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.

As we enter the holiday season, it is a good time to review employer’s obligations to accommodate requests for time off for holidays and best pay practices during the holiday season.  This Friday’s Five covers five reminders for employers about holiday leaves and pay:

1. California employers are not required to provide employees time off for holidays.

There is no requirement that California employers provide time off (except for religious accommodations – see below) for holidays. California’s DLSE’s website states the following:

Hours worked on holidays, Saturdays, and Sundays are treated like hours worked on any other day of the week. California law does not require that an employer provide its employees with paid holidays, that it closes its business on any holiday, or that employees be given the day off for any particular holiday.

2. California employers are not required to pay for time off for holidays, nor are they required to pay additional wages if employees work on holidays.

Likewise, there is no requirement that employers pay employees extra pay or “holiday pay” for work performed on holidays. Employers can voluntarily agree to pay employees extra pay for work that is required during holidays, but these terms would be governed by policy set forth by the employer. Therefore, employers are urged to make sure their holiday pay policies are clearly set forth.

California’s legislature has proposed bills that would require certain employers to pay employees double time for work done on Thanksgiving, but none of these bills have become law.  For example, the “Double Pay on the Holiday Act of 2016” proposed to require an employer to pay at least 2 times the regular rate of pay to employees at retail and grocery store establishments on Thanksgiving. None of these attempts by the legislature have been successful (yet) in requiring California employers to pay any extra “holiday pay.”

3. Employers must provide reasonable accommodations for employees who cannot work on certain holidays due to religious observances.

Employers need to be aware of any religious observances of their employees since employers need to provide reasonable accommodations for employees due to religious reasons. The analysis of reasonable accommodation is required is a case by case analysis based on the company’s type of business and the accommodation requested by the employee. If the employer’s operations require employees to work during normally recognized holidays, such as a restaurant, then this should be communicated to employees in the handbook or other policies and set the expectation that an essential function of the job requires work during normal holidays.

4. If an employer pays for time off during holidays, the employer does not have to allow employees to accrue holiday paid time off.

If an employee leaves employment before the holiday arrives, the employer is not required to pay the employee for the day off.  But the employer’s policy regarding holiday pay must clearly set forth that this benefit does not accrue to employees and that they must be employed during the specific holidays to receive the holiday pay.  Often employers also require that the employee works the days leading up to and following the holiday in order be eligible for the holiday pay.

5. If a pay day falls on certain holidays, and the employer is closed, the employer may process payroll on the next business day.

If an employer is closed on holidays listed in the California Government Code, then the employer may pay wages on the next business day.  The DLSE’s website explains this, and other considerations, for the timing requirements for payroll.  The holidays listed in the Government Code section 6700 are as follows:

  • Every Sunday
  • January 1 — New Year’s Day
  • Third Monday in January — Martin Luther King Jr. Day
  • February 12 — Lincoln’s Birthday
  • Third Monday in February — Washington’s Birthday
  • March 31 – Cesar Chaves Day
  • Last Monday in May — Memorial Day
  • July 4 — Independence Day
  • First Monday in September — Labor Day
  • September 9 – Admission Day
  • Fourth Friday in September – Native American Day
  • Second Monday in October — Columbus Day
  • November 11 — Veterans Day
  • Fourth Thursday in November — Thanksgiving Day
  • December 25 — Christmas
  • Other days appointed by the governor for a public fast, thanksgiving or holiday

With the 2020 election still undecided the results are on everyone’s mind, what can and should California employers do in regarding to political discussions in the workplace?  In this Friday’s Five, Mike Thompson joins me for a discussion on some of the best practices and potential pitfalls for California employers.

As 2020 ends, this Friday’s Five focuses on five steps employers can take now to prepare for 2021:

1. Update employee handbooks to comply with SB 1383 – California Family Rights Act (CFRA) now applies to employers with 5 or more employees.

There has been overhaul of the California Family Rights Act (CFRA) which will have a monumental impact on many employers throughout the state. The new law requires employers with as few as five employees to provide up to 12 weeks of unpaid job protected leave during any 12-month period for certain covered reasons.  In addition, the definition of family members covered under the law has also been expanded so that it no longer just includes a spouse, a parent or a child, but employees can take leave to care for grandparents, grandchildren, siblings, or  domestic partners with a serious health condition.  Smaller employers will need to develop a CFRA policy to comply with the new requirements, and larger employers will need to update their leave policies to address the other changes (such as the expanded definition of family member, elimination of key employee provisions, among other changes).

2. Update employee handbooks to comply with AB 2017 – Kin Care leave under Labor Code section 233.

This new law provides that the designation of the sick leave taken under Labor Code section 233 is at the sole discretion of the employee.  Therefore, the employer may not designate sick leave as Kin Care leave by itself in order to quickly deplete the Kin Care leave available. Any Kin Care leave policies and related policies should be updated accordingly.

3. Update employee handbooks to comply with AB 2992 – leave policies for victim of domestic violence, sexual assault, or stalking.

AB 2992 expands the right to take time off work under Labor Code section 230.  The new law permits employees to take time off if they are victims “of a crime that caused physical injury or that caused mental injury and a threat of physical injury” or for anyone “whose immediate family member is deceased as the direct result of a crime.”  Employers must update any relevant crime victim leave policies to comply with the new requirements.

4. Exempt employees – review salary requirements.

Employers need to review the base salary for all exempt employees to ensure the employees meet the salary required to be exempt.  To be exempt from the requirement of having to pay overtime to the employee, the employee must perform specified duties in a particular manner and be paid “a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” (Lab. Code, § 515, subd. (a).)  For more information about the salary basis test for exempt employees, see my previous article here.

With the increase in the state minimum wage on January 1, 2021, the equivalent of two times the minimum wage of $13 per hour for small employers (25 employees or less) equals $54,080 per year, and two times the minimum of $14 per hour for large employers (26 employees or more) equals $58,240 per year to qualify for the white collar exemptions.

It is important to note that the salary basis test is set according to the California state minimum wage, not the applicable minimum wage that may apply in the various local city and counties in California.

5. Update severance agreements to ensure they comply with AB 749 and AB 2143.

AB 749 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 under certain circumstances.  AB 2143, passed in 2020, provides an exception to this ban, if the employer documented in good fair, prior to a claim, that a person engaged in sexual harassment, sexual assault, or criminal conduct.

Employers only have to read the following paragraph from JoeBiden.com to get an overall sense of what employment legal changes are likely under a potential Biden administration:

Yet employers steal about $15 billion a year from working people just by paying workers less than the minimum wage. On top of that, workers experience huge losses in salary caused by other forms of wage theft, like employers not paying overtime, forcing off-the-clock work, and misclassifying workers. At the same time, these companies are raking in billions of dollars in profits and paying CEOs tens and hundreds of millions of dollars.

Here are five employment proposals that would dramatically change the legal landscape facing employers across the country that would likely be enacted under a Biden administration:

1. Implement a $15 per hour national minimum wage

Biden will raise the federal minimum wage to $15 per hour and likely eliminate the tip credit.

2. Ban mandatory individual arbitration agreements

JoeBiden.com sets forth that “Biden will enact legislation to ban employers from requiring their employees to agree to mandatory individual arbitration and forcing employees to relinquish their right to class action lawsuits or collective litigation.”

Similar attempts to prohibit arbitration agreements have occurred in California.  In October 2019, Governor Newsom signed AB 51, which attempted to make it an unlawful employment practice for an employer to require employees or applicants to “waive any right, forum, or procedure for a violation of” the California Fair Employment and Housing Act (FEHA) or the Labor Code. In other words, employers could no longer force employees to sign arbitration agreements.  AB 51 was challenged in court by the U.S. Chamber of Commerce on the grounds that AB 51 was preempted by the Federal Arbitration Act.  In the case, Chamber of Commerce of the USA, et al. v. Becerra, et al., the judge issued a preliminary injunction blocking the state’s enforcement of AB 51, but the case is still being litigated in the Ninth Circuit.

More information about arbitration agreements can be found here.

3. Adopt the ABC test for independent contractors based on California’s model for the county

Biden promises that as president he would “work with Congress to establish a federal standard modeled on the ABC test for all labor, employment, and tax laws.”  The ABC test would be modeled after California’s ABC test set forth in AB 5, which was updated by AB 2257 in September 2020.  California’s ABC test makes it much more difficult for employers to classify workers as independent contractors.  As evident in the exclusions set forth in AB 2257, many industries and professionals in California have asked to be excluded from the ABC test, and ride-sharing companies, such as Uber and Lyft, are spending hundreds of millions of dollars to place Proposition 22 before the California voters this November to exempt the companies from the law.  Implementing the ABC test across the county would likely be a death blow to gig-economy companies, or at the minimum force the companies to dramatically change their business models.

4. Empower unions

A Biden administration would bring sweeping changes to the National Labor Relations Act (NLRA) and potentially would pass portions of the Protecting the Right to Organize Act (PRO Act).  He supports instituting financial penalties against companies that interfere with organizing efforts, which would include personal liability for company executives (and potential criminal liability for intentional conduct).  Biden also proposes banning state right-to-work laws and would require employees to pay union dues even if they are not part of a union.  Biden also wants to eliminate secret ballot voting for unions and would implement the “card check” process under which votes would be public.

5. Increase employment investigations

Biden would also increase employment oversight through various governmental agencies.  His administration would direct the Department of Labor to work with the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission, the Internal Revenue Service, the Justice Department, and state labor agencies to “aggressively pursue employers who violate labor laws.”  This initiative would also include an increase in the number of investigators in these federal agencies.

More information about Joe Biden’s employment initiatives can be found on his campaign website here: https://joebiden.com/empowerworkers/#

California passed sweeping legislation that imposes new reporting requirements in 2021 on employers regarding COVID-19 cases in the workplace.  The new law, AB 685, also provides California’s Division of Occupational Safety and Health (Cal-OSHA) expansive authority to close workplaces based on the threat of COVID-19.  Here are five issues California employers need to understand about the new requirements passed in AB 685:

1. AB 685 is effective of January 1, 2021

The Governor signed AB 685 on September 17, 2020.  It becomes effective on January 1, 2021, and expires on January 1, 2023.

2. Employer notice requirements for COVID-19 in the workplace

AB 685 also adds Labor Code section 6409.6 which requires employers to report certain instances of COVID-19 in the workplace.  The new law requires employers who receive a notice of potential exposure to COVID-19 to provide a written notice to other employees within one day of notice of potential exposure:

  • Provide a written notice to all employees and employers of subcontracted employees who were on the premises at the same time as the “qualifying individual” within the “infectious period” that they may have been exposed to COVID-19. “Infectious period” is not formally defined by the statute, but rather refers to the definition provided by the State Department of Public Health.  “Qualifying individual” is defined as any person who (1) has a laboratory-confirmed case of COVID-19 as defined by the State Department of Public Health, (2) a positive COVID-19 diagnosis from a license health care provider, (3) a COVID-19-related order to isolate provided by a public health official, or (4) died due to COVID-19, in the determination of a county public health department or “per inclusion in the COVID-19 statistics of a county.”
  • The notice must be in a form that is usually used to communicate with employees, and can be by personal delivery, email, or text message as long as the notice is reasonably believed to be received by the employee within one business day of delivery. The notice must be in both English and in the language understood by a majority of employees.
  • Provide employees who may have been exposed with information regarding COVID-19 related benefits available under federal, state, and local laws. This information would include workers compensation benefits, COVID-19-related leaves, company sick leave, state-mandated leave, supplemental sick leave, and antiretaliation and antidiscrimination protections.
  • Notify all employees of the disinfection and safety plan that the employer plans to implement and complete in accordance with the guidelines of the Centers for Disease Control.

Employers should start preparing a draft of this notice in order to be able to meet the one-day requirement to inform employees.  Employers are required under the new law to keep records of the written notices provided to employees for at least three years.

3. Employers must notify the local public health agency of “outbreaks”

If an employer has an “outbreak” in its workforce, within 48 hours it must notify the local public health agency in the jurisdiction of the worksite of the names, number, occupation and worksite of “qualifying individuals.” An “outbreak” for AB 685 is currently defined as: “[a]t least three probable or confirmed COVID-19 cases within a 14-day period in people who are epidemiologically-linked in the setting, are from different households, and are not identified as close contacts of each other in any other case investigation.” (see https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/OutbreakDefinitionandReportingGuidance.aspx).

Again, “qualifying individual” is defined as any person who (1) has a laboratory-confirmed case of COVID-19 as defined by the State Department of Public Health, (2) a positive COVID-19 diagnosis from a license health care provider, (3) a COVID-19-related order to isolate provided by a public health official, or (4) died due to COVID-19, in the determination of a county public health department or “per inclusion in the COVID-19 statistics of a county.”  The employer must also continue to inform the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

4. Grants Cal-OSHA authority to close workplaces that constitute an “imminent hazard to employees”

AB 685 amends Labor Code section 6325 to permit Cal-OSHA to close workplaces that “constitute an imminent hazard to employees” due to COVID-19.  The closure of a workplace must be limited to the immediate area that the “imminent hazard exists,” and Cal-OSHA cannot prohibit entry to any areas that are outside of the hazard area.  Cal-OSHA must post a notice in a conspicuous place at the place of employment making this determination.  Entry must still be permitted for eliminating the dangerous condition.  AB 685 removes some of the notice provisions that Cal-OSHA usually must comply with before making a determination that a work environment constitutes an imminent hazard when dealing with COVID-19, so employers must be prepared to act immediately if Cal-OSHA designates a worksite or portion of a worksite as a hazard area due to COVID-19.

5. Useful State of California issued guidance for employers for dealing with COVID-19 in the workplace