Hill, Farrer & Burrill LLP

Employment Updates

OSHA Implements COVID-19 Vaccination and Testing Emergency Temporary Standard

On November 4, 2021, the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) announced its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), which became effective as of November 5, 2021 upon its publication in the Federal Register.

The ETS establishes binding requirements on private firms and companies with 100 or more employees, as well as public sector workers employed by state and local governments in the 26 states (including California) with OSHA State Plans. The ETS does not apply to employees who do not report to a workplace where other individuals such as coworkers or customers are present, employees while they are working from home, or employees who work exclusively outdoors. More>>

California Supreme Court Increases Potential Liability for Meal and Rest Period Premiums

On July 15, 2021, the California Supreme Court issued its decision in Ferra v. Loews Hollywood Hotel, LLC, holding that employers must pay premium payments to employees for missed meal, rest, and recovery breaks at the employee’s “regular rate of pay” rather than at their base hourly rate.  This holding aligns the formula for calculating meal period and rest break premium payments with the formula for calculating overtime payments under California law.

The “regular rate of pay” includes all non-discretionary incentive payments, such as bonuses and commissions.  This rate has been used to calculate overtime rates for workers who are paid both a guaranteed hourly rate and performance-based incentive bonuses, or piecework earnings.  More>>

CAL-OSHA Votes to Eliminate Mask Requirements for Vaccinated Employees

On June 17, 2021, the California Occupational Safety and Health Standards Board (Cal-OSHA) voted to eliminate mask requirements for vaccinated employees.  Almost immediately after Cal-OSHA’s vote, Governor Gavin Newson signed an executive order to allow the new laws to take place immediately.  Accordingly, effective yesterday, June 17, 2021, vaccinated employees no longer need to wear masks in the workplace.

Employees are considered vaccinated if the employer has received documentation that 14 days have elapsed since the employee received the second dose in a two-dose COVID-19 vaccine or 14 days have elapsed since the employee received a single-dose COVID-19 vaccine.  More>>

CAL-OSHA Votes to Relax Mask-Wearing Rules for Vaccinated Employees and to Change Workplace Safety Rules and Requirements

CAL-OSHA Votes to Relax Mask-Wearing Rules for Vaccinated Employees and to Change Workplace Safety Rules and Requirements

On June 3, 2021, the California Occupational Safety and Health Standards Board (Cal-OSHA) voted to relax workplace safety rules for employees who are vaccinated against COVID-19.  The rules are still subject to review by the state Office of Administrative Law.  However, assuming the Office of Administrative Law approves the rules, the new rules will go into effect on June 15, 2021.

Under the new rules, vaccinated employees are not required to wear masks if every employee in a room in the workplace is fully vaccinated and does not have COVID-19 symptoms.  More>>

California Legislation SB 95 Expands COVID-19 Supplemental Paid Sick Leave

On March 20, 2021, Govern Newsom signed SB 95, which requires California employers to provide mandatory supplemental paid sick leave for reasons related to COVID-19.  The law takes effect March 29, 2021, applies retroactively back to January 1, 2021, and expires on September 30, 2021.

The new law provides paid leave to employees who took leave after the December 31, 2020 expiration of the 2020 supplemental paid sick leave law, AB 1867, and the Families First Coronavirus Response Act (FFCRA), or who will take such leave prior to September 30, 2021, and also expands eligibility for leave.

Applicable to Employers with 26 or More Employees

SB 95 applies to employers with 26 or more employees.  More>>

CAL-OSHA Issues Emergency COVID Workplace Safety Rules and Requirements

On November 19, 2020 the California Occupational Safety and Health Standards Board (Cal-OSHA) voted to approve a temporary emergency standard related to COVD-19 regulations that will impose heavier requirements on employers.  These regulations took effect December 1, 2020, and will last for 180 days while an advisory committee determines permanent rules.

 

The new rules require all California employers to:

 

  • Write and implement a COVID-19 Prevention Program;

 

  • Notify exposed employees of potential COVID-19 exposure within one business day;

 

  • Track all COVID-19 cases in the workplace;

 

  • Maintain medical records related to COVID-19 and provide those records to the local health department, California Department of Public Health (CDPH), Cal-OSHA and the National Institute of Occupational Safety and Health (NIOSH) upon request;

 

  • Ensure that COVID-19 cases are excluded from the workplace until the return to work requirements are met;

 

  • Exclude employees with COVID-19 exposure from the workplace for 14 days;

 

  • For employees excluded from work and otherwise able and available to work, employers shall continue and 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.
More>>

NEW EMPLOYMENT LAWS FACING CALIFORNIA EMPLOYERS IN 2020 AND 2021

Over the past few months, the California Legislature passed several employment bills.  Some of those laws went into effect immediately and some of those laws will become effective on January 1, 2021.  California voters also approved two employment-related propositions during the November 2020 election.  These draconian laws, which impose several new requirements on employers, are summarized below.  We also summarize several California and Federal COVID-19-related laws that went into effect earlier this year and that were the topics of prior E-BLASTS to remind you of the requirements under these laws.

Employers doing business in California should review these new laws and should contact legal counsel before January 1, 2021 to make sure that they are in compliance.  More>>

California Legislation Expands Definition of COVID-19 Workers’ Compensation Presumption

On September 17, 2020, Governor Newsom signed Senate Bill 1159 effective immediately, which creates a new framework for COVID-19-related workers’ compensation claims. This Bill creates a rebuttable presumption that certain employees who test positive for COVID-19 contracted the virus at work for workers’ compensation purposes and therefore are eligible for benefits, unless the employer can prove otherwise.

The law also requires employers to provide notice to their workers’ compensation carrier of employees who test positive for COVID-19.

Time Frame of Presumption

A “disputable presumption” exists for an employee who suffers illness or death resulting from COVID-19 from July 6, 2020 through January 1, 2023. More>>

California Legislation Makes COVID-19 Outbreaks Reportable to CAL-OSHA

On September 17, 2020, Governor Gavin Newsom signed AB 685 into law which places certain reporting obligations on the employer relating to COVID-19. It also expands the power of the California Occupational Safety and Health Administration (Cal/OSHA) to enforce and take action to protect employees. AB 685 goes into effect on January 1, 2021.

Notice Requirements to Employees

The new law requires employers to take all of the following actions within 24 hours after the employer has “notice of the potential exposure” to COVID-19, which is defined below: 

  • Provide written notice to all employees, and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to COVID-19. 
More>>

California Legislation Expands Employee Coverage Under State Family and Medical Leave Law

On September 17, 2020, Governor Newsom signed Senate Bill 1383 (“SB 1383”), which significantly expands CFRA family and medical leave rights for employees. It goes into effect on January 1, 2021.

CFRA Leave Now Applies to Employers with Five or More Employees

SB 1383 expands the California Family Rights Act (“CFRA”) and the New Parent Leave Act (“NPLA”) to now apply to private smaller employers not covered before. It requires employers with at least five employees to provide an eligible employee with up to 12 workweeks of unpaid job-protected leave during any 12-month period for certain covered reasons. Previously the CFRA applied only to private employers with 50 or more employees within 75 miles of the worksite (and public employers of any size). More>>