On June 18th the California Department of Public Health issued guidance broadly mandating that individuals in California wear face coverings in most circumstances.  This new state guidance follows face-covering mandates previously issued by many California cities and counties.

The state guidance specifies that individuals engaged in work whether at the workplace or offsite must wear face coverings when:

  1. Interacting with any member of the public in-person,
  2. Working in a space visited by the public, even if no member of the public is present,
  3. Working in a space where food is prepared or packaged for sale or distribution,
  4. Working in or walking through common areas of a business, or
  5. When driving or operating public transportation, including private car service.

The new guidance provides several exemptions from its requirements.  For example, individuals who have a medical condition that prevents them from wearing face-covering or if wearing one would create a risk to the person related to their work.  Individuals exempted from wearing a face-covering due to a medical condition who are employed in a job with regular contact with others should wear a non-restrictive alternative, such as a face shield with a drape on the bottom, as their condition permits.

The State encourages employers to review industry-specific guidance available regarding the wearing of face coverings and masks.

The State also indicates surgical masks (manufactured paper masks) should be reserved for medical personnel, as well as workers in manufacturing, food processing, community/social services, social work, in-home daycare, law enforcement/public safety, and schools. Workers using surgical masks should start every day with a new mask. The guidance states employees in such industries should be provided surgical masks at work.

N95 masks, masks that as a respirator that blocks particles, are also reserved for medical personnel and other industries where they are required. As with surgical masks, the guidance states N95 masks should be provided by employers in industries where they are required.

California employers should also check city and county orders where they operate to determine if additional requirements apply to their industry.

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.

Requirements for recording and reporting of occupational injuries and illnesses are unique in California, with the state having more stringent obligations than federal Occupational Safety and Health Administration (“OSHA”) around both reporting of “serious injuries” and what constitutes a work-related injury or illness. To complicate the matter further for California employers, the State of California Department of Industrial Relations’ Division of Occupational Safety and Health (“Cal OSHA”) recently issued guidance on recording and reporting of coronavirus (“COVID-19”) cases, which differs from guidance issued by federal OSHA.

Please find the full article on the Jackson Lewis OSHA Blog.

The start of the year brings a lot of new laws and in the past few years the increase of the State of California’s minimum wage. This year the state minimum wage has increased to $12.00 for employers with 25 employees or less, and $13.00 for employers with 26 employees or more. These rates are scheduled to increase annually until they reach $15.00 in 2022 for larger employers and 2023 for those with 25 employees or less.

Apart from the state-mandated increases, many cities and counties are scheduled to increase the minimum wage under their local ordinances starting July 1, 2020. These wage increases are still scheduled to be implemented despite the impact of the global pandemic on many businesses.

While some cities are continuing to evaluate delaying implementation of their scheduled minimum wage increase, only Hayward and San Carlos have voted to delay their local minimum wage increases until January 1, 2021. The County of Los Angeles, for instance, has considered delaying its minimum wage increase, which affects unincorporated areas of the county, but to date, no motion to this effect has been passed.

On July 1, the following local minimum wages will increase:

Employers with 25 or fewer employees Employers with 26 or more employees
Alameda $15.00 $15.00
Berkeley $16.07 $16.07
Emeryville $16.84 $16.84
City of Los Angeles $14.25 $15.00
County of Los Angeles $14.25 $15.00
Fremont $13.50 $15.00
Malibu $14.25 $15.00
Milpitas $15.40 $15.40
Novato $13.00 26-99 employees: $14.00

100 plus employees:

$15.00
Pasadena $14.25 $15.00
City and County of San Francisco $16.07 $16.07
San Leandro $15.00 $15.00
Santa Monica $14.25 $15.00
Santa Rosa $14.00 $15.00

Other cities have minimum wage ordinances with increases scheduled in January.

Though the State could potentially decide to pause the statewide minimum wage increase, thus far the governor has not taken any action afforded him under the statute to delay the increase set for January 1, 2021.

Jackson Lewis will continue to track wage issues both in California and nationally. If you have questions about payment of wages, reach out to a Jackson Lewis attorney to discuss.

On June 8, 2020, the U.S. Supreme Court denied the employer’s petition for certiorari in OTO, LLC v. Kho.

As background, in 2019, the California Supreme Court ruled in OTO that the arbitration agreement at issue was not enforceable because the agreement was both procedurally and substantively unconscionable. The procedural unconscionability finding generally focused on the manner in which the agreement was presented to the employee. Substantive unconscionability focused on, among other things, the wavier of the employee’s ability to bring Labor Code claims before the state Labor Commissioner in what are known as “Berman hearings.”

In February 2020, OTO petitioned the U.S. Supreme Court to review the California Supreme Court’s decision. In its petition, OTO argued that the California Supreme Court failed to apply California’s general test for substantive unconscionability. Instead, the California Supreme Court had applied an unconscionability-by-comparison approach, using an approach that effectively excludes wage claims because of the potential for those claims to be resolved in a Berman hearing. OTO also argued the California Supreme Court was a “serial offender” that has “repeatedly refused to apply the [FAA’s] equal-treatment principal that [the U.S. Supreme Court] has affirmed time and again.”

On June 8, 2020, the U.S. Supreme Court denied OTO’s petition for certiorari, which means the opinion by the California Supreme Court stands.

Jackson Lewis will continue to monitor legal updates pertaining to arbitration agreements. If you have questions about employment arbitration agreements contact a Jackson Lewis attorney to discuss.

California is known for having a multitude of leaves available to employees from sick leave to organ donation leave. Despite this, California has not mandated employers provide bereavement leave for employees. Many businesses do include unpaid leave for employees to attend funerals and other related services, but such leave is not required under state law.

This may change by the end of the year if Assembly Bill 2999, the Bereavement Leave Act of 2020 (the Act), becomes law. The Act would require an employee to be provided up to 10 business days of unpaid leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner. Moreover, employers would be prohibited from interfering or restraining an employee from exercising their rights under the Act. The Act would also provide job protections for those using the leave.

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

At the beginning of May, California implemented a staged reopening for businesses closed due to the shelter in place orders resulting from the COVID-19 pandemic. This plan, referred to as the “Resilience Roadmap” allowed for counties to apply for a variance if certain criteria set by the state public health officer are met. The variances allow counties to proceed with reopening certain businesses not permitted under the overall state plan.

To date, a majority of counties have been granted variances that permit dine-in restaurants, hair salons, and barbershops to reopen pursuant to specific guidance, in particular, pertaining to conducting work at these businesses.

As businesses prepare to reopen, they should remember that the state mandates all facilities that reopen must:

  1. Perform a detailed risk assessment and implement a site-specific protection plan
  2. Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them
  3. Implement individual control measures and screenings
  4. Implement disinfecting protocols
  5. Implement physical distancing guidelines

In addition to the State requirements, the individual counties have their own health orders which at times include additional requirements along with state mandates. Many counties require businesses to post social distancing protocols at the worksite. For example, the County of Los Angeles has developed several protocols for businesses such as retail stores, hair salons, and restaurants.

Along with social distancing and similar protocols, many counties are including other requirements as businesses bring employees back to work. San Diego County, one of the first more populace counties to be granted a variance, mandates temperature checks for employees in certain industries. Sonoma County has deployed a cell phone application that employers are required to use (unless they can provide the county with the same information by an alternative means) which verifies that employees are symptom and fever-free.

As employers move toward bringing more employees back to work, they should review state and county orders to ensure they are complying with location-specific requirements. Employers will also need to continue to monitor changes as some counties have suggested that reopening may be rolled back as necessary due to COVID-19 spikes.

Jackson Lewis is monitoring reopening orders throughout California and employers can keep up to date with the firm’s COVID19 Advisor Resources that track state and county orders. Jackson Lewis attorneys can also help develop compliant safety and social distancing protocols for your business.

As many California counties move into Stage 2 of the statewide reopening plan following the state’s stay-at-home order, San Francisco has developed its own phased plan for reopening businesses.

Currently, under San Francisco’s plan, essential business, curbside retail, some supply chain businesses, and outdoor businesses are permitted to open.

San Francisco businesses may verify that they may open under San Francisco’s criteria on the county website.  The website also provides information on the counties’ specific protocols for essential businesses including safety requirements and physical distancing rules for work locations.

All businesses operating in San Francisco must:

  • Allow working from home if possible.
  • Follow industry-specific guidance where applicable
  • Prepare a social distancing protocol
  • Prevent large crowds from gathering
  • Require face coverings
  • Prevent unnecessary contact between people
  • Protect employee health

In protecting employee health, San Francisco mandates that employers:

  • Ensure employees do not come to work sick
  • Have employees check their health before starting work
  • Ensure physical distance of at least 6 feet between employee work areas
  • Clean break rooms, bathrooms, and other common areas frequently
  • Make cleaning supplies, hand sanitizer, soap and water with tissues easily available

San Francisco will likely release additional guidance as it moves toward the next phase of its reopening plans.

Jackson Lewis will continue to monitor local and state-wide guidance and developments regarding business reopening. If you have questions regarding developing reopening protocols for your employees contact a Jackson Lewis attorney to discuss.

Most companies continue to grapple with compliance with the California Consumer Privacy Act (“CCPA”), which went into effect in January. Companies have overhauled their privacy programs and policies and designed new systems to comply with the CCPA.

Now, the privacy-right activist group that sponsored the CCPA – Californians for Consumer Privacy – is pushing for an even more stringent privacy bill, the California Privacy Rights Act (“CPRA”). The group recently announced it secured the 900,000 signatures needed to qualify for a place on the state’s November 2020 ballot.

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

As California proceeds through the stages of reopening businesses in the wake of the COVID19 pandemic, the California state legislature is considering various bills to lighten the load for employers as they attempt to recover from the various degrees of business closures. One such bill is Assembly Bill 2457. Though the bill was introduced in February 2020, subsequent amendments were made to address the impact of the COVID19 pandemic and provide partial relief to employers by limiting audits and penalties against businesses that may have misclassified workers as independent contractors.

First, the bill seeks to prohibit an employer from being subject to a fine or penalty for a violation of the Labor Code, Unemployment Insurance Code, or Industrial Welfare Commission (IWC) Wage Orders when an applicant applies for unemployment insurance benefits and has acted as an independent contractor in the previous five years.

Second, the bill would amend the Labor Code Private Attorneys General Act of 2004 (PAGA), which authorizes an aggrieved employee to bring a civil action to recover civil penalties on his or her own behalf and other current or former employees that would otherwise be assessed and collected by the California Labor & Workforce Development Agency. If passed, the PAGA would not apply to an allegedly misclassified employee according to an IWC Wage Order if the employee: (1) has filed for unemployment insurance benefits and (2) the employee’s previous employer hired the employee as an independent contractor before January 1, 2020.

Finally, the California Unemployment Fund as administered by the Employment Development Department (EDD) has established procedures for the filing, determination, and payment of benefit claims. The EDD is also empowered to audit claims, as specified by law. Proposed Assembly Bill 2457 provides that an audit triggered under the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act) does not authorize the EDD or Labor Commissioner, with respect to a claim for unemployment insurance, to audit a previous determination of worker classification if the applicant designated themselves as an independent contractor or as self-employed during the past five years.

The proposed Assembly Bill 2457 would repeal all three provisions on January 1, 2026.

Other bills currently pending before the California state legislature seek to limit the application of the Labor Code to independent contractors, in relation to the current COVID19 outbreak and otherwise.

Jackson Lewis is monitoring pending legislation pertaining to COVID19 and independent contractors. If you have questions regarding these issues, please reach out to a Jackson Lewis attorney to discuss.

On May 4th, Governor Newsom issued a new executive order allowing for limited reopening of certain businesses. This initial allowance for re-opening was part of the State’s larger staged plan referred to as the “Resilience Roadmap.” The Governor’s plan identified that the State was in the early part of Stage 2 but set out guidance for counties to seek variances based on criteria set by the California Department of Public Health.

The State’s roadmap indicated that in the early phase of Stage 2, retail (curbside and delivery only), related logistics and manufacturing, office workplaces (where teleworking was not feasible), limited personal services, outdoor museums, childcare, and essential businesses can open with modifications, could open if the counties could meet certain variances.

In conjunction with the State’s roadmap, several counties developed their own reopening roadmaps, including Orange County. Orange County’s guidance, as such, stated that in early Stage 2 the following businesses could open: curb-side retail, manufacturers, and logistics.  It noted that the “Expanded Stage 2 with Attestation” (and specifically noted that none of these were open in Orange County until there was further guidance on facility adaptations from the Governor), included office-based businesses, and noted that telework remains strongly encouraged.

Subsequently, the Governor retracted on some of the requirements of counties, and, as such, allowed the state to progress to a more thorough Stage 2, including the opening of office-based businesses.

At that point in time, Orange County’s roadmap was more stringent than California’s guidance, as it stated that, among others, an office-based business could only open in “Expanded Stage 2 with Attestation,” not in “Early Stage 2 Opening.”

However, the County identified this conflict and, over the weekend, issued new guidance confirming office-based businesses may reopen in the County, where telework is not possible, following applicable guidelines. Office-based businesses will still need to comply with both county and state guidance for reopening.

The State has mandated that all facilities who reopen must:

  1. Perform a detailed risk assessment and implement a site-specific protection plan
  2. Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them
  3. Implement individual control measures and screenings
  4. Implement disinfecting protocols
  5. Implement physical distancing guidelines

Jackson Lewis is monitoring state and local guidance and can assist in developing return to work policies and protocols for businesses. Contact a Jackson Lewis attorney if you would like to discuss your business’s return to work plans.