This Friday’s Five focuses on five California employment related news items that got my attention this week:

1. California considering reinstating COVID paid sick leave in 2022.

As California’s supplemental paid sick leave expired in September 2021, and Governor Newsom decided not to extend it by executive order.  Now there are discussions of bringing COVID paid sick leave back, but there are still many questions about what this would look like, and who would be paying for it.  LA Democratic Assembly-member Wendy Carrillo is reported as intending to introduce a bill to provide for paid sick leave and will propose that the state use budget surplus money to pay for it.  Employers will have to watch to see how this issue develops.

Just as a reminder, California employers are currently required to pay for “exclusion pay” under the Cal/OSHA ETS which is, for the time being, in place until at least mid-April of 2022.

2. Employers still facing labor shortages and raising wages in 2022.

KTLA reports that “employees got about a 2.8% salary bump last year. At the beginning of 2022, companies were considering about a 3% raise, but are now looking at about 3.4%.”

3. California appellate court permits family member’s lawsuit to proceed against employer for injuries from employee allegedly bringing COVID-19 home from the workplace.

As set forth by the court, “Plaintiffs allege that Mrs. Ek, defendants’ employee, contracted COVID-19 at work because of defendants’ failure to implement adequate safety measures. They claim that Mr. Ek subsequently caught the disease from Mrs. Ek while she convalesced at home. He died from the disease a month later.” The court rejected defendant’s argument that the case was barred under the Workers’ Compensation Act derivative injury doctrine and will permit the lawsuit to proceed.  See’s Candies, Inc., et al. v. Superior Court of Los Angeles (Matilde Ek et al.)

4. 5 things to know about ordering free COVID tests (LA Times).

The LA Times provides some insights into the free COVID tests: the process is simple, plan ahead, and don’t just take the test for kicks.

5. CalSavers program is rolling out to smaller employers in 2022, and California has begun to issue citations for large employers who have not already complied.

California employers are required to register for the CalSavers retirement savings program.  Employers with over 100 employees were required to register by September 30, 2020, employers with more than 50 employees were required to register by June 30, 2021, and employers 5 or more employees must register by June 30, 2021.  The state has begun to issue citations, which start at $250 per employee, and can increase to $500 per employee.

On January 14, 2022, Cal/OSHA published fact sheets and updated its FAQs on COVID-19 Prevention Emergency Temporary Standards (ETS).  The fact sheets clarify the isolation and quarantine requirements for employers and employees (the image above is a portion of the fact sheet published by Cal/OSHA).  A major clarification from Cal/OSHA set forth that employees who are booster-eligible, but who have not yet received the booster, if exposed to someone with COVID-19 they do not need to quarantine as long as they are asymptomatic and must receive a negative test 3-5 days after the close contact.

Cal/OSHA’s updated FAQs can be found here.

The fact sheets can be found here:

Los Angeles County updated its requirements for employers who have employees working within the County.  This Friday’s Five highlights five issues employers in Los Angeles County should review (and the need to monitor for further updates that the County is currently working on):

1. Mask requirements

Los Angeles County sets forth that employers must now provide and require employees in close contact with others to wear a well-fitting medical grade mask, surgical mask, or higher-level respirator such as an N95 filtering facepiece respirator or KN95, at all times while indoors at the worksite or facility. Masks need not be worn indoors if the employee is alone in a room or actively eating or drinking. For a review of mask options, please visit this page.

2. Isolation and quarantine requirements

Los Angeles County recently updated its isolation and quarantine requirements on 1/13/22.  A chart of the various requirements depending on the employee’s test results and vaccination status can be found here.

3. Responding to COVID-19 in the workplace

LA County is updating their guidance on responding to COVID-19 in the workplace (the old page can be found here.  However, employers should monitor this page for updates, which the County notes is being completed.

4. Outbreak response

Employers have reporting obligations under Cal/OSHA ETS and under LA County requirements for outbreaks in the workplace.  Generally, an outbreak is defined as three or more laboratory-confirmed cases of COVID-19 are known or reported at the worksite within a 14-day period.  LA County’s requirements are listed here. However, it is recommended that employers routinely check this page for any potential updates regarding reporting obligations.

5. Remember to also comply with Cal/OSHA ETS

California employers with employees in Los Angeles must also remember to comply with the Cal/OSHA Emergency Temporary Standards (ETS).  The Cal/OSHA ETS were updated in December 2021 to include revisions related to returning to work after close contact. The revisions are effective starting on January 14, 2022. The latest order from the California Department of Public Health on January 5, 2022 requires the use of face coverings by all employees when indoors. More information on the COVID-19 Prevention Emergency Temporary Standards and the isolation and quarantine requirements is available here.

The Supreme Court blocked the Biden administration from enforcing its sweeping vaccine-or-test requirements for large private companies, but allowed a vaccine mandate to stand for medical facilities that take Medicare or Medicaid payments.  In this YouTube short, I briefly discuss how this will effect California employers.

Additional information about the Cal/OSHA ETS can be found on our YouTube Channel and on our blog.

[Updated to reflect guidance issued on January 14, 2022 – What Employers and Workers Need to Know About COVID-19 Isolation and Quarantine]

On January 6, 2022, Cal/OSHA issued updated FAQs to incorporate new isolation and quarantine recommendations from the California Department of Public Health (CDPH), which were also issued on January 6.

Until January 14, 2022, California employers subject to the ETS must follow the isolation and quarantine requirements set by the June 17, 2021 ETS.

As set forth in Cal/OSHA’s FAQs, on January 14, 2022, the CDPH’s recommendations set forth on January 6, 2022 will replace exclusion period and return to work requirements for all workers, and the following isolation and quarantine rules will apply to employers:

Exclusion requirements for employees who test positive for COVID-19 (isolation)

Any employees who test positive for COVID-19 (regardless of vaccination status, lack of symptoms or prior infections) must:

  • Be excluded from the workplace for at least 5 days
  • Isolation can end and employees may return to the workplace after day 5 if symptoms are not present or are resolving, and a diagnostic specimen (antigen test preferred) collected on day 5 or later tests negative.
  • If an employee is unable or chooses not to test and their symptoms are not present or are resolving, isolation can end and the employee may return to the workplace after day 10.
  • If an employee has a fever, isolation must continue and the employee may not return to work until the fever resolves.
  • If an employee’s symptoms other than fever are not resolving, they may not return to work until their symptoms are resolving or until after day 10 from the positive test.
  • Employees must wear face coverings around others for a total of 10 days after the positive test, especially in indoor settings.

Quarantine requirements for employees who are exposed to COVID-19 (quarantine)

Any employees who are unvaccinated (including those previously infected within the last 90 days) or who have been vaccinated and are booster-eligible but have not yet received their booster dose must:

  • Be excluded from the workplace for at least 5 days after their last close contact with a person who has COVID-19.
  • Exposed employees must test on day 5.
  • Quarantine can end and exposed employees may return to the workplace after day 5 if symptoms are not present and a diagnostic specimen collected on day 5 or later tests negative.
  • If an employee is unable or chooses not to test and does not have symptoms, quarantine can end, and the employee may return to the workplace after day 10.
  • Employees must wear face coverings around others for a total of 10 days after exposure, especially in indoor settings.
  • If an exposed employee tests positive for COVID-19, they must follow the isolation requirements above.
  • If an exposed employee develops symptoms, they must be excluded pending the results of a test.

However, exposed employees who are vaccinated and booster-eligible but have not received their booster yet and who are asymptomatic do not need to be excluded from work if:

  1. The employee receives a negative diagnostic test obtained within 3 to 5 days after last exposure to a case;
  2. The employee wears a face covering around others for a total of 10 days after exposure; and
  3. Employee continues to have no symptoms.

Employees who are exposed to COVID-19 are not required to quarantine if:

  1. The employees are boosted, or vaccinated, but not yet booster-eligible
  2. Must test on day 5 after exposure with a negative result. If employee cannot be tested, as of January 14, 2022, the employee does not have to quarantine but must wear a face covering and maintain six feet of distance from others for 14 days following the close contact.
  3. Wear face coverings around other for 10 days after exposure, especially in indoor settings.
  4. However, if the employee tests positive, they must follow the isolation recommendations above, and if the employee develops symptoms, they must be excluded pending the results of a test.

[Update: On January 6, 2022, Cal/OSHA issued updated FAQs on new isolation and quarantine requirements for California employers.  The update can be read here.]

On December 30, 2021, California Public Health Department (CPDH) issued revised guidance on COVID-19 isolation and quarantine procedures.  The revised guidance adopts some of the revised CDC recommendations issued on December 27, 2021, but still requires additional mitigation measures.

However, the CPDH notes in the updated guidance that employers are still required to follow Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (ETS) (or in some workplaces, the Cal/OSHA Aerosol Transmissible Diseases (ATD) Standard).  As of today, January 3, 2022, Cal/OSHA has not updated or changed its isolation and quarantine standards set forth in the ETS.

As a reminder, Cal/OSHA adopted revised ETS for California employers that will take effect on January 14, 2022.  This new ETS sets forth the following quarantine and isolation requirements for California employers:

Fully Vaccinated

The revised ETS requires fully vaccinated employees who have a close contact to be excluded unless they (1) do not develop symptoms, (2) wear a face covering and maintain six feet of distance from others for 14 days following the close contact.  The requirement that they must wear a face covering is a new requirement that was not included in the prior ETS.

Likewise, employees who have recovered from a COVID-19 infection in the prior 90 days and do not have symptoms, can return to work after a close contact as long as they wear a face covering and maintain six feet of distance from others for 14 days following the close contact.

Not Fully Vaccinated

Employees who have not been vaccinated, may return to work after a close contact if they do not develop symptoms, and 14 days have passed since the last known close contact.  However, if ten days have passed since the last known contact and the person wears a face covering and maintains six feet of distance from other for 14 days following the last close contact they may return to work.  They may also return to work if seven days have passed since the last known close contact and they test negative for COVID-19 with a specimen taken at least five days after the last known close contact, and the person wears a face covering and maintains six feet of distance from others at the workplace for 14 days following the last known close contact.

What are employers to do if the ETS provide more relaxed rules than the updated CDPH isolation and quarantine requirements?

There is no clear answer on how employers are to approach differences that permit employees to return to work under less stringent requirements under the ETS than under the revised CDPH requirements.  For example, the revised CDPH provides that individuals exposed to COVID-19 who have received their vaccination and booster shot (or are vaccinated but not yet eligible for the booster) do not need to quarantine if they do not have symptoms, must receive a test on day 5, and must wear a mask around others for 10 days.  However, as set forth above, the Cal/OSHA ETS effective on January 14 requires that employees who are exposed to COVID-19 and who have been fully vaccinated are not required to be excluded from work, and there is no requirement for the employee to receive a booster shot.  Are employers now required to track and document employee’s boosted status?  Are employers follow the more lenient requirements under the Cal/OSHA ETS if there is a conflict between the two?  Given these differences in the CDPH and Cal/OSHA guidance, Cal/OSHA will need to issue guidance to employers on the standard that is expected in the workplace.

Happy New Year!  2021 has been another challenging year for California employers.  COVID-related laws still predominate many issues facing California employers, from mandatory vaccinations, testing issues, and the various Federal, state and local requirements.  California employers face these COVID-19 issues in addition to the normal heavy regulatory and ever changing framework facing them.

This Friday’s Five focuses on the enormous amount of work put forth by our team at Zaller Law Group (ZLG) during 2021 in helping California employers deal and stay informed with these new legal developments.

Here are five highlights on how Zaller Law Group continued to support California employers in 2021:

1. 72 Blog Posts

The California Employment Law Report was a primary resource ZLG uses to provide updates about California employment law during the year.  Our blog will continue be one of the first places new legal issues that employers need to know about are posted.  If you are not already a subscriber, you can subscribe to the blog here:  https://www.californiaemploymentlawreport.com/subscribe/

2. Over 15 webinars conducted

We hosted a number of webinars through our Firm, as well as in partnership with Cal/OSHA, the California Restaurant Association, and the San Bernardino Economic Development department, among other groups.  These webinars were a great source of information for California employers to stay informed about California’s quickly developing issues.

We also started the Executive Leadership Insights webinar, during which we had distinguished guests from companies such as Urban Plates (Mike Connelly – VP of Operations); Specialty Restaurants Corporation (John Tallichet – President and CEO), Flynn Restaurant Group (Maya Ohana – Senior Counsel), Hello Bello (Erica Buxton – President), and Nolan Bushnell (founder of Atari and Chuck E. Cheese).  The best way to be informed about any upcoming webinars is to subscribe to the blog here (subscribers to the blog are notified of webinars available to the public).

3. 51 YouTube Videos

There were over 47,000 views of the Firm’s video content.  On YouTube, the watch time consisted of over 1,900 hours, over 1,650 subscribers to the channel: Employment Law Report – YouTube.

4. 16 Podcast Episodes

Our podcast, Zaller Talk, is available on most podcast platforms, such as Spotify and iTunes.

My favorite episode in 2021 was my discussion with Madelyn Alfano, founder of Maria’s Italian Kitchen.

5. 9 employees of Zaller Law Group.

The work described above is a testament to the dedication of the attorneys and staff at Zaller Law Group on how hard the team works to reach these accomplishments in 2021 – especially considering that this work is in addition to the normal litigation obligations the team provides in defending employers in court.

Wishing everyone the best this year, and we look forward to assisting California employers in successfully navigating California employment laws in 2022!

As special opportunity for readers of my blog – we are giving away 9 free copies of Gary Vaynerchuk’s new book, Twelve and a Half.  This new book is an essential read for CEO’s and human resource professionals.  In the book, Gary explains why “soft skills,” often referred to as emotional intelligence, are critical for leaders today.  These skills, such as empathy, self-awareness, and patience, are not taught in business schools, cannot be tracked on a spreadsheet, and are often only given lip service in organizations – yet they are critical for individual success, as well as creating an organizational culture that values each employee, and balances kind candor with accountability by constructive feedback for improvement.  Twelve and a Half is a great book for leaders to start off 2022 on the right foot.  For your free copy (and we will also cover shipping), you must be a subscriber to the blog, and be one of the first 9 people that register here.

Good luck!

Merry Christmas!  With the end of the year, it is a perfect time for companies to conduct a California employment law practices audit to ensure that policies are compliant, managers are properly trained, and the company is maintaining the required records for the necessary length of time.  Here are five topics to review in conducting an audit and a few suggested questions for each topic:

1. Hiring Practices

  • Are applications seeking appropriate information?
    • Ensure compliance with state and local ban the box regulations.
  • Are new hires provided with required policies and notices?
  • Are new hires provided and acknowledge recommended policies?
    • For example: meal period waivers for shifts less than six hours
  • Are hiring managers trained about the correct questions to ask during the interview?
  • Does the company provide new hires (and existing employees) with arbitration agreements that comply with California law?

 2. Records

  • Are employee files maintained confidentially and for at least four years?
  • Are employee time records maintained for at least four years?
  • Are employee schedules maintained for at least four years?
  • Do the managers have set forms for the following:
    • Employee discipline and write-ups
    • Documenting employee tardiness
  • How is the employee documentation provided to Human Resources or the appropriate manager?
  • Who is involved in reviewing disability accommodation requests?
  • How are employee absences documented?

3. Wage and Hour Issues

  • Does the company have its workweeks and paydays established?
  • Are paydays within the applicable time limits after the pay period as required under the law?
  • Are employees provided with compliant itemized wage statements?
  • Are employees provided a writing setting out their accrued paid sick leave each pay period?
  • Are employees properly classified as exempt or nonexempt?
    • For exempt employees, review their duties and salary to ensure they meet the legal requirements to be an exempt employee.
  • Any workers classified as independent contractors, and if so, could they be considered employees under AB 5?
  • Are nonexempt employees properly compensated for all overtime worked?
  • Is off-the-clock work prohibited?
    • Policy in place?
    • Are managers trained about how to recognize off-the-clock work and what disciplinary actions to take if find employees working off-the-clock?
  • Does the company’s time keeping system round employee’s time?
    • If so, is the rounding policy compliant with the law? (note that meal breaks cannot be rounded pursuant to Donohue v. AMN Services)
  • Are meal and rest period policies set out in handbook and employees routinely reminded of policies?
    • Does the company pay “premium pay” for missed meal and rest breaks? If so, how is this documented on the employee pay stub?
    • Do employees record meal breaks?
    • Are managers trained on how to administer breaks and what actions to take if employees miss meal or rest breaks?
    • Are employees provided attestations to document the reason if the employee missed, took a short, or a late meal break? (See Donohue v. AMN Services)
  • Is vacation properly documented, tracked, and is unused vacation paid out with the employee’s final paycheck?
  • Are all deductions from the employee’s pay check legally permitted?
  • Are employees reimbursed for all business expenses, such as uniforms, work equipment, mileage for work, and for expenses incurred for working from home during COVID-19 (such as internet, cell phones, etc.)?

 4.End of Employment Issues

  • Are employees leaving the company provided their final wages, including payment for all accrued and unused vacation time?
  • Are final paychecks provided to employees within the required deadlines?
  • Does the employer deduct any items from an employee’s final paycheck?
    • If so, are the deductions legally permitted? (use caution, very few deductions are permitted under CA law)

5. Anti-harassment, discrimination and retaliation

  • Are supervisors provided with sexual harassment training every two years? (If employer has 50 or more employees, supervisors are legally required to have a two-hour harassment prevention training that complies with California law).
  • Are there steps in place to provide nonsupervisory employees with 1 hour sexual harassment prevention training and once every 2 years thereafter? (required for employers with 5 or more employees)
  • Are supervisors and managers discussing the company’s open-door policy to employees at routine meetings with employees? Is this being documented?

Cal/OSHA readopted the COVID-19 Prevention Emergency Temporary Standards (ETS) on December 16, 2021.  While a large portion of the existing ETS remains in place, there were a few changes made in this newly adopted ETS.  The new ETS approved on December 16 will take effect on January 14, 2022.  This Friday’s Five provides a summary of some of key revisions employers must be aware of:

1. Testing requirements are modified.

The revised ETS provide that an acceptable COVID-19 test cannot be self-administered and self-read.  The employer or an authorized telehealth proctor must observe a self-administered test for it to qualify as a COVID-19 test under the ETS.

The revised ETS obligates employers to provide testing to employees if they have had a close COVID-19 contact, even if they are fully vaccinated.  This is a change from the prior version of the ETS that did not require employer to provide testing to employees who were fully vaccinated.

The revised ETS also requires employers to provide testing at no costs to all employees during an outbreak, even those who were fully vaccinated.  The prior version of the ETS did not require employers to provide testing to fully vaccinated employees who did not have symptoms during an outbreak.

2. Face covering definition has been updated (in addition to California’s updated mask mandate in place from December 15, 2021 through January 15, 2022).

The definition for face covering was updated to include a requirement that the face covering is made of “fabrics that do not let light pass through when held up to a light source.”  These include surgical mask, medical procedure masks, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least tow layers.  Gaiters are permitted if they have “two layers of fabric or be folded to make two layers.”

Separate from the ETS, California’s Department of Public Health implemented a new mandate on face coverings, requiring all individuals, vaccinated and unvaccinated, to wear a mask in all indoor public settings in California.  The guidance applies to workplaces regardless of whether they serve the public or are open to the public.  This requirement is in place from December 15, 2021 through January 15, 2022.  More information about the face covering requirements, visit the CDPH website here.

3. Worksite definition is clarified.

The ETS clarified in the definition of “worksite” that it does not include “location where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence or alternative work location chosen by the worker when working remotely.”  This revised definition potentially narrows the number of employees that notice must be provided when there is COVID-19 at the workplace.

4. Requires face coverings during screenings, even for vaccinated people.

Under the revised ETS, employers must ensure that workplace screeners and employees being screened for COVID-19 must wear face coverings.  The prior version of the ETS permitted the screeners and employees not to wear face coverings if they were fully vaccinated.

5. Exclusion from the workplace requirements modified.

In terms of employer’s obligations to exclude employees from the workplace, the revised ETS changed these requirements:

Fully Vaccinated

The revised ETS requires fully vaccinated employees who have a close contact to be excluded unless they (1) do not develop symptoms, (2) wear a face covering and maintain six feet of distance from others for 14 days following the close contact.  The requirement that they must wear a face covering is a new requirement that was not included in the prior ETS.

Likewise, employees who have recovered from a COVID-19 infection in the prior 90 days and do not have symptoms, can return to work after a close contact as long as they wear a face covering and maintain six feet of distance from others for 14 days following the close contact.

Not Fully Vaccinated

Employees who have not been vaccinated, may return to work after a close contact if they do not develop symptoms, and 14 days have passed since the last known close contact.  However, if ten days have passed since the last known contact and the person wears a face covering and maintains six feet of distance from other for 14 days following the last close contact they may return to work.  They may also return to work if seven days have passed since the last known close contact and they test negative for COVID-19 with a specimen taken at least five days after the last known close contact, and the person wears a face covering and maintains six feet of distance from others at the workplace for 14 days following the last known close contact.

Employers are reminded that the other portions of the prior ETS will still be in place.  For example, employers must still develop a written COVID-19 Prevention Program, provide training to employees, provide certain COVID-19 disclosures to employees, and pay exclusion pay to employees excluded from work due to a workplace exposure.