ordinance and a supplemental paid sick leave ordinance before Governor Newsom signed Assembly Bill 1837, which covers similar supplemental paid sick leave requirements.

The supplemental paid sick leave, like other similar local ordinances, is intended to ensure that an employee working for companies that employ 500 or more employees will receive similar benefits as those offered under the federal Families First Coronavirus Response Act (“FFCRA”).  These benefits include 80 hours of paid sick leave to any employee who is infected by COVID-19 or who has an infected family member.

Covered Employers

The new supplemental paid sick leave ordinance covers all employers that are not considered a “covered employer” under the FFCRA, including those with over 500 employees.

The following employers are exempted from the supplemental paid sick leave:

  1. Employers of emergency responders or a healthcare provider.
  2. Employers that provide global delivery services.
  3. Employers that were closed or not operating for a period of 14 or more consecutive calendar days due to a City of San Diego official’s emergency order because of COVID-19.
  4. Employers that have a paid leave or paid time off policy that provides a minimum of 160 hours of paid leave annually.
  5. Government Agency employers whose employees are working within the scope of their public service employment.

Covered Employees

Under the ordinance, “covered employees” are any employee as defined under the Labor Code who performed work for an employer within the geographical boundaries of the City of San Diego on or after June 1, 2020. An employee is entitled to leave if they have been employed by the same employer for the 3 months immediately preceding June 1, 2020.

Amount of Leave

Employees normally scheduled to work at least 40 hours or classified as full-time by the employer on June 1, 2020, will be entitled to 80 hours of supplemental paid sick leave. Employees working less than 40 hours or classified as part-time on June 1, 2020, will receive supplemental sick leave equal to the average number of hours worked over a two-week period. Like the FFCRA the amount of leave paid to an employee shall not exceed $511 per day and a $5,110 in aggregate.

A covered employer’s obligation to provide 80 hours of leave under the ordinance is reduced for every hour an employer allowed an employee to take paid leave in an amount equal or greater than the requirements of the ordinance, not including previously accrued hours, on or after June 1, 2020, for any reason covered by the ordinance.

Reasons for Leave

Employees may take leave for the following reasons:

  1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. The employee has been advised by a healthcare provider to self-quarantine due to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis;
  4. The employee is at least 65 years old and has a health condition such as heart disease which puts the employee at heightened risk of serious illness or death if exposed to COVID-19;
  5. The employee needs to provide care for a family member or household member who has been diagnosed with COVID-19 or is experiencing symptoms of COVID-19;
  6. the employee needs to provide care for a family member or household member who is not sick but who public health officials or healthcare providers have required or recommended isolation or self-quarantine due to COVID-19 concerns;
  7. the employee needs to provide care for a family member or household member whose senior care provider, or whose school or child care provider for a child under the age of 18, has been closed or is otherwise unavailable in response to a public health order or other public official’s recommendation related to COVID-19

An employer may not require a doctor’s note or other documentation for the use of the leave.

Notice Requirement

The City of San Diego will publish a notice suitable for every employer to inform employees of their rights. Every covered employer must within three days of the City publishing the notice must provide the notice to employees in a manner calculated to reach all employees, including posting or via electronic communication.

Jackson Lewis will continue to monitor emergency regulations pertaining to COVID-19. Jackson Lewis’ Coronavirus Task Force is actively monitoring the developing situation surrounding the complexities of COVID-19.

 

The California Consumer Privacy Act (“CCPA”) has only been in effect since January, but amendments are already on the horizon. Personal information in the employment context was highly contested during the CCPA’s amendment process prior to enactment and has continued to be a point of deliberation even after the CCPA’s effective date.

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

One of the first employment-related bills signed by Governor Newsom this legislative session was Assembly Bill (“AB”) 2257, which recasts, clarifies, and expands exemptions to AB 5, last year’s bill relating to independent contractors.

In September 2019, Governor Newsom signed into law AB 5, which codified the “ABC Test” adopted by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 4 Cal.5th 903 (2018), to determine whether a worker should be classified as an independent contractor or employee.  Under the ABC Test, a worker is presumed to be an employee unless the hiring entity can establish three factors. When the Legislature passed AB 5, it included certain exemptions: if a worker falls within one of the exemptions, then the worker’s status as an employee or independent contractor is determined using the less stringent multi-factor test established in S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341 (1989).

AB 2257’s changes to the existing exemptions include:

  • Referral Agency Exemption: Expands and clarifies the types of services covered by the exemption, including adding youth sports coaching, interpreting services, and consulting services. Clarifies that the exemption does not apply to referrals for services provided in certain high hazard industries and referrals for businesses that provide janitorial, delivery, courier, transportation, trucking, agricultural labor, retail, logging, in-home care, or constructions services other than minor home repair.
  • Professional Services Exemption: Expands and clarifies the exemption as it applies to photographers, photojournalists, videographers, and photo editors, and expands the exemption to include “master class” instructors, appraisers, registered professional foresters, and home inspectors.
  • Exemption for Certain Occupations: Broadens the scope of occupations exempt from AB 5 to include landscape architects, manufactured housing salespersons, competition judges, and individuals providing underwriting inspections, premium audits, risk management, or loss control work for insurance and financial service industries.

AB 2257 also establishes new exemptions for certain individual performance artists as well as occupations related to the creating, marketing, promotion, and distribution of sound recordings and musical compositions, including certain recording artists, vocalists, and musicians, managers of recording artists, and record producers.

Both the existing and the new exemptions to AB 5 contain specific requirements that must be met before an exemption will apply to a worker.

AB 2257 was effective immediately upon the Governor’s signing of the bill.

Jackson Lewis will continue tracking state legislation that is relevant to employers.  If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On August 31st, the California legislature closed its 2019 – 2020 session with the Assembly and Senate passing over 35 employment-related bills. However, thus far, the only employment-related bill the Governor has signed is Assembly Bill 3364 (“AB 3364”). AB 3364, titled “Judiciary omnibus,” covers a myriad of items from the licensure of attorney to the debts of limited liability corporations.

One portion of AB 3364 relevant to employers is the amendments to Government Code sections 12921, 12926, and 12940. These amendments clarify that the Fair Employment and Housing Act (“FEHA”) prohibits discrimination against individuals who either are veterans or because of the individual’s military status, instead of veteran and military status. This makes conforming, nonsubstantive changes to the term “veteran or military status” in the FEHA.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation, please contact a Jackson Lewis attorney to discuss.

As safe in-person voting became an issue in other states, California Governor Gavin Newsom issued an executive order requiring each county’s election officials to send vote-by-mail ballots to registered voters for the November election. The Governor also issued an executive order requiring counties to provide early polling locations for at least three days prior to election day. In light of these initiatives to ensure wide availability of voting options in California, employers may question if they still are required to provide time during the workday for their employees to vote?

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

On August 28th, Governor Newsom announced new reopening plans for California in hopes of preventing another COVID-19 surge. The plan incorporates information learned over the past six months in addition to new scientific discoveries to create a system for reducing the transmission of COVID-19. It involves a four-tiered color system that ranks counties based on the number of virus cases and infection rates. Purple means that COVID-19 is widespread in the county, Red means substantial infections, Orange means moderate infections, and Yellow means minimal infections. The color provided will indicate how sectors can operate. Governor Newsom said the new system is “simple, stringent, and slow.” Business owners can check the status of their county or industry on the State’s new website: https://covid19.ca.gov/safer-economy/

In conjunction with the announcement, the California Department of Public Health (“CDPH”) issued a new statewide order explaining the basis for the four-tiered system. The order explains that counties may reopen specified sectors according to their tier. However, a county that moves to a tier permitting further reopening “must pause for 21 days,” or a different period identified by the CDPH before reopening additional industries. Conversely, counties must also close sectors based upon their tier. Counties will also be permitted to implement or maintain more restrictive measures if the Local Health Officer determines it is warranted.

Jackson Lewis will continue to monitor developments about state and local guidance for businesses pertaining to COVID-19. If you have questions about complying with state and local health orders pertaining to your business, contact a Jackson Lewis attorney to discuss.

With the increase in COVID-19 cases in California and across the nation, employers are faced with a number of new challenges in the workplace, one of which is determining when employees may return to work after they have tested positive for the virus. Unfortunately, there have been mixed messages from state and federal authorities on this issue.

California’s Department of Fair and Employment and Housing (“DFEH”) released guidelines for employers about COVID-19 and the workplace, which were last updated in late July. The related FAQ indicates that, under the current circumstances, and in accordance with guidance from the Center for Disease Control (“CDC”) and the United States Equal Employment Opportunity Commission (“EEOC”), “employers may require employees to submit to viral testing but not antibody testing before permitting employees to enter the workplace…”

The DFEH guidance further indicates that decisions to allow employees to return to work may follow either a symptom-based, time-based, or test-based strategy. “Symptom-based strategy” refers to the elapsing of time following the cessation of symptoms, “time-based strategy” typically refers to the elapsing of time following an asymptomatic person’s confirmed result, and “test-based strategy” refers to requiring a person who previously tested positive to obtain a second, negative test result.

Also at the end of July, the state of California released the “COVID-19 Employer Playbook,” which provided some guidance on the minimum criteria for employees to return to work. That guidance stated that that symptomatic positive employees could return to work 24 hours after the last fever, without the use of fever-reducing medications, if there had been an improvement in symptoms and at least 10 days had passed since symptoms first appeared. This was also indicated in the California Department Public Health (“CDPH”) Order, issued in June, about responding to COVID-19 in the Workplace.

More recently, on August 24th, the CDPH released guidance which reiterates when employees who have tested positive may return to work, as follows:

  1. Individuals who test positive for SARS-CoV-2, the virus that causes COVID-19, and who have had symptoms, may return to work or school when:
    1. At least 10 days have passed since symptoms first appeared, AND
    2. At least 24 hours have passed with no fever (without the use of fever-reducing medications), AND
    3. Other symptoms have improved.
  1. Individuals who test positive for SARS-CoV-2 who never develop symptoms may return to work or school 10 days after the date of their first positive test for SARS-CoV-2.

The recent CDPH guidance states that employers should follow a time- and symptom-based strategies and discourages employers from using a test-based strategy (i.e., requiring employees to obtain a second negative test result before returning to work).

Employers should also check local public health orders for their county when determining how and when to return to the worksite an employee who has recovered from COVID-19. It is important to also confer with your employment counsel when implementing new policies and procedures related to COVID-19, particularly given that the guidance issued by government authorities continues to evolve at a rapid pace.

Jackson Lewis is tracking national, state and local developments pertaining to COVID-19 in the workplace. If you have questions about developing policies and procedures related to COVID-19 and your business, contact a Jackson Lewis attorney to discuss.

In 2018, California law extended anti-harassment training requirements to employers with 5 employees or more and mandated that non-supervisors also receive such training, in addition to supervisors. The original deadline for completion of that training was January 1, 2020.  Current California law requires employers with 5 or more employees to provide one (1) hour of sexual harassment prevention training to nonsupervisory employees and two (2) hours of sexual harassment prevention training to supervisors and managers.  This interactive training must occur every two years and must include prevention of abusive conduct as a component, among several other topics required to be covered.

In 2019, California Governor Newsom signed legislation extending the deadline under California Government Code section 12950.1 for initial compliance to January 1, 2021. The amendment to the California Government Code also clarified that an employer that provided sexual harassment training in 2019 is compliant with the training requirements and is not required to provide training again for two years.

Many employers delayed training in early 2020, due to COVID-19 stay at home orders and hoped by summer they could reschedule. As in-person training continues to be difficult under state and county guidance, many employers thought the Governor might further extend the deadline.

However, much like the state minimum wage increase set for January 1, 2020, neither the California legislature nor the Governor have made any moves to extend the deadline for compliance despite the ongoing pandemic.  The January 1, 2021 compliance deadline to provide sexual harassment training remains.

While providing employees in-person training may not be feasible, the California Department of Fair Employment and Housing (“DFEH”) allows for training to occur live in a classroom, online, or in “any other effective, interactive format.” Training may be completed by employees individually or as part of a group presentation and may be completed in segments as long as the total hourly requirement is met.

Regardless of how training is completed, employers should remember to retain records of all employees’ training for a minimum of two years.

Jackson Lewis provides California compliant training via webinar to allow for group presentations even while employees are remote. If your employees need to be trained, contact a Jackson Lewis attorney to discuss your training needs.