The City of Los Angeles will likely implement a vaccine mandate next week for anyone wishing to visit certain public venues.  This is on the heals of California’s mandate that teachers and school staff must be vaccinated or be tested at least once per week, and certain health care workers to be vaccinated by September 30, 2021.  The City of Los Angeles’ mandate raises many issues and questions for employers, should it pass as expected.  Here are five key issues facing businesses under an ordinance that requires customers to be vaccinated:

1. What is required by the City of Los Angeles’ vaccine mandate?

The Los Angeles City Council voted 13-0 on Wednesday, August 11, to instruct the City Attorney “to prepare an present an ordinance that would require eligible individuals to have received at least one dose of vaccination to enter indoor spaces, including but not limited to, restaurants, bars, retail establishments, fitness centers, spas, and entertainment centers such as stadiums, concert venues, and movie theaters.”  While the motion sets forth some establishments that will be covered, the key issue is what are the other establishments covered by the “but not limited to” clause in the motion?

Also, the ordinance does not require the public to be vaccinated but prevents them from being able to visit or shop at these public facilities.  However, it would likely require the employees at these facilities to be vaccinated, as discussed below.

2. Who will enforce the ordinance?

It is one thing for employers to ask employees about vaccination status and document their status, but quite another issue to place this burden on businesses to check the vaccination status of the public who wish to enter their facility.

3. How will companies verify if an individual has a medical condition or a sincerely held religious belief that prevents them from getting the vaccine?

Again, in the employment context, it is easy to work with employees to see who needs a reasonable accommodation due to medical issues or based on sincerely held religious beliefs as required under the law.  However, it is likely that companies will have to offer similar accommodations to the public based on their medical condition and sincerely held religious beliefs in order to enter their facility.  How are businesses to verify that the customer is entitled to a reasonable accommodation?  Is the customer’s verbal statement that they need a reasonable accommodation sufficient?  There are many privacy issues at play here as well.

4. Will employees who work in the facilities covered by the ordinance be required to be vaccinated?

It seems that employees working in facilities that are covered by the ordinance will need to be vaccinated and that excluding the employees from this requirement would defeat the intent.  However, except for teachers, school staff, and certain health care workers, there has not been a state or local mandate in California requiring employees to receive the vaccine.  This ordinance, to the extent it applies to employees, would be the first-time employees are required to be vaccinated outside of the school, government, or healthcare setting.  See our prior post Checklist for Developing a Mandatory Vaccination Policy in California for more information about employers’ obligations when developing a mandatory vaccination policy.

5. By requiring mandatory vaccines, does this guarantee that the facilities covered by the ordinance will remain open, even if there is a surge in Delta-variant cases?

The statements made by the Councilmembers in support of the ordinance do support the idea that if the mandate is in place it will avoid another shutdown.  For example, Variety reported that Councilmember Kevin de Leon stated, “This is a no-brainer.  My constitutes can’t accept another shutdown.”  Also, politically, it would be difficult for Councilmembers to support the mandatory vaccination, require their constitutes to be vaccinated, and then support another economic shutdown in the future.  It would be an incentive for businesses to support such measures if they knew with reasonable certainty that it would prevent the City from imposing further shutdowns.  Likewise, it would be an incentive for individuals to receive the vaccine if they knew the public establishments which they are receiving the vaccine in order to enter will in fact remain open, even if the Delta-variant becomes more widespread.

On June 24, 2021, Mayor Eric Garcetti issued an Order mandating COVID-19 Vaccine Leave (“Vaccine Leave”) for employees who work in the City of Los Angeles. The requirements of the Order apply retroactively to January 1, 2021. The Order is currently set to terminate on its own on September 30, 2021, with minor exceptions for employees who take leave on or around the time of expiration. 

Compliance:

Employers must provide Vaccine Leave upon oral or written request of an employee who have been employed with the employer for at least 60 days for the time spent by the employee: (1) traveling to and from an appointment for vaccine, (2) receiving the injection, and (3) recovering from vaccination-related side effects that prevents the employee from being able to work or telework.  

Vaccine Leave Entitlement:  

Employers with 25 or fewer employees must provide leave as follows: 

  • Full-Time employees are entitled to up to four hours of leave to obtain each vaccine injection, and up to eight hours to recover from any vaccination-related side effects.  
  • Part-Time employees are entitled to the prorated amount of four hours per injection based on the average number of hours worked the 60 days preceding the injection, and up to the prorated amount of the right hours to recover from any vaccination-related side effects.  

Employers with more than 25 employees must provide the same leave described above, provided however, that the employee has already exhausted all available leave under other sick leave allotments such as city or state mandated COVID-19 supplemental paid sick leave.  

Rate of Pay:

Nonexempt employees entitled to the leave are to be compensated at the highest of the following rates: 

  • The normal rate of pay for the workweek in which the leave is taken; 
  • The city’s minimum wage; or 
  • The average hourly pay for the preceding 60 days, not including overtime. 

Exempt employees are to be compensated for the leave in the same manner as the employer calculates other forms of paid leave. Leave required by the Order is not to exceed $511 per day (or $255.50 per each 4 hours) or $1,022 in aggregate. 

Although the Order applies specifically to City of Los Angeles, employers everywhere should be aware of similar directives from their local city or county governments providing employees with vaccine-related leave rights.   

This week many employers made the decision to mandate vaccination policies for their employees.  Disney, Uber, Microsoft, and Walmart are some of the larger employers in the news this week that are requiring all or some of their employees to be vaccinated in order to return to the workplace.

Federal and California law make it clear that employers can mandate employees to be vaccinated.  California’s DFEH issued guidance that permits California employers to require employees to be vaccinated:

Under the FEHA, an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

There are many considerations California employers need to make before implementing a mandatory vaccination policy, including the following:

1. Determine if the mandatory vaccination policy applies to all employees.

Employers must decide if all employees will be required to obtain the vaccination, or if it will apply to only certain employees.  For example, Microsoft announced this week that employees who wish to return to the office must have the vaccination.  Walmart is requiring its corporate staff members and regional managers to be fully vaccinated by October 4, and is offering all other employees a $150 incentive to obtain the vaccine according to The Washington Post.  Employers must be careful in designating who and who will not be required to be vaccinated to avoid any potential discrimination or disparate treatment claims.

2. Determine when employees are entitled to be paid for time taken to receive the vaccine or to recover from side effects from receiving the vaccine and expenses.

Employers must review federal, state, and local laws regarding any requirements to pay employees for the time (and expenses, such as mileage) involved to get vaccinated.  There is a patchwork of laws that employers must navigate in California that apply to employee compensation in this regard:

California employers must also review local requirements to pay for employees’ time to receive the vaccine and to recovery from any side effects.  For example, Los Angeles area employers must comply with:

3. Review and set up process to provide reasonable accommodations to employees.

California’s Fair Employment and Housing Act (FEHA) applies to employers with 5 or more employees.  It requires employers to reasonably accommodate employees with a disability unless the accommodation presents an undue hardship after engaging in the interactive process with the employee.  While the interactive process does not have to be recorded in a writing, it is a best practice for employers to develop a set of forms that ask the employee about the accommodation that is being sought, the employer’s response to the accommodation request, and the process that the company will take to evaluate all accommodation requests.

4. Determine what type of proof of vaccination the company will require.

According to the EEOC, employers may ask for proof of vaccination because such proof is not considered a disability-related inquiry.  According to the DFEH, employers may ask the employee for “proof” of the vaccination:

Because the reasons that any given employee or applicant is not vaccinated may or may not be related to disability or religious creed, simply asking employees or applicants for proof of vaccination is not a disability-related inquiry, religious creed-related inquiry, or a medical examination. However, because such documentation could potentially include disability-related medical information, employers may wish to instruct their employees or applicants to omit any medical information from such documentation. Any record of employee or applicant vaccination must be maintained as a confidential medical record.

Cal/OSHA’s revised ETS permits employers to document employee’s vaccination status, but does not set forth how employers are supposed to document vaccination status and what steps must be taken to document status.  Cal/OSHA’s FAQs provide the following are acceptable options to document employees’ vaccination status:

  • Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
  • Employees provide proof of vaccination. The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
  • Employees self-attest to vaccination status and employer maintains a record of who self-attests.

5.  Develop protocols on how proof of vaccination will be kept and who within the company will have access to the confidential information.

Since people who have received the vaccine are given a card, it would be reasonable to ask for proof via this card. However, employers should not ask intrusive follow-up questions such as the reasons why the employee is not getting vaccinated since these questions may be considered disability-related and accordingly trigger ADA protections. Employers should also request that employees provide them no more information than necessary as proof of vaccination in order to avoid violations of other disability laws.

6.  Set forth policies and training for employees explaining that vaccinated employees need to still abide by social distancing protocols.

Employers must still abide by federal, state and local guidelines for the workplace.  Employers need to maintain compliance with these regulations, and can impose additional requirements on its workforce to prevent the spread of COVID-19 in the workplace.  Employees who have been vaccinated are not exempt from these requirements.

Also, the CDC has also cautioned against individuals who have received the vaccine from attending social gatherings if they have symptoms.

7.  Set forth COVID-19 testing requirements and explain that vaccinated employees may be subject to testing requirements in the future.

Nothing prevents employers from requiring COVID-19 tests for its employees, even if they have been vaccinated.  Employers should develop a plan under which circumstances they would require employees to be tested.  Employers should also review their testing requirements during outbreaks under Cal/OSHA’s revised ETS.

Even though severance pay is not required under California law, employers facing disputes with exiting employees should consider offering severance pay in exchange for a release of claims in order to preempt potential litigation.  If an employee is at-will and either the employer or the employee decides to end the employment relationship, unless there is a contractual agreement, the employer is not required to provide severance to the employee.  However, severance agreements should be utilized by employers in certain circumstances to avoid potential costly litigation.  While there are many aspects to consider about severance agreements (which cannot be covered in one article), here are five issues employers need to understand about severance agreement terms:

1. Release of claims

The idea of the severance agreement is to have some certainty that there will not be litigation following the employee’s separation from the company.  Employers may seek a general release of known and unknown claims if it is specific and easy to understand.  Courts have held that “a written release extinguishes any obligation covered by the release’s terms, provided it has not been obtained by fraud, deception, misrepresentation, duress, or undue influence.”  Skrbina v. Fleming Cos. (1996).

Release of Unknown Claims

The employee (and employer for that matter) can waive all known claims. However, in California, for any party to release unknown claims, the agreement needs to be clear and advise the party that they are releasing unknown claims. Ideally, the agreement should set forth that the employee is waiving all rights under California Civil Code section 1542, and to specifically quote section 1542 in the agreement, which provides:

A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.

2.  Choice of law and venue

California Labor Code section 925 prohibits employers from requiring an employee who primarily resides and works in California, as a condition of employment, to adjudicate claims outside of California that arose in California and deprive the employee of “substantive protection of California law.”  Section 925 does not apply to any contracts negotiated when the employee is represented by legal counsel.  Section 925 only applies to contracts entered into, modified, or extended on or after January 1, 2017.  However, since a severance agreement is being entered at the end of the employment relationship, employers may have the argument that section 925 does not apply to severance agreements because it is not being entered into “as a condition of employment.”  Employers should approach this issue carefully, and to the extent there is a need to provide for a state other than California’s law to apply to the severance agreement, or for the venue to be set outside of California, employment counsel needs to be consulted.

3. No re-hire

Beginning January 1, 2020, an employer may not include a no re-hire provision in the severance agreement under certain circumstances.  Code of Civil Procedure section 1002.5 prohibits and invalidates any provisions in settlement agreements entered into on or after January 1, 2020 that prevent workers from obtaining future employment with the settling employer or its affiliated companies.

The law applies to any employees who have filed a claim: (1) against the employer in court, (2) before an administrative agency, (3) in an alternative dispute resolution forum, or (4) through the employer’s internal complaint process.  Therefore, if the employee has complained internally, and a severance agreement is reached with the employee without any litigation being filed, the employer would still be restricted from placing a no-rehire provision in the severance agreement.

The law does not prohibit or otherwise restrict an employer from preventing an employee from obtaining future employment if the employer has made a good faith determination that the person engaged in sexual harassment or sexual assault.

4. Confidentiality

Severance agreements may a contain limited confidentiality provision where the employee agrees not to disclose the amount paid or the terms of the agreement.  The confidentially provision can set forth the limited number of people the employee may make disclosures to, such as legal or tax advisors, family members, or as required under the law.  However, California employers need to be careful about confidentiality provisions,  as California law prohibits confidential settlement agreements or disclosure of allegations related to sexual harassment in the workplace.

5. Special provisions for a release of age claims

The Older Workers Benefit Protection Act (OWBPA) protects individuals 40 years old or older. The OWBPA provides that to release a claim for age discrimination, a severance agreement must meet certain requirements. Some of these requirements include that the employee is advised to consult with an attorney, the waiver is easily understood, the individual is given at least 21 days to consider the agreement, and the individual is given at least 7 days following the execution of the agreement to revoke the agreement. The 21-day consideration period can be waived by the employee, but the seven-day revocation period after the agreement is signed cannot be waived by the employee. Therefore, it is important to consider potentially not paying any money until after the seven-day revocation period expires. If the employer is offering the release to a group or class of employees a longer consideration period and other requirements apply. It is recommended that employers receive the assistance of counsel to ensure that employees 40 years old or older effectively waive any rights under the OWBPA. For more information, the EEOCs’ website provides a good explanation and some examples.

I was joined by restaurant owner and entrepreneur Madelyn Alfano to discuss how she built Maria’s Italian Kitchen, a successful restaurant with multiple locations in the Los Angeles area, her perspective on entrepreneurship and leading a business, and how she navigated COVID-19.  Madelyn and I have very similar outlooks on the entrepreneurship mindset, competition, employees, and building a great company culture.  Restaurant owners, aspiring restaurant owners, and any business leader can take away a few great insights from our discussion.  For me, the following five quotes from Madelyn during our interview stood out as key insights for me:

  1. “Businesses are so afraid to be honest with their customer. Just be honest, [customers] can handle the truth!”
  2. “If you don’t know something, find someone who does it better, and hire them…or ask them to mentor you.”
  3. “Take care of your neighbors, even if they’re direct competitors, you offer that… you can be a friendly competitor, there’s nothing wrong with that.”
  4. “I think the most important thing before you expand, is treat your one restaurant as if you have multiple restaurants. Make sure you have systems in place…systems are so important…systems and protocols…everyone understands the clear constant consistent communication…everyone knows what they have to do, try to create those real habits…little habits make the difference.”
  5. “It’s not about selling food. It’s about making people feel special, and making people feel nourished and nurtured. That’s what I want people to experience when they come into Maria’s Italian Kitchen.”

 The episode is available on your favorite podcast platform, including:

Apple Podcasts

Spotify

Written by Veenita Raj

With the shortage of candidates available for hire, especially in the hospitality industry, many employers are having to expand their pool of qualified candidates to include minors. There are, however, special rules and regulations that employers must follow if planning to hire minors.  While the Fair Labor and Standards Act (FLSA) regulates the employment of minors, including what hours they can work and industries, California has its own law, which is often more restrictive than the FLSA.  

Below is an overview of what employers need to know when it comes to hiring minors in California:  

School Attendance Requirements  

Minors 12 to 15 years of age must attend high school full-time unless they have graduated high school or equivalent.  

16- and 17-year-olds are not required to attend high school if they have graduated high school or have a certificate of proficiency. However, if they are regularly employed and have not graduated high school or equivalent, they must attend continuation school for at least 4 hours per week.  

Work Permit Requirements (does not apply to high school graduates or equivalent)  

Except in limited circumstances, employers are required to get a work permit issued by the minor’s school before hire, unless the minor is a high school graduate or equivalent. Once an employer agrees to hire the minor, it must obtain the work permit before the minor performs any work, including orientation or training and even if the minor does not perform any actual job duties. The school will decide whether to issue a work permit and may decide to issue the permit for the maximum hours allowed by law, to limit the hours the minor may work, or to refuse to issue a permit at all. 

Work Permits

1. Statement of Intent to Employ Minor and Request for Work Permit are completed by the minor and the employee and available here: https://www.dir.ca.gov/dlse/dlseformB1-1.pdf. This form must be completed first and then Form B1-4 is completed.

2. Form B1-4 Permit to Employ and Work is issued by the minor’s school and available here: https://www.dir.ca.gov/dlse/dlseformB1-4.pdf

California Child Labor Laws is a publication by the State of California that outlines restrictions on employing minors and the types of work and equipment minors are prohibited from doing and using and is available here.

Hours of Work  

Minor employees are not allowed to work unlimited hours and their work hours may depend on their age and the school calendar as follows:  

  1. When school is in session:
    • 16- and 17-year-olds may work 4 hours per day on any school day, 8 hours on any non-school day or any day preceding a non-school day, up to 48 hours per week, and between 5:00 a.m. and 10:00 p. m., except on evenings preceding non-school days, the minor may work until 12:30 a.m. 
    • Children who are 14 and 15 years of age, may work if they have not completed 7th grade, and they may work up to 3 hours on school days, 8 hours on non-school days, and up to 18 hours per week. 
    • 12- and 13-year-olds may be employed only during school holidays and weekends, and may never be employed on any school day.   
  1. When school is not in session:
    • 16- and 17-year-olds may work up to 8 hours a day, up to 48 hours a week, and between 7:00 a.m. and 12:30 a.m., on days that do not precede a school day. 
    • 12 through 15-year-olds may work up to 8 hours per day, up to 40 hours per week, and between 7:00 a.m. and 7:00 p.m., except that from June 1 through Labor Day, until 9:00 p.m.   
  1. Youth who are 16 and 17 years old and enrolled in a work experience or cooperative vocational program approved by the California Department of Education may work until 12:30 a.m. on any day and may work more than 8 hours on a school day.
  2. Youth who are 14 and 15 years old may enroll in a work experience education program and be issued permits to work in full-time employment if:
    • the youth’s family needs the full-time earnings because of the death or desertion of the youth’s father and/or mother, and sufficient aid cannot be secured in any other manner; 
    • the youth needs the full-time earnings for support because he or she minor is unable to reside with his or her family; or 
    • the youth resides in foster care and, with the written authorization of their social worker, probation officer, or child protective services worker, wishes to further the goal of obtaining a court ordered Declaration of Emancipation or gain knowledge of work skills and habits. 

Wage and Hour Issues 

Minors must be paid at least the minimum wage and applicable overtime rates and must be provided with all legally required meal and rest breaks. High school graduates or the equivalent must be paid commensurate with adults when they perform the same quantity, quality, and classification of work. This includes wage rates that are above the minimum wage.  

Penalties for Violating Child Labor Laws 

Violations of child labor laws carry serious civil and criminal penalties. The more severe civil penalties generally involve employment in hazardous occupations.  Criminal violations of child labor laws are misdemeanors punishable by fines ranging up to $10,000, by jail time of up to six months, or both fines and imprisonment.  

It is critical for California employers to properly calculate the regular rate of pay for an employee in order to pay the appropriate overtime pay and for premium pay for missed meal and rest breaks.  Here are five issues employers must be aware of regarding calculating an employee’s regular rate of pay:

1. Employers must pay the “regular rate of pay” as calculated for overtime purposes when paying premium pay for missed meal and rest breaks.

As we previously reported, the California Supreme Court in Ferra v. Loews Hollywood Hotel, LLC held that the “regular rate of compensation” owed as premium wages for missed meal and rest breaks, must be calculated just as the “regular rate of pay” is calculated for overtime purposes.  While the case discussed generally what must be included in the “regular rate of pay” calculations, there are many nuances to this calculation.

 2. What compensation must be included in calculating employee’s regular rate of pay?

The DIR defines regular rate of pay as “the compensation an employee normally earns for the work they perform.  The regular rate of pay includes a number of different kinds of renumeration, such as hourly earnings, salary, piecework earning, and commissions.  In no case may the regular rate of pay be less than the applicable minimum wage.”

The Court in Ferra held that the “regular rate of pay” for missed meal breaks, just like the calculation of overtime pay, “must account for not only hourly wages but also other nondiscretionary payments for work performed by the employee.”  The Court explained that, “We use the term ‘nondiscretionary payments’ to mean payments for an employee’s work that are owed ‘pursuant to [a] prior contract, agreement, or promise,’ not ‘determined at the sole discretion of the employer.’”

3. Examples of payments that must be calculated into the regular rate of pay.

In determining the regular rate of pay, employers must include the employee’s base hourly rate plus any amounts for:

  • Shift differentials (such as premiums to work on weekends or holidays)
  • Attendance bonuses, such as those earned for weekend work is a form of incentive pay
  • Piece rate earnings
  • Commissions
  • Nondiscretionary pay and bonuses. The DIR explains, “A nondiscretionary bonus is included in determining the regular rate of pay for computing overtime when the bonus is compensation for hours worked, production or proficiency, or as an incentive to remain employed by the same employer.”

4. Examples of payments that are not included when calculating the employee’s regular rate of pay.

Unlike the nondiscretionary items listed above, an employee’s regular rate of pay does not increase for any of the following payments made to them:

  • Discretionary payments made to employees, such as gifts or bonuses that are not tied to the employee’s production, hours worked, or by formula for certain benchmarks.
  • Reimbursements for business expenses
  • Certain pay owed as required by the Labor Code, such as premium pay for missed meal and rest breaks, reporting time pay, call back pay, split shift pay.
  • Because tips are voluntarily left by customers to employees, tips do not increase an employee’s regular rate of pay for overtime calculations and premium pay.  However, if an employer implements mandatory service charges and shares these service charges with employees, the service charges must be considered wages for overtime and tax purposes.  Therefore, the employee’s regular rate of pay for overtime purposes and in calculating premium pay will be higher when mandatory service charges are distributed to the employees.

5. Employers must be aware of the proper calculation methods in determining the regular rate of pay.

Employers must carefully follow the different calculation methods to determine the employee’s regular rate of pay.  For example, the DIR sets forth how employers are to calculate the regular rate of pay for non-exempt salary employees, employee’s paid by the piece or commission, and that employers are to use a “weighted average” method for employees paid two or more rates during the workweek.  Employers must also be careful in how to calculate the regular rate of pay for nondiscretionary flat sum bonuses paid to employees.  The calculations are complex, and employers need to review the appropriate calculation method to ensure the calculation is done properly.

The Labor Code requires that an employer who “fails to provide a meal or rest or recovery period . . . shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.” What does “regular rate of compensation” mean? The California Supreme Court just settled the matter in Ferra v. Loews Hollywood Hotel, LLC.

The employer (and the lower Court of Appeal) argued that “regular rate of compensation” meant the employee’s base hourly wage–i.e., what the employee would be paid for one hour of work. The plaintiff argued that it actually meant the same as “regular rate of pay” used in the context of calculating overtime, which would include adjustments to the base hourly wage for such things as shift differentials and nondiscretionary bonuses.

The California Supreme Court sided with the employee, holding that “regular rate of compensation” in the meal/rest premium context has the same meaning as “regular rate of pay” in the overtime context. The Supreme Court also ruled that its decision here applies retroactively, not just going forward.

Employers should review payroll processes to ensure compliance with this interpretation of regular rate of compensation. In addition to base hourly rate, meal and rest premium payments must take into account non-hourly forms of compensation, including commissions, piecework earnings, and nondiscretionary bonuses. Discretionary bonuses and tips do not need to be included, but restaurant employers who charge customers mandatory service charges that are then distributed to employees need to include those payments in calculating meal and rest premiums (and overtime). Employers who were paying premiums at the base hourly rate will also need to consider that the ruling applies retroactively and assess whether pay adjustments are necessary.

Co-authored by Michael Thompson

Yesterday, July 8, 2021, Zaller Law Group hosted a webinar with a speaker from Cal/OSHA discussing the revised Emergency Temporary Standards (ETS) and what changes employers need to be aware of going forward.  Here are five key takeaways from the webinar we thought were interesting:

1. Managers and supervisors need to know vaccination status to enforce masking requirements.

The revised ETS requires employers to provide employees who are not fully vaccinated with face coverings of at least 2 layers or more and ensure they are worn over the nose and mouth when indoors, in vehicles and when required by orders from the CDPH.

The revised ETS provides exceptions to this general rule for: an employee who is alone in a room or vehicle, while eating or drinking provided employees are six feet apart or outside, employees wearing respirators, employees who cannot wear face coverings due to a medical or mental health condition or disability or who are hearing-impaired or communicating with a hearing-impaired person, or when an employee performs specific tasks which cannot be performed with a face covering.

Employers must also provide face coverings to employees upon request, regardless of their vaccination status.

For employers who want to permit fully-vaccinated employees to work without face coverings, an inevitable question is how to balance the confidentiality of vaccination information with the need to ensure that unvaccinated employees who are required to wear face coverings do so? Cal/OSHA clarified that where managers and supervisors are required to enforce employee masking requirements, it is appropriate for them to know which employees are fully-vaccinated.

2. If employers send employees to customers establishments to perform work, the employer may comply with customer’s requests to only have employees working who have been vaccinated.

The Department of Fair Employment and Housing (DFEH) set forth that employers may require employees to receive an FDA-approved vaccination under California law.  However, employers must not discriminate against or harass employees or job applicants on the basis of protected characteristics, and must provide reasonable accommodations for disabilities or sincerely-held religious beliefs or practices.  Therefore, Cal/OSHA explained that employers may comply with customer’s requests to only have vaccinated employees working at their location.  However, employers must still provide employees with reasonable accommodations for disabilities or religious beliefs.

3. Masks designated as KN95 are acceptable as face coverings, but not as respirators.

The revised ETS defines “face covering” as a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers.  A face covering has with no visible holes or openings and must, which covers the nose and mouth.  A face covering does not include a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric.

“Respirator” is defined as a respiratory protection device approved by the National Institute for Occupational Safety and Health (NIOSH) to protect the wearer from particulate matter, such as an N95 filtering facepiece respirator.

Cal/OSHA explained that the “KN95” designation for masks is a Chinese designation, and this is not the same as a “N95” mask.  KN95 masks are not as effective of the N95 masks (plus there have been many counterfeit KN95 masks) and while acceptable as face coverings, KN95 masks do not qualify as “respirators” under the ETS.

4. Section 3205.3 and 3205.4 of the ETS addressing employer-provided housing and transportation may apply to temporary employee travel, such as conferences.

Although the generally-applicable section 3205 of the ETS contains the requirements that most employers need to know, the ETS actually has five sections. Sections 3205.1 and 3205.2 set forth heightened requirements where a workplace has had multiple employees test positive for COVID-19 in a short span of time. Section 2305.3 regulates employer-provided housing. Section 3205.4 regulates employer-provided transportation.

Many employers do not provide employee housing and do not regularly have employees traveling in groups, and so may forget these sections exist. But don’t fail to consider situations where employees may temporarily travel for work, including conventions and retreats. In those situations, Cal/OSHA advises that employers should review these specific sections to ensure compliance.

5. The revised ETS expires on January 14, 2022, but it is possible for Cal/OSHA to issue additional revisions and extend the expiration date.

In addition, the representative from Cal/OSHA discussed the possibility of Cal/OSHA making portions of the ETS permanent for California employers.  Therefore, it is critical for employers to continue to monitor any developments and revisions to the ETS to ensure compliance.

I have published this post since 2015 recognizing the Fourth of July (one of my favorite holidays).  Hopefully I’ll be able to keep publishing it for many years to come.  Wishing you a great Fourth, and hope you have some time to put aside your work for a bit and enjoy some time with your family.  Happy Fourth of July!

Five things I’m thankful for this Fourth of July:

1.     For the great risk and sacrifice our Founding Fathers took to establish the country. 

When learning about the Founding Fathers in high school history class I did not have a perspective about the risks the Founders took in establishing the country.  Only now that I have a business, a family, and am relatively successful, can I realize the huge risks the Founders took.  By all means, they were the establishment, the elite of the American society, and if anyone had an interest in preserving the status quo, it was them.  Their sacrifices of life (theirs and their family members) and their fortunes helped build the foundation we benefit from today.

2.     The ability to speak freely and practice or not practice any religion I want.

It is great being able to freely speak your mind and believe in whatever you want.  It is also great be free to practice (or not) any religion you want.  We live in a very tolerant society, and it is even better when the government is not telling you how to live your life.  It is important to remember that throughout history, this has been the exception for how a government normally behaves.

3.     Our Country’s ability to attract creative people.

People that like creating things and being productive want to practice their trade where the government will basically leave them alone and provide a good environment to protect their gains derived from their hard effort (see item #5 below).  The U.S. provides this environment, and that is why so many people come to the U.S. to create a business or to practice their trade.  It is also important to recognize how lucky we are to be in the U.S.

4.     My right to practice any profession and access to unlimited resources to learn the required skills.

No one is dictating what students need to be after they graduate high school or college.  Everyone is free to pursue their interest, and the market decides the value of the effort.  With basically any information freely available on the Internet, anyone can learn almost any skill, and like no other time in human history individuals have an almost free method to sell their services or products over the Internet.  In your mid-40’s and want to make a career change?  Perfect, and you don’t even need to go back to school as the information is freely available on the Internet.  Didn’t finish college and are 20 years old with an idea?  Perfect.  Venture capitalists don’t care about your pedigree, they are only interested if you work hard and don’t give up.

5.     Our legal system.

Yes, it sounds trite.  But while I don’t think our legal system is perfect by any means, it is the best system established in the history of mankind.  Everyone living in the U.S. presently is very lucky to have this benefit.  It is a foundation for many of the items I mentioned above.  Because people have a good basis for predicting the outcomes of their actions, such as being able to retain property legally obtained, and knowing if someone breaches a contract there will be repercussions, it creates an environment that attracts hard effort and the best talent from around the world.  This is why the U.S. has been the leader in ideas and new businesses.  However, just because the system is established does not mean our work is done.  We have to be vigilant not to lose the fairness, reasonableness, and lack of corruption in the legal system.

Happy Fourth of July. Looking forward to the parade taking place again this year getting some surfing in with my family.