As we recently reported, the privacy-right activist group that sponsored the California Consumer Privacy Act (“CCPA”) – Californians for Consumer Privacy – is pushing for an even more stringent privacy bill, the California Privacy Rights Act (“CPRA”). The CRPA has now qualified for the November 3, 2020 ballot, gathering more than 600,000 valid signatures as required, according to the memorandum circulated by the California Secretary of State. If California voters approve the initiative in November, the CPRA would significantly expand the rights of Californians under the current California Consumer Privacy Act (“CCPA”) starting on January 1, 2023, with certain provisions going into effect immediately.

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

On June 23, 2020, the San Francisco Board of Supervisors passed an emergency ordinance temporarily creating a right to reemployment for certain employees laid off due to the COVID-19 pandemic. The ordinance, titled “Back to Work” emergency ordinance, requires that as certain employers reopen,  they must first seek to rehire the employee who previously held the position or a similar position before offering the position to another individual. This ordinance takes effect upon signature of the Mayor and will remain in effect for 60 days unless the Board of Supervisors votes to extend its application.

This new emergency ordinance applies to for-profit and non-profit employers that directly or indirectly own or operate a business in the City or County of San Francisco and employ, or have employed, 100 or more employees on or after February 25, 2020. The only employers exempted from the new ordinance are government entities and certain healthcare operations as defined under the Health Officer’s Order.

Employees are covered by the ordinance if they were employed for at least 90 days of the calendar year preceding a covered layoff. Covered layoffs are limited to any layoff of 10 or more employees in any 30 day period starting on February 25, 2020, until the expiration of the ordinance, and was caused by the employer’s lack of funds or lack of work due to the COVID-19 public health emergency declared by both the mayor of San Francisco and the governor of California.

Employers covered by the “Back to Work” emergency ordinance have the following obligations:

  • Employers must provide eligible employees with written notice of a covered layoff and the right to reemployment, at or before the time the layoff becomes effective. If a covered layoff has already occurred, the employer has 30 days from the effective date of the ordinance to provide written notice to eligible employees.
  • As employers reopen, they must first seek to rehire the employee who previously held the position, or a substantially similar position, before offering the position to another individual. Such offers of reemployment must be made in order of seniority if more than one eligible worker could be rehired for the same position. An employer is permitted to withhold an offer of rehire if after layoff it was discovered the employee engaged in any act of dishonesty, violation of the law, violation of policy, or rule of the employer. An employer may also withhold an offer of rehire if the employee executed a severance agreement at the time of layoff.
  • Employers must also notify the Office of Economic Workforce Development in writing of all covered layoffs and offers of reemployment made under the ordinance, as well as all acceptances and rejections of rehire offers by eligible employees.
  • Employers that implement covered layoffs must retain the following records for at least two years: eligible employee’s full legal name, job classification at the time of separation, date of hire, last known address, last known email address, last known telephone number and a copy of the lay off notice provided.
  • The ordinance prohibits employers from discriminating against an eligible employee who is experiencing a “Family Care Hardship”, which includes needing to care for a child due to school closures or lack of available childcare, or any grounds for which a person may use paid sick leave to care for another.  Eligible employees are entitled to reasonable accommodation of job duty or job requirements if a Family Care Hardship impacts their ability to perform a job duty or to satisfy a job requirement.  Employers must make a good faith effort to reasonably accommodate an eligible employee.  This duty to accommodate expires with the expiration of the ordinance.

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.

California has adopted the first nighttime work safety standards in the nation which apply to agricultural workers who harvest, operate vehicles, and other tasks between sunset and sunrise.

The new safety standards are being implemented to address potential workplace hazards caused by poor visibility and require employers to, at a minimum, evaluate each outdoor worksite to determine required lighting levels. Employers may also need to implement protective measures to improve the visibility of workers by operators of farm equipment and ensure workers have adequate lighting. The new standards set forth lighting levels required for specific operations and tasks. However, in setting up lighting for nighttime work, employers also need to address potential glare and ensure lighting setup does not present a new hazard for employees.

The standards also require that the supervisor conduct a safety meeting at the start of every shift to inform workers about the location of restrooms, drinking water, designated break areas, nearby bodies of water, and high traffic areas.

In addition to providing area lighting in some circumstances, employers are required to provide workers with high visibility garments that conform with national standards when required to perform work between sunset and sunrise.

The updated parameters take effect on July 1, 2020.

If employers have questions about workplace safety and Cal/OSHA compliance they should contact a Jackson Lewis attorney to discuss.

As businesses reopen, employers will almost certainly be faced with the potential of a COVID-19 outbreak in the workplace. In addition to the industry-specific guidance for reopening that the State of California has issued, the California Department of Public Health (the Department) recently issued guidance for employers responding to a COVID-19 outbreak in the workplace.

The guidance is intended to apply to all workplaces experiencing a workplace COVID-19 outbreak, exclusive of healthcare, congregate living, and other workplaces where the Cal/OSHA Aerosol Transmissible Disease (ATD) standard applies to control possible exposures to COVID-19. Employers should note that an “outbreak” can be defined differently by local public health orders. Therefore, employers should familiarize themselves with how the term is defined in their workplace jurisdiction, as well as jurisdictions in which employees reside.

To prepare for the possibility of an outbreak, employers also are encouraged to designate an infection prevention coordinator who will implement infection prevention procedures, develop mechanisms for tracking suspected and confirmed cases among employees, and ensure sick leave policies are generous and flexible enough to accommodate employees who must stay home sick.

The Department also advises employers should be prepared to share information with the local health department (LHD) should a known or suspected outbreak occur in the workplace. This can include notifying the LHD in the county where the positive employee resides—even if an employee resides in a jurisdiction outside of where the workplace is located. Employers may be asked to provide the LHD a roster of all employees in the jurisdiction where the workplace outbreak is occurring. The Department further recommends that employers communicate with the LHD on how frequently the LHD expects updates from the employer on newly identified cases and symptomatic employees in the workplace and during the outbreak.

The Department states that, in the event of a workplace outbreak, testing all employees in the workplace should be the first strategy considered for the identification of additional cases when needed to control workplace spread of COVID-19. Testing should be done with the assistance of the LHD. When testing is not available or recommended by the LHD, employers should consider alternative methods for controlling the outbreak, including contact tracing and advising close contacts of positive employees about home quarantine and isolation. The guidance emphasizes that employers must maintain the confidentiality of employees with suspected or confirmed COVID-19 infection when communicating with other employees. In addition, employers are directed to familiarize themselves with the requirements of reporting employee cases to Cal/OSHA, including reporting COVID-19 inpatient hospitalizations and deaths among employees.

The guidance also indicates that as part of the outbreak management, the LHD may recommend a strategy to the employer for allowing employees to return to work following a confirmed COVID-19 exposure. While the Centers for Disease Control and Prevention’s (CDC) most recent guidance on return to work should be considered, a strategy that may be recommended by the LHD consists of the following:

Symptomatic Positive

Employees with symptoms who are laboratory confirmed to have COVID-19

 At least 3 days (72 hours) have passed since recovery, defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and, at least 10 days have passed since symptoms first appeared.

Asymptomatic Positive

Employees who never had symptoms and are laboratory confirmed to have COVID-19

 

 A minimum of 10 days has passed since the date of their first positive COVID-19 test. If they develop symptoms, then the criteria for laboratory-confirmed cases with symptoms apply.

Symptomatic Negative

Employees who had symptoms of COVID-19, but test result returned negative

 Use the same criteria for return to work as laboratory-confirmed cases.

Asymptomatic Negative

Employees who never had symptoms, but were tested due to close contact with a laboratory-confirmed case-patient and were negative

 Employees should quarantine at home for 14 days after the last known close contact with the case-patient. Symptoms can develop even after testing negative within 14 days after exposure.

Symptomatic Untested

Employees who had symptoms of COVID-19 but were not tested

 Testing is highly recommended. If the employee cannot be tested, use the same criteria for return to work as laboratory-confirmed cases.

Asymptomatic Untested

Employees who had close contact with a laboratory-confirmed case patient at work, home, or in the community and do not have symptoms.

OR

Employees who refuse or are unable to be tested after close contact with a laboratory-confirmed case, despite a recommendation for testing from LHD or healthcare provider, and do not have symptoms.

Employees should be quarantined at home for 14 days after the last known close contact with the case patient

Employees who develop symptoms of COVID-19 while in quarantine should contact their healthcare provider. Even if they are not tested, the same criteria for return to work should be used as laboratory-confirmed cases.

Jackson Lewis is tracking state and local guidance pertaining to COVID-19. If you need assistance in developing reopening or response plans for COVID19, contact a Jackson Lewis attorney to discuss.

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.