On January 8, 2021, Cal/OSHA updated the Frequently Asked Questions pertaining to its COVID-19 Emergency Temporary Standards (ETS).  For some background on the ETS, see our prior posts here.  California employers need to continue to adjust their practices to ensure compliance with this updated guidance from Cal/OSHA.  The complete FAQs can be found here.  Below is a selection of some of the updated FAQs as they pertain to five issues that raise many questions for employers:

1. Enforcement and Employer’s Good Faith Efforts To Comply with the ETS

Question 10: How will Cal/OSHA enforce the ETS as employers implement the rule? 
A:All employers are expected to comply with all provisions of the ETS, and Cal/OSHA will enforce the ETS, taking into consideration an employer’s good faith efforts to comply.

In addition to consideration of an employer’s good faith effort to comply before issuing a citation, for the first two months the rules are in effect (i.e., through  February 1, 2021), Cal/OSHA will cite but not assess monetary penalties for violations of the ETS that would not have been considered a violation of the employer’s Injury and Illness Prevention Program, respiratory protection program or other applicable Cal/OSHA standard in place prior to November 30, 2020. This brief period of relief from monetary penalties will allow Cal/OSHA and employers to focus on obtaining compliance, while ensuring workers still benefit from the protections in the ETS. This policy will not apply where an employer fails or refuses to abate a violation of the ETS Cal/OSHA has identified, or in the case of imminent hazards.

2. Impact of Vaccinations Received by Employees

Question 24: Once an employee is vaccinated, must the ETS still be followed for vaccinated persons?
A: For now, all prevention measures must continue to be implemented. The impact of vaccines will likely be addressed in a future revision to the ETS.

3. Testing Requirements and Determination of Outbreaks or Major Outbreaks

Question 30: Can employers send their employees to a free testing site for testing (e.g., run by their county) and is this considered to be “at no cost to employees?”
A: Yes, as long as employees incur no cost for the testing. Ensuring that an employee does not incur costs would include paying employees’ wages for their time to get tested, as well as travel time to and from the testing site. It would also include reimbursing employees for travel costs to the testing site (e.g., mileage or public transportation costs).

Question 45: How can an employer measure the 14- or 30-day period in which to look for positive cases to determine if there has been an outbreak or major outbreak?
A:
The employer should look to the testing date of the cases. Any cases for which the tests occurred within a 14-day period would be reviewed to see if the other criteria for an outbreak have been met.

4. When Employees May Return to Work

Question 49: What are the criteria for an employee exposed to a COVID-19 case in the workplace to return to work?
A: Applying Executive Order N-84-20 and current CDPH quarantine guidance, while a 14-day quarantine is recommended, an exposed employee who does not develop symptoms of COVID-19 may return to work after 10 days have passed since the date of last known exposure. Additionally, CDPH has provided guidance permitting health care, emergency response and social services workers to return to work after 7 days with a negative PCR test result collected after day 5 when there is a critical staffing shortage.”

5. Employer’s Obligation to Pay “Exclusion Pay”

Question 52: Does an employer have to “maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job” if the employee is unable to work because of his or her COVID-19 symptoms?
A: No, if an employee is unable to work because of his or her COVID-19 symptoms, then he or she would not be eligible for exclusion pay and benefits under section 3205(c)(10)(C). The employee, however, may be eligible for Workers’ Compensation or State Disability Insurance benefits.

Question 53: How long does an employee with COVID-19 exposure, or who tests positive for COVID-19 from the workplace, receive pay while excluded from the workplace?
A: An employee would typically receive pay for the period the employee is quarantined, which could be up to 14 days (see above for potential impact of EO N-84-20). If an employee is out of work for more than a standard quarantine period based on a single exposure or positive test, but still does not meet the regulation’s requirements to return to work, that extended quarantine period may be an indication that the employee is not able and available to work due to illness. The employee, however, may be eligible for temporary disability or other benefits.

There is still some confusion regarding the new Cal/OSHA Emergency Temporary Standards (ETS) that became effective on November 30, 2020 (we have written about the ETS previously here).  Here are five critical questions employers must consider about the ETS and their impact on the workplace:

1. What new reporting obligations do employers have under the ETS?

  • Employers must notify their local health department immediately but no longer than 48 hours after the employer knows or should have known of three or more COVID-19 cases.
  • Cal/OSHA must be notified when a COVID-19-related serious illness (such as a COVID-19 illness requiring inpatient hospitalization) or death occurs.

2. What investigation obligations do employers have regarding COVID-19 cases in the workplace?

The ETS requires employers to:

  • Develop an effective procedure to investigate COVID-19 cases in the workplace. This includes procedures for verifying COVID-19 case status, receiving information regarding COVID-19 test results and onset of COVID-19 symptoms, and identifying and recording COVID-19 cases.
  • For positive cases at the place of employment, employers need to:
    • Determine the day and time the COVID-19 case was last present, and to the extent possible, the date of the positive tests and/or diagnosis, and the date the COVID-19 case first had one or more COVID-19 symptoms, if any were experienced.
    • Determine who may have had a COVID-19 exposure and evaluate whether any employees need to be excluded from the workplace.
    • Give notice of the potential exposure to employees/independent contractors/other employers present at the workplace within one business day (employers must also comply with the written notice requirements of AB 685 as of January 1, 2021).
    • Offer testing at no cost to employees during their working hours to all employees who had potential COVID-19 exposure in the workplace.
    • Investigate if any workplace conditions contributed to the risk of COVID-19 exposure and what could have done to reduce this exposure.

3. What written plan must employers have to comply with the ETS?

To comply with the ETS, an employer must develop a written COVID-19 Prevention Program or ensure these elements are included in an existing Injury and Illness Prevention Program (IIPP).

The employer must implement the following:

  • Communication to employees about the employer’s COVID-19 prevention procedures
  • Identify, evaluate and correct COVID-19 hazards
  • Physical distancing of at least six feet unless it is not possible
  • Use of face coverings
  • Use engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk
  • Procedures to investigate and respond to COVID-19 cases in the workplace
  • Provide COVID-19 training to employees

4. How do employers calculate the rate of pay for employees who are entitled to continued earnings?

Over a month after the ETS when into effect, Cal/OSHA has not issued any guidance on how employers are to make this calculation.  As a reminder, the ETS require that employees who tests positive or have been exposed to COVID-19, are excluded from the workplace, and who are “otherwise able and available to work” must continue to have their “earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job.”  Employers are permitted to apply their sick leave benefits towards this purpose and may consider benefit payments from public sources in making this calculation.  However, the calculation of an employee’s earnings can be difficult based on a number of factors.  For example, the calculation is particularly difficult for employees who work a variable schedule.  Hopefully, Cal/OSHA will be able to provide guidance on this requirement soon.

5. When must an employer provide COVID-19 testing to employees?

Employers must provide testing for employees when (1) the employee had a potential exposure in the workplace and (2) all employees at the “exposed workplace” during an outbreak (defined as 3 or more cases within a 14-day period).  During an “outbreak,” employees must be tested immediately, again one week later, and then administer continuous testing of employees who remain at the workplace at least once a week.

Happy New Year!  No doubt 2020 has been a challenging year for California employers.  There were many new COVID-related laws to deal with from whether certain companies could continue to operate, testing issues for employees, and the various Federal, state and local paid sick leave requirements.

This Friday’s Five focuses on the enormous amount of work put forth by our team at Zaller Law Group (ZLG) during 2020 in helping California employers deal with the new and ever-changing laws related to COVID-19, in addition to keeping informed about the usual California employment law developments.  2020 kept the attorneys and staff at the Firm on their toes, and the highlights below show how our lawyers and staff were able to step up and assist employers during this difficult year (and while working most of the time from their homes).

Here are five highlights on how Zaller Law Group was supporting California employers:

1. 94 Blog Posts

The California Employment Law Report was a primary resource ZLG used to provide updates about California employment law during the year.  The blog will continue be one of the first places new updates are first posted.  Readers can subscribe to the blog here.  https://www.californiaemploymentlawreport.com/subscribe/

2. 51 Podcast Episodes

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

My top two favorite episodes for 2020 were the interviews I had with Loraine Salazar, co-owner of Sal’s Mexican Restaurants, and Joseph Pitruzzelli, founder and owner of Wurstkuche.

3. 134 YouTube Videos

There were over 85,000 views of the Firm’s video content.  On YouTube, the watch time consisted of over 4,000 hours, and there were over 500 new subscribers to the channel in 2020: Employment Law Report – YouTube.

4. Over 35 webinars conducted

The attorneys at the Firm were outstanding in quickly preparing easy to understand summaries of developing issues throughout the year.  Some of the webinars were planned with less than 24 hours to deal with new developments for California employers.  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).

5. 8 employees of Zaller Law Group (our 9th is starting January 4 – but more on this later).

It is a testament to the dedication of the attorneys and staff at Zaller Law that this relatively small team could do so much during 2020 – especially considering that this work is in addition to the normal litigation obligations the team has 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 2021!

On December 1, new Cal/OSHA Emergency Temporary Standards (ETS) went into effect, creating a host of new COVID-19 obligations for employers. Included in the ETS regulations are specific testing procedures, training and prevention protocols, and recordkeeping and reporting requirements. The ETS regulations include several controversial provisions, including stringent 14-day exclusion requirements for asymptomatic close contacts and a mandate that, with limited exceptions, employers “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits” for employees excluded from the workplace under the ETS regulations. (On December 14, the Governor issued an Executive Order easing the 14-day exclusion mandate, such that most asymptomatic close contacts may return after 10 days.)

Predictably, the Cal/OSHA ETS regulations have now been challenged in court. On December 16, the National Retail Federation, National Federation of Independent Businesses, and three California employers filed suit in state court in San Francisco. The plaintiffs assert that “California employers have established rigorous and science-driven safety measures, often at great expense,” to make workplaces safe,” and that the Cal/OSHA ETS regulations violate California law and are unconstitutional.

The plaintiffs make several arguments, including:

  • The ETS regulations were adopted without adequate public notice or hearing in violation of the California Administrative Procedure Act;
  • By requiring employers to maintain earnings of excluded employees, the ETS regulations seek to regulate wages and paid leave in excess of Cal/OSHA’s jurisdiction;
  • Because the enhanced “outbreak” testing protocols are triggered by three cases in a 14-day period, regardless of whether the employer has 5 employees or 500 employees, the ETS regulations are arbitrary and capricious;
  • The exclusion and pay requirements pose a threat to the viability of smaller employers;
  • The ETS regulations were adopted contrary to internal staff findings that the regulations were unnecessary and unsupported by science; and
  • the ETS regulations deprive employers of property without just compensation or due process.

The complaint seeks a declaratory judgment invalidating sections 3205(c)(10) [requiring exclusion of employees while maintaining earnings], 3205(c)(3)(b)(4.) [requiring employers to offer testing during “working hours” for close contact employees after workplace exposure], 3205.1(b) [requiring weekly workplace testing after a workplace “outbreak”], 3205.2(b) [requiring enhanced testing after a “Major COVID-19 outbreak”], and 3205.3(g) [requiring testing related to employer-provided housing].

As of this post, a case management conference is set for May 19, 2021.  However, as the complaint also requests a temporary restraining order and preliminary injunction, expect the plaintiffs to fie a motion in the near future seeking to enjoin enforcement of the challenged provisions while the case proceeds. Employers should continue to comply with the ETS regulations for the time being.

As we approach 2021, 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 areas to start with in conducting an audit and a few recommended 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 with class action waivers?

 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?
  • 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?
  • 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? (use caution, very few deductions are permitted under CA law)
  • 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?
  • Does the employer deduct any items from an employee’s final paycheck?
    • If so, are the deductions legally permitted?

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 by January 1, 2021 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?

On December 16, 2020, the EEOC issued guidance on employer-mandated COVID-19 vaccinations.  The requirement by employers for employees to receive vaccinations raises many issues dealing with privacy, the extent of control employers have over employees, and workplace safety, among others.  Here are five issues employers should understand about the new EEOC guidance:

1. Can employers require employees to receive a COVID-19 vaccine?

The guidance does not explicitly answer this question.  However, the guidance discusses various questions related to an employer’s mandated vaccination, and therefore, implicitly permits employers to require vaccinations.  See question K.2. (“If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, are these questions subject to the ADA standards for disability-related inquiries?”), K.3. (“Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?”) and K.5

2. Employers must still provide reasonable accommodations to employees who is unable to receive a COVID-19 vaccination.

The guidance explains that employers must provide reasonable accommodations to employees who refuse to be vaccinated because of a disability (see question K.5.)  or their sincerely held religious practice or belief (see question K.6.).

3. Employers must protect confidential medical information obtained from employees.

The EEOC guidance explains that while the vaccination itself is not a medical examination, pre-screening vaccination questions may illicit information about an employee’s disability (see questions K.1. and K.2.).  Therefore, if the vaccination is required by the employer, the employer must establish that the disability-related questions are “job-related and consistent with business necessity.”  The EEOC guidance explains, “To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”  This job-related requirement does not have to be met if the vaccination is voluntary or if a third-party (such as a pharmacy or other healthcare provider) administers the vaccination.

The EEOC guidance also reminds employers that the ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

4. Can employers exclude employees who refuse to be vaccinated from work?

To the extent that a vaccination requirement “screens out or tends to screen out an individual with a disability, the employer must show that the unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’”  To make this determination, employers would need to assess four factors: the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.  The EEOC notes that if there is a direct threat that cannot be reduced to an acceptable level, then an employer may exclude the employee from the workplace.  But it does not mean the employee may automatically be terminated, and the employer will need to examine other accommodations that could be made available to the employee, such as remote work.  The direct threat standards can be difficult to analyze and implement, so employers need to approach this carefully and should seek the help of employment counsel.

5. California employers need to consider California law as well.

Before implementing any mandatory vaccination requirements, California employers will need to address the current status of California state law, as well as local laws.  In addition, there are many other California specific questions regarding if employers who require their employees to be vaccinated must pay for the vaccination and time to receive the vaccination.  Employers need to approach the issue with caution and continue to monitor the laws.

As 2020 comes to an end, it is a great time to audit employment policies and practices.  Obviously, it is important to work with a qualified attorney to ensure compliance, but I wanted to highlight a few issues on these topics that employers can use to start a self-audit that then can be used to save time and money when reviewing with an attorney.

Five areas to audit regarding the hiring process in California:

1. Are applications seeking appropriate information?

2. Are new hires provided with required policies and notices?

3. Are new hires provided and recommended policies?

For example, many employers implement the following policies:

    • meal period waivers for shifts less than six hours
    • arbitration agreements
    • any other specific policy or notice required for the employer’s industry

4. Are hiring managers trained about the correct questions to ask during the interview?

5. Are the required posters properly displayed and translated?

The DFEH website sets forth the following explanation regarding displaying posters:

Any required Department of Fair Employment and Housing posters must be conspicuously displayed where they can be easily seen and read by all employees and job applicants. The text has to be large and legible enough to be easily read when posted.

Posters must be displayed at the following places:

  • At each location where a company has employees – offices, stores, warehouses, branches, etc.
  • At employment agencies, hiring offices and union halls.
  • On computers as long as the posters are posted electronically in a conspicuous place where employees will tend to see it.

If 10 percent or more of a company’s workforce speaks a language other than English, the posters must also be displayed in that language (or languages). DFEH provides translated posters in several languages, available in the posters, guides and fact sheets section of our website. We will work with an employer if other translations are needed.

Free copies of workspace posters can be downloaded from the posters, guides and fact sheets section of our website.

On November 30, 2020, California’s Office of Administrative Law approved Cal/OSHA’s emergency standards setting forth new requirements for California employers. Under the new requirements employers must develop a written COVID-19 prevention program, train employees, provide personal protective equipment to employees, provide certain information to employees, and abide by record keeping and new reporting requirements. Here are five issues California employer must review in order to comply with the new requirements:

1. Applies to most California employers staring November 30, 2020

The new emergency regulations apply to most California employers, except:

  • Workplaces where there is only one employee who does not have contact with other people
  • Employees who are working from home
  • Employees who are covered by the Aerosol Transmissible Diseases regulation

The effective date for the regulations is November 30, 2020.  While the regulations were imposed on employers with very little notice, Cal/OSHA recognizes that it will take employers some time to comply with the regulations and will recognize employer’s “good faith efforts in working towards compliance, but some aspects, such as eliminating hazards and implementing testing requirements during an outbreak, are essential.”

2. Workplace prevention steps

The new regulations require employers to take certain steps in regards to COVID-19 in the workplace, such as:

  • Develop a written COVID-19 Prevention Program or ensure its elements are already present in an existing Injury and Illness Prevention Program (IIPP). Cal/OSHA has posted a model COVID-19 Prevention Program to help employers start developing their program.
  • Physical distancing protocols
  • Face coverings protocols
  • Engineering controls such as setting up partitions and maximizing outside air
  • Administrative controls such as: establishing cleaning procedures, inform employees of cleaning procedures, minimize sharing of tools, equipment and vehicles, cleaning of areas during “high risk period” after positive COVID-19 case, provide time for hand washing and providing hand sanitizer
  • Personal protective equipment: evaluate need for PPE, provide eye and respiratory protection for employees exposed to procedures that aerosolize saliva or other potentially infectious materials (such as some dental procedures)

3. Training required for employees

The emergency regulations also require employers to provide training to employees for certain subjects, such as:

  • Employer policies and procedures
  • COVID-19 related benefit information: such as that posted the Department of Industrial Relations’ Coronavirus Resources webpage
  • Information about COVID-19 and its spread
  • Importance of physical distancing and wearing face coverings
  • Cal/OSHA is updating its website to provide training resources for employers

4. Addressing COVID-19 in the workplace

Cal/OSHA also set forth new requirements for employers to address positive cases and exposure in the workplace, including:

  • Investigate and respond to COVID-19 cases in the workplace: determine when COVID-19 was last in the workplace, and if possible the date of testing and onset of symptoms; determine which employees may have been exposed; notifying employees of any potential exposure within one business day; offer testing to employees potentially exposed; investigate and correct any issues at the workplace that may have contributed to the risk of exposure
  • Testing obligations: inform employees about how to be tested; offer testing to an employee potentially exposed at the workplace at no cost to the employee during work hours; provide periodic testing to employees in an “exposed workplace” during an outbreak; maintain employee confidentiality during testing
  • In a non-outbreak setting, employers must determine if an employee was exposed to COVID-19 if they were within 6 feet of a COVID-19 case for a cumulative of 15 minutes within any 24-hour period during the “high risk exposure period”, which is:
    • For COVID-19 cases who develop COVID-19 symptoms, from two days before they first develop symptoms until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
    • For persons who test positive but never develop COVID-19 symptoms, from two days before until ten days after the specimen for their first positive test for COVID-19 was collected.

“Exposed workplace” is defined by Cal/OSHA as:

An exposed workplace is a work location, working area, or common area used or accessed by a COVID-19 case during the high-risk period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas. If, within 14 days, three COVID-19 cases share the same “exposed workplace,” then the Multiple COVID-19 Infections and COVID-19 Outbreaks standard (section 3205.1) applies and additional testing will be required. When determining which areas constitute a single “exposed workplace” for purposes of enforcing testing requirements, Cal/OSHA does not expect employers to treat areas where masked workers momentarily pass through the same space without interacting or congregating as an “exposed workplace,” so they may focus on locations where transmission is more likely.

An “outbreak” is defined as three or more COVID-19 cases in an “exposed workplace” within a 14-day period or as identified as an outbreak by the local health department.  During an “outbreak” employers must:

  • Comply with all non-outbreak requirement
  • Immediately provide testing to all employees in the exposed workplace and exclude positive cases and exposures from work and repeat testing one week later, and
  • Continue testing employees at least weekly until the workplace is no longer qualifies as an outbreak.

Other requirements apply to a “major outbreak” which is defined as 20 or more COVID-19 cases in an “exposed workplace” within a 30-day period.

The regulations set out that a COVID-19 case may return to work when any of the following occur:

  • For employees with symptoms all of these conditions must be met:
    1. At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
    2. COVID-19 symptoms have improved; and
    3. At least 10 days have passed since COVID-19 symptoms first appeared
  • For employees without symptoms, at least 10 days have passed since the COVID-19 case’s first positive test
  • If a licensed health care professional determines the person is not/is no longer a COVID-19 case, in accordance with California Department of Public Health (CDPH) or local health department recommendations

Employees who have been exposed to COVID-19 may return to work 14 days after the last known exposure.

A negative COVID-19 test shall not be required for an employee to return to work.

The emergency temporary standards and the Cal/OSHA FAQs set forth that employers must pay an employee who is excluded from work for COVID-19 reasons, but is otherwise able and available for work.  The FAQs provide that:

If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments. (Please refer to the Labor Commissioner’s COVID-19 Guidance and Resources for information on paid sick leave requirements.). These obligations do not apply if an employer establishes the employee’s exposure was not work-related.

This new obligation has raised many concerns, as well as questions about Cal/OSHA’s ability to require pay for employees excluded from work.  This is one of many issues that will likely be addressed during the stakeholder meeting in December that will incorporate feedback into potential updates of the standards.

5. Record keeping and reporting requirements

Employers are required to keep records under the emergency temporary standards, such as:

  • Follow state and local health department reporting requirements.
  • Contact the local health department when there are three or more COVID-19 cases in the workplace within a 14-day period and must provide the following information:
    • Total number of COVID-19 cases.
    • For positive cases, the name of the employee, contact information, occupation, workplace location, business address, hospitalization and/or fatality status, and North American Industry Classification System code of the workplace of the COVID-19 case.
    • Any other information required by the local health department.
  • Recording and tracking all COVID-19 cases and recording certain information for these cases. Employers must remember to keep medical information confidential.

Cal/OSHA may be modifying the emergency temporary standards in December, so it is important for employers to continue to monitor Cal/OSHA’s website for updates.  Cal/OSHA’s FAQs can be found here, a one-page fact sheet can be found here, and future training webinars through Cal/OSHA will be posted here.

SB 973, a new California law passed in September 2020, created a new obligation for California employers to annually submit pay data report to the Department of Fair Employment and Housing (DFEH).  The DFEH has recently published a frequently asked questions page clarifying some questions about SB 973.  Here are five issues California employers must understand about this new reporting requirement:

1. Who must report pay data?

Private employers with 100 or more employees and who are required to file an annual Employer Report (EEO-1) under federal law are required to submit the payroll data to the DFEH.  The DFEH provides that the determination of 100 or more employees is made “if the employer either employed 100 or more employees in the Snapshot Period chosen by the employer or regularly employed 100 or more employees during the Reporting Year.”  The “Snapshot Period” is a single pay period between October 1 and December 31 of each year.

The DFEH states that an employer who has a three-month season during a calendar year and employs 100 or more employees during that season, would be deemed to have employed 100 or more employees, and must from the pay data report with the DFEH (as long as the employer is required to file the federal EEO-1 Report as well).

Employers with some employees working in California must count all employees, including those outside of California, in determining whether it reaches the 100 employee threshold.  Part-time employees are counted as if they were a full-time employee in determining the 100 employee threshold.  In addition, employees on leave, such as CFRA leave, pregnancy leave, disability leave, disciplinary leave, must also be counted.

2. What information must be reported?

Currently, the DFEH intends to collect the following information:

  1. The number of employees by race, ethnicity, and sex in each of the following ten job categories: Executive or senior level officials and managers; First or mid-level officials and managers; Professionals; Technicians; Sales workers; Administrative support workers; Craft workers; Operatives; Laborers and helpers; and Service workers. For purposes of establishing the numbers required to be reported under this paragraph (1), an employer shall create a “Snapshot” that tabulates the number of the individuals in each job category by race, ethnicity, and sex, employed during the Snapshot Period (see previous FAQ “What is the Snapshot Period?”).
  2. The number of employees by race, ethnicity, and sex, whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey. For purposes of establishing the numbers to be reported under this paragraph (2), the employer shall identify the total earnings during the Reporting Year, as shown on the Internal Revenue Service Form W-2, for each employee in the Snapshot, regardless of whether the employee worked for the full calendar year. The employer shall tabulate and report the number of employees whose W-2 earnings during the Reporting Year fell within each pay band.
  3. The total number of hours worked by each employee counted in each pay band during the Reporting Year.
  4. The Reporting Year, the dates of the Snapshot Period selected by the employer, the report type (establishment report or consolidated report), and the total number of reports being submitted by the employer.
  5. The employer’s name, address, headquarters’ address (if different), Employer Identification Number, North American Industry Classification System (NAICS) code, Duns and Bradstreet number, number of employees inside and outside of California, number of establishments inside and outside of California, and whether the employer is a California state contractor. If applicable, the name and address of the employer’s parent company or parent companies.
  6. For a multiple-establishment employer’s establishment reports, the establishment’s name, address, number of employees, and major activity.
  7. For a multiple-establishment employer’s consolidated report, the names and addresses of the establishments covered by the consolidated report.
  8. Any clarifying remarks.
  9. A certification that the information contained in the pay data report is accurate and prepared in accordance with Government Code section 12999 and DFEH’s instructions, and the name, title, signature, and date of signature of the certifying official.
  10. The name, title, address, phone number, and email address of someone who can be contacted about the report.

The FAQs also provide that pay data must also be included for employees who are teleworking outside of California but who are “assigned to an establishment in California.”

3. When must the payroll data be reported by?

Under Government Code section 12999(a), employers must submit their pay data reports to DFEH on or before March 31, 2021, and then on or before March 31 each year thereafter.

4. Why is pay data being collected by the state of California?

The DFEH’s website explains: “Employers’ pay data reports will allow DFEH to more efficiently identify wage patterns and allow for effective enforcement of equal pay or anti-discrimination laws, when appropriate. DFEH’s strategic vision is a California free of discrimination.”  SB 973 also authorizes the DFEH to enforce California’s Equal Pay Act set forth in Labor Code section 1197.5.

5. How can employers report the data?

The DFEH has indicated that employers will be able to report this data through on online portal being established.  The DFEH FAQs state that: “DFEH anticipates rolling out a secure online reporting system in advance of the 2021 filing deadline.”

There still are many questions about SB 973, and the DFEH will be updating its FAQ website as further guidance is established.

In this video, I discuss five key new laws facing California employers:

  • California’s Supplemental Paid Sick Leave, which took effect in September 2020 (read more about AB 1867 here)
  • AB 685 requiring employers to provide notice of suspected or confirmed COVID-19 in the workplace, effective on January 1, 2021 (read more about AB 685 here)
  • SB 1159 – workers’ compensation presumption regarding COVID-19 in the workplace, which took effect on September 17, 2020,
  • SB 1383’s expansion of California Family Leave Rights Act (CFRA) leave to employers with 5 or more employees, effective January 1, 2021, and
  • SB 973’s requirement for employers to report pay data to the state of California starting in March 2021.