At the end of July, the Department of Industrial Relations (“DIR”) released guidance to assist with the safe reopening of businesses in light of the ongoing COVID-19 pandemic. The guidance covers the following topics:

  • Employer Obligations to Keep the Workplace and Employees Safe
  • Face Coverings
  • Medical Checks
  • Returning to the Worksite
  • Waivers of Liability

The DIR states that employers must follow the California Department of Public Health’s (“CDPH”) Employer Guidelines if an employee tests positive for COVID-19. Employers should also: (1) instruct employees to stay home and notify the employer if they have symptoms of COVID-19, were diagnosed, or are awaiting test results; (2) report to CAL/OSHA any serious injury, illness, and death, including hospitalization from COVID-19 (if assessed to be work-related or likely to be work-related); and (3) consider testing employees in the workplace to identify any potential cases. An employee who appears to have COVID-19 symptoms in the workplace must be separated from other employees, customers, and visitors, and sent home.

Employees barred from work or sent home may be eligible for paid leave under any of the following:

  • Federal paid sick leave up to a possible 80 hours under the Families First Coronavirus Response Act (FFCRA)
  • COVID-19 Supplemental Paid Sick Leave Ordinances
  • California Paid Sick Leave under California Labor Code Section 246
  • Local Paid Sick Leave Laws

In addition, employers must require employees to wear face coverings at all times, with limited exceptions. Face coverings must be provided at no cost to employees.

The guidance also provides clarity regarding medical checks. Specifically, the DIR confirmed an employee required to undergo medical checks, including on-site temperature checks, must be compensated for the time spent undergoing the check. This is because time spent undergoing temperature checks is “time worked” under the Labor Code, as it is “under the control of the employer.” However, the DIR states that whether medical checks performed at home should be compensated depends on the factual circumstances of each case and should be evaluated by the “level of control exercised by the employer.” In some cases, medical checks may be compensable if “an employer-mandated that workers spend a few minutes before every shift following a set of detailed procedures using a particular cell phone application to take and record their temperature and then fill out a health questionnaire of a non-trivial length.”

The DIR also notes that if an employee is required to use a personal cell phone as part of a medical check, the employer must provide a business reimbursement for cell phone use. Alternatively, if an employer provides a device at no charge to the employee, reimbursement is not required.

The DIR also issued guidance related to returning to the worksite. An employer may require employees who have been working remotely to return to the worksite presuming the employer has reviewed relevant guidance and put into place an action plan to ensure the safety of the workplace.

Lastly, the DIR has provided guidance related to waivers of liability sought by employers. Specifically, employers may not ask employees to waive their rights under the Labor Code. For example, employers must provide employees’ compensation benefits for injuries or illnesses contracted during the course of employment. Employers must also provide safe and healthy workplace conditions. Neither of these requirements can be waived.

If you have questions about return to work issues or ensuring compliance with state or local COVID19 regulations and requirements, contact a Jackson Lewis attorney to discuss.

To assist with protecting the essential workers who work in the agricultural industry, California’s Department Industrial Relations Division of Occupational Safety and Health (“Cal OSHA”) issued updated guidance on coronavirus (“COVID-19”) infection prevention procedures for employers in the agricultural industry.

While the guidance does not impose new legal obligations on employers, the guidance is meant to assist agricultural employers in their efforts to prevent and minimize the spread of COVID-19. The guidance also provides helpful information on details Cal OSHA expects will be addressed in an employer’s amendments to their Injury Illness Prevention Program (“IIPP”) in response to potential COVID-19 exposures.

Like all employers in California, who are operating under applicable state and local public health orders, agricultural employers must provide training to employees on COVID-19, including symptoms of COVID-19 and potential sources of exposure to the virus, along with methods for preventing and minimizing risks of exposure, including use of cloth face coverings, social distancing measures, and good hygiene practices (e.g. frequent hand washing).

The guidance also recommends that agricultural employers detailing specific procedures to prevent the spread of COVID-19 in their IIPPs including:

  • Sending employees with COVID-19 symptoms home or obtaining medical care for them as needed.
  • Establishing procedures to notify local health officials when someone has a COVID-19 infection.
  • Encouraging sick workers to stay home.
  • Advising employees who stay home with symptoms not to return to work until at least 3 days after recovery and 10 days after the original onset of symptoms, per CDC guidance.
  • Making hand-washing stations more readily available and encouraging frequent hand washing.
  • Establishing enhanced procedures for cleaning and disinfection.

Cal OSHA’s guidance further recommends that agricultural employers establish procedures to ensure that workers can maintain effective social distancing, such as adjusting line speeds, staggering work shifts and breaks, limiting crew sizes, and providing additional seating and shade structures

Finally, the guidance provides additional resources for agricultural employers including state and federal guidelines.

Jackson Lewis is tracking new rules and regulations related to COVID-19 and workplace safety. If you have questions or concerns about complying with California workplace regulations, contact a Jackson Lewis attorney to discuss.

Employment claims brought by a former claims adjuster were batted back and forth from California state court to Indiana federal court and nearly back again before the U.S. Court of Appeals for the 7th Circuit stepped in. On August 3, 2020, the 7th Circuit held the forum selection clause between the former claims adjuster and his employer must be given controlling weight in deciding where the case should be heard.

Defendant Ryze Claims Solutions (“Ryze”) is a comprehensive claims service company located in Indiana. Plaintiff Leslie Billings was a traveling claims adjuster and worked out of his home in California. Billings had entered into an employment agreement with Ryze in 2009 which included a forum-selection clause. A second agreement between Billings and Ryze was dated in 2016.  A forum-selection clause, in essence, allows the parties to a contract to agree where they will litigate if an issue arises out of the contract.

As happens, Billings took issue with some of Ryze’s employment policies and filed suit in state court in California. He alleged wage and hour violations under both the state labor code and the Fair Labor Standards Act. Ryze removed the claims to federal court in California.  Ryze then successfully transferred the venue to an Indiana federal district court based on the forum-selection clauses in its agreements with Billings.

The Indiana court granted Ryze’s motion for summary judgment as to all federal claims. Despite having heard a motion for summary judgment and having other motions pending, the Indiana district court then sent the case back to a California federal district court. In support of this action, the Indiana court cited to its own congested docket and the California court’s “familiarity” with California labor law.

Once again docketed in California, the California district court ordered the parties to show why the action should not be sent to state court. Ryze, in turn, filed a petition for mandamus with the 7th Circuit to bring the matter back to Indiana.

The 7th Circuit granted the petition.  The 7th Circuit held the district court must give “forum-selection clauses ‘controlling weight in all but the most exceptional cases.”  Finding nothing particularly exceptional, the 7th Circuit found that Indiana was the proper venue.

While this case is an example of a forum selection clause being enforced, employers are reminded of the requirements of Labor Code section 925. Section 925 states that an employer shall not require an employee who primarily resides and works in California to “adjudicate out of California a claim arising in California.   Section 925 applies only to contracts entered into on or after January 1, 2017.  Billings signed his employment agreements in 2009 and 2016.  If he had signed after 2017, then potentially, this case would not have made it out of California.  Section 925 does not apply where an employee is individually represented in the negotiations of the contract that contains the forum selection clause.

If you have questions about drafting or enforcing forum-selection clauses in the employment arena contact a Jackson Lewis attorney to discuss in more depth.

As campaign season heats up and political protests continue on top of an already stressed workforce, most employers seek to maintain a harmonious work environment. While perhaps tempting to regulate employee behavior to keep politics out of the workplace, employers should tread carefully.

Under California’s discrimination laws, political affiliation is not a protected classification.  On the other hand, Labor Code section 1101 states that an employer shall not make rules, regulations, or policies that prohibit employees from engaging or participating in politics, including becoming candidates for public office. Similarly, Labor Code section 1102 prohibits employers from coercing or influencing employees through adverse employment action to adopt or follow any particular course or line of political action or political activity.  As such, employers should be thoughtful in crafting policies about political expression in the workplace.

Employers may also want to regulate employees’ activities outside the work environment to avoid embroiling the business in controversy but must be cognizant of their employees’ rights to engage in lawful activities outside work, such as attending demonstrations or posting opinions on social media.

These freedoms for employees do not preclude employers from enforcing policies against harassment between employees whether it occurs in the workplace or on social media. Employers also may enforce policies prohibiting employees from attributing their own opinions or preferences to their employer, whether in social media or in public, as well as ensuring protection for the company and its intellectual property.

For assistance navigating these or other matters, contact the authors or your favorite Jackson Lewis attorney.

On July 24, 2020, the State of California released a “COVID-19 Employer Playbook” to guide employers in planning and preparing for the safe reopening of their businesses.  It combines guidance from various California agencies to ensure that employers have the tools they need to plan for a safe and clean workplace.  Notably, the Playbook is not meant to be exhaustive, as it does not include county-specific health orders, nor is it a substitute for existing safety and health-related regulatory requirements such as those from Cal/OSHA.

The Playbook provides guidance for managing and preventing outbreaks in the workplace, regulations for reporting identified cases, cleaning and disinfecting protocols, return to work guidelines following a confirmed case, and California paid sick leave requirements.  It also offers a comprehensive list of resources for employers, including industry-specific checklists from state regulatory agencies that monitor and enforce COVID-19 statutes and orders. These agencies include the Department of Alcoholic Beverage Control, the Department of Consumer Affairs, and the Department of Industrial Relations (which incorporates the California Division of Occupational Safety and Health and the Division of Labor Standards Enforcement).

Lastly, the Playbook educates employees on ways they can protect themselves and others, both in the workplace and at home. This includes enforcing face-covering requirements and suggested language and de-escalation measures for communicating with workers, customers, and visitors in the workplace about face coverings.

Jackson Lewis is tracking new rules and regulations related to COVID-19 and workplace safety. If you have questions or concerns about complying with California workplace regulations, contact a Jackson Lewis attorney to discuss.

Despite California’s recent statewide closures for indoor operations at restaurants, movie theaters, family entertainment centers, zoos, wineries, and closures for select hospitality businesses across more than 30 counties, Oakland passed a new right to reemployment ordinance. Like the Los Angeles ordinance, Oakland’s Ordinance is limited to industries related to certain hospitality operations, such as airport hospitality providers, event centers, hotels, and covered restaurant employers, including fast-food restaurants.

The Ordinance specifies that the airport hospitality providers are businesses that provide food, beverage, retail, or other consumer goods or services to the public at the Oakland International Airport. The Ordinance also applies to a variety of airport service providers at the Oakland International Airport.

The Ordinance covers only event centers in the City of Oakland that are more than fifty thousand (50,000) square feet or have five thousand (5,000) or more seats.

Under the Ordinance, a “Covered Restaurant Employer” is an employer with more than 500 employees, regardless of where the employees are employed, or is a Franchisee associated with a Franchisor or a network of Franchises that employ more than 500 employees in the aggregate.

The Ordinance applies to any employee who (i) was employed for at least six (6) months in the twelve (12) months preceding January 31, 2020, and (ii) whose most recent separation from employment occurred after January 31, 2020, was due to an economic, non-disciplinary reason, including but not limited to a lack of business due to a government-issued stay-at-home order, bankruptcy, or reduction in force. An employee working for a covered employer under the Ordinance need only work at least two (2) hours a week within the City of Oakland. There are additional rules in the ordinance regarding eligible employees.

Under the ordinance, a covered employer must offer eligible laid-off employees, in writing, any job positions that become available after the effective date of the Ordinance that the employee is qualified for with the employer. The employer may provide notice either by registered mail to the employee’s last known physical address, and by email or text to the extent, the employer has that information.

The Ordinance specifies that an eligible employee is qualified for a position if the employee:

  • Held the same or substantially similar position with the employer, or
  • Is or can be qualified for the position with the same training that would be provided to a new employee hired into that position.

Eligible laid-off employees shall be given no less than ten (10) days from the postmark date of the mailed letter and dates of email and text notification to accept or decline the offer.

Employers must also provide written notice to laid-off employees, who are not called back due to lack of qualifications if a person is hired other than a laid-off employee. The notice shall be provided within thirty (30) days of the date of hire. In addition, the employer must document the reason for the decision not to rehire the laid-off employee and must maintain this written document for at least three (3) years.

Jackson Lewis continues to track state and local regulations pertaining to COVID19. If you have questions about compliance with this ordinance or other COVID19 issues, contact a Jackson Lewis attorney to discuss.

On April 16, 2020, California Governor Gavin Newsom issued Executive Order N-51-20, (“Executive Order”) which provides COVID-19 related paid sick leave for “food sector workers” who work for larger employers in the state. The California legislature is now considering codifying those leave requirements with Senate Bill 729.

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

On July 13th two of the largest school districts in California, Los Angeles Unified School District and San Diego Unified School District announced that the school year would start in August with students attending virtually – only. They have been joined by several school districts in Orange County, San Francisco , and Sacramento. Assisting employees as they attempt to balance work and childcare can be complicated in these difficult times.

Applicable Leaves

In recent months the federal and local governments passed paid leave laws with a focus on supporting families due to sudden school closures.

The federal Families First Coronavirus Response Act (FFCRA) provides paid leave for employees who needed to care for a child while their school or childcare provider was closed due to COVID-19 related reasons. FFCRA is limited to employers with under 500 employees with smaller employers of 50 or less potentially exempted from the Act. FFCRA requires employers to provide a maximum of 80 paid hours of leave for full-time employees.

The Department of Labor (“DOL”) published a Questions and Answers Page, which provides clarity to the issue of virtual schooling. The DOL states, “[i]f the physical location where your child received instruction or care is now closed, the school or place of care is ‘closed’ for purposes of paid sick leave and expanded family and medical leave. This is true even if some or all instruction is being provided online or whether, through another format such as ‘distance learning,’ your child is still expected or required to complete assignments.” As such, if an employee is FFCRA eligible he or she would be permitted to take leave under the Act.

The California Labor Commissioner has also released a Frequently Asked Question page clarifying that employees may apply their California Paid Sick Leave to a covered leave under California Labor Code section 230.8, a statute that allows employees to take leave due to a school emergency. The City of San Diego’s paid leave includes care for a child whose school or childcare provider is closed due to a public health emergency as a covered reason for its local sick leave.

Several cities and counties in California have also passed local supplemental paid sick leave ordinances requiring paid leave for employees caring for children whose schools or childcare are closed due to COVID-19. These ordinances were intended to cover larger employers not covered under the FFCRA and provide a maximum of 80 paid hours of leave. Since the FFCRA deems a closure to include virtual schooling, it would seem the same would apply for these ordinances intended to mirror the FFCRA and often reference the FFCRA in their definitions. As such, as school starts virtually in August, many employees may be seeking paid leave under the local ordinances and FFCRA to assist with virtual schooling.

Remote Work

Some employees may have already exhausted available leaves, and other employees may request to work remotely while supporting children with e-learning. If an employee is not already teleworking, there are some things employers should consider:

  • Reimbursements for use of personal internet and telephone
  • Remote Work/Telework Policies including maintaining confidential business information
  • Minimum Salary requirements for exempt employees
  • Tracking all hours worked for non-exempt employees, including meal and rest periods

Employers may also want to prepare a telework agreement to ensure that the company and the employee share an understanding of the employee’s duties and hours while working remotely.

To ensure you are staying on top of national and local regulations surrounding COVID-19 in real-time register for the Jackson Lewis COVID-19 Advisor.  Our firm has attorneys nationwide from multiple practices and industries actively assisting businesses on the rapidly evolving COVID-19 workplace challenges.

With the California Consumer Privacy Act (CCPA) now in effect (January 1, 2020) and enforceable by California’s Attorney General (“AG”) (July 1, 2020), the AG has published Frequently Asked Questions (FAQs). Designed to aid consumers in exercising their rights under the CCPA, the FAQs also contain helpful reminders for businesses and service providers regarding their obligations under the law.

The FAQs cover several main topics for consumers: general information, “Do Not Sell” requests, “Right to Know” requests, required notices, “Right to Delete” requests, right to nondiscrimination, and information about data brokers. As noted, FAQ responses include information businesses and service providers may want to review.

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

Sacramento has passed the Sacramento Worker Protection, Health and Safety Act (Ordinance No. 2020-00260) which is effective as of July 15, 2020.

The ordinance requires all employers operating in the City of Sacramento to comply with certain specified safety practices and protocols, many of which are recommended by the California Department of Public Health and the Centers for Disease Control and Prevention (CDC), and requires larger employers to provide supplemental paid sick leave to employees for COVID-related reasons.

Required Safety Protocols

The ordinance requires that all Sacramento employers implement the following safety protocols:

  1. Daily cleaning and disinfection of high-touch areas in accordance with guidelines issued by the CDC.
  2. Maintaining cleaning protocols established by the employer for all work sites.
  3. Establishing protocols for action upon discovery that the worksite has been exposed to a person with a probable or confirmed case of COVID-19.
  4. Providing employees with access to regular handwashing with soap, hand sanitizer, and disinfectant wipes.
  5. Cleaning common areas, including break rooms, locker rooms, dining facilities, conference rooms, training rooms, and restrooms, both daily and between shifts.
  6. Providing face coverings for employees to wear at the worksite, mandating that employees wear the face coverings (except to the extent the employee can maintain proper physical distancing in accordance with guidance from the CDC); and establishing proper physical distancing protocols.
  7. Informing all employees, in writing, of the required protocols, both in English and in any other language spoken by at least 10 percent of employees.

The ordinance also provides that an employee may refuse to work if the employee reasonably believes that an employer is not complying with the required safety protocols.

Supplemental Paid Sick Leave

The ordinance also creates a supplemental paid sick leave requirement, similar to those passed by several cities in recent months.

Unlike the safety protocol requirements, this portion of the ordinance only applies to employers that have 500 or more employees nationally and are not covered by the federal Families First Coronavirus Response Act (FFCRA).

As with other similar local ordinances, the Sacramento’s ordinance provides 80 hours of paid time off for full-time employees; part-time employees receive paid time off  equal to their average number of hours worked over a two-week period. The supplemental paid sick leave is paid at the employee’s regular rate of pay, subject to caps on the amount that must be paid to an employee on a daily and aggregate basis.

Supplemental paid sick leave may be used for the following reasons:

  1. The employee is subject to quarantine or isolation by a federal, state, or local order or is caring for a family member who is subject to such an order.
  2. The employee is advised by a health care provider to self-quarantine due to COVID-19 or is caring for a family member who is so advised.
  3. The employee chooses to take off work because the employee is over 65 years of age or is considered vulnerable due to a compromised immune system.
  4. The employee is off work because the employer’s work location temporarily ceases operation due to a public health order or other public official’s recommendation.
  5. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
  6. The employee is caring for a minor child because of a school or daycare closure due to COVID-19.

The ordinance contains other requirements, which employers operating in Sacramento should ensure they are following.

The ordinance will remain in effect until December 31, 2020.

Jackson Lewis is tracking new rules and regulations related to COVID-19 and workplace safety. If you have questions or concerns about complying with California workplace regulations, contact a Jackson Lewis attorney to discuss.