American Rescue Plan Act 100% COBRA Subsidy

Question: Two of my employees were laid off over the last year because of the pandemic, and one employee resigned.  An employee I laid off in January 2021 just called me asking if I was going to pay his COBRA premiums.  Am I responsible for his premiums?

Answer: On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 ("ARPA"). Among other provisions, ARPA created a 100% COBRA premium subsidy and additional COBRA enrollment rights for certain employees (and their families) who lost group health plan coverage due to an involuntary termination of employment or a reduction of hours.

COBRA requires an employer-sponsored group health plan to give employees who otherwise would lose coverage due to termination (or another qualifying event) a chance to continue to buy coverage for themselves and any family members on the plan for a limited period after the qualifying event. The maximum coverage period is generally 18 months.  Under the ARPA, from April 1, 2021 through September 30, 2021, group health plans providing COBRA continuation coverage (or continuation coverage under state COBRA laws) must offer a 100 percent tax-free subsidy of COBRA premiums for “assistance eligible individuals” (AEIs) and their qualified beneficiaries.  AEIs who elect continuation coverage will not receive a payment for the premium assistance. Instead, the COBRA premium amount is advanced by the employer or plan, which will then be reimbursed by the federal government through a refundable credit against payroll taxes.

An individual is an AEI if he or she qualifies for COBRA coverage due to an involuntary termination of employment or reduction of hours.  Individuals who qualify for COBRA coverage due to other qualifying events, such as a voluntary termination of employment, are not AEIs and are not eligible for the premium subsidy. The subsidy does not apply to employees or family members who are or become eligible for other group health coverage or Medicare.

ARPA also provides a "second chance" election for individuals who did not initially elect COBRA or who let their COBRA coverage lapse prior to April 1, 2021 but are still within the 18-month COBRA eligible period.  Individuals who experienced an involuntary termination of employment or a reduction of hours so that COBRA would have started sometime within the 18 months prior to April 1, 2021, but who did not timely elect COBRA, may still elect subsidized COBRA coverage prospectively.  Additionally, individuals who had elected COBRA coverage but discontinued such coverage before April 1, 2021 are eligible to re-elect COBRA coverage if they would otherwise be AEIs and are still within their COBRA coverage period.

Employers or plan administrators must determine which employees/beneficiaries lost health plan coverage beginning on or after November 1, 2019 because of an involuntary termination of employment or reduction in hours.  For eligible individuals who become entitled to COBRA coverage from April 1 to September 30, 2021, the employer or plan administrator must include notice of the availability of premium assistance with its usual COBRA notice.  For other individuals who are still within their COBRA eligibility period who are receiving coverage or declined or dropped coverage, the employer or plan administrator must send notice of the availability of premium assistance and, if applicable, the extended COBRA election period.  The deadline to provide this notice is May 31, 2021.  Thereafter, the individual or beneficiary has 60 days after receiving a notice of the COBRA subsidy to make the election.

Additional guidance and model notices are available at

Expansion of Mandated Reporter Laws

Question:  My business employs minors, especially during the summer.  Do I need to be concerned about any of my employees being mandated reporters of child abuse or neglect?

Answer:  Potentially.  The Child Abuse and Neglect Reporting Act (“CANRA”) requires that certain individuals who work with children, known as “mandated reporters,” report to specified law enforcement or county social services departments whenever they, in their professional capacity or within the scope of their employment, have knowledge of or observed a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.  Previously, there were about 49 different mandated reporters under the CANRA, including teachers, EMTs, and coaches. Assembly Bill (AB) 1963, effective January 1, 2021, expanded this list to include “human resource employees” of a business with 5 or more employees that employs minors, and, only for the purposes of reporting sexual abuse of children, any adult employee whose duties require direct contact with and supervision of minors in a business with 5 or more employees.

Under AB 1963, “human resources employees” are defined broadly as any employee designated by the employer to accept any complaints of misconduct (i.e., discrimination, harassment, retaliation, etc.) made under California’s Fair Employment and Housing Act.  For example, if the employer’s harassment prevention policy directs employees to report harassment to their supervisor, human resources, or any manager, then all of those individuals are now mandated reporters as of January 1, 2021.  Human resources employees are required to report all types of child abuse or neglect, while employees whose duties require direct contact with employees who are minors are only required to report sexual abuse.

Reporting Requirements

Under CANRA, if a mandated reporter knows or suspects that a child has been the victim of abuse or neglect, he or she must make an initial report by telephone to a designated agency such as a police or sheriff’s department, or the county welfare department, immediately, or as soon as is practicable, and provide a written follow-up report within 36 hours.  In Monterey County, the Department of Social Services is a designated agency.  Reports of abuse and neglect can be reported to either of its 24-hour hotlines: (831) 755-4661 or (800) 606-6618.  Visit SS8572B ( CHILD ABUSE SUMMARY REPORT DEPARTMENT OF JUSTICE (DOJ) FORM SS 8583 ( to obtain the Suspected Child Abuse Report (SCAR) forms and instructions for submitting written reports.

Employer Training Requirements

Employers who employ minors are now required to provide training in child abuse and neglect identification and reporting to all mandated reporters.  This training requirement may be met by completing the general online training for mandated reporters offered by the Office of Child Abuse Prevention in the State Department of Social Services.  Information on this training may be found at

Employers should identify the employees within their business who are mandated reporters, notify these employees of their status, and begin coordinating training.  Employers must provide their mandated reporters with written notice that acknowledges their status as mandated reporters, their obligations under CANRA, and the confidentiality rights and obligations under CANRA.   The text of the new law can be found at Bill Text - AB-1963 Child abuse or neglect: mandated reporters. (

New Guidelines for Reopening Businesses

Question: My employees have all been working remotely since March 2020.  I am now planning to reopen my office to the public.  What COVID-19 protocols do I need to follow?

Answer: As Monterey County continues to move into the less restrictive tiers, many businesses are making plans to have employees return to work in their offices.  Keeping up with the various local, state, and federal guidelines can be challenging.

On January 25, 2021, California ended its Limited Stay at Home Order and implemented the Blueprint for a Safer Economy.  Businesses preparing to reopen should visit California’s Blueprint for a Safer Economy website (, which includes industry-specific guidance on developing a workplace COVID-19 prevention plan, employee training, and protocols regarding testing, cleaning, and maintaining physical distancing in the workplace.  However, employers should note that California may end the Blueprint in the upcoming months.

In an April 6, 2021 press release, Governor Gavin Newsom announced that if California stays on pace with its COVID-19 vaccine distribution and keeps hospitalizations low, the state will “fully reopen” on June 15, 2021, and the Blueprint for a Safer Economy will end.  The press release indicates that while businesses may then return to usual operations, they must still comply with Cal/OSHA requirements and “common-sense public health policies,” such as mandated masking and encouraging vaccinations.

The California Department of Health (CDPH) has also indicated that if the state reopens on June 15, businesses listed in the Blueprint for a Safer Economy can return to usual operations, provided they comply with statewide agency guidelines.

Employers should remember that they must continue to comply with the Cal/OSHA Emergency Temporary Standards (COVID-19 Prevention Emergency Temporary Standards - Fact Sheets, Model Written Program and Other Resources ( in their workplaces.  These standards include implementing a written COVID-19 Prevention Program addressing topics including procedures for screening employees, identifying COVID-19 hazards, physical distancing, wearing masks, responding to COVID-19 cases, and recordkeeping and reporting requirements.

Furthermore, as the economy is re-opening, businesses must continue to implement many of the same procedures for protecting employees that have been in place prior to vaccinations including providing face coverings and maintaining six feet of physical distancing.  Cal/OSHA suggests other steps an employer may use to mitigate COVID-19 hazards including encouraging remote working; staggering arrival, departure, and break times; encouraging frequent handwashing; and reducing the number of employees and visitors in an area.  Employers must also implement procedures to minimize the sharing of tools and equipment, including vehicles.

Pursuant to federal Centers for Disease Control (CDC) guidelines, employers must continue to conduct symptom and temperature screening or instruct employees how to self-screen at home.  Employers should still encourage workers who are sick or exhibiting COVID-19 symptoms to stay home.

It is important to note that even though increasing numbers of employees are receiving the COVID-19 vaccine, vaccinated employees must still follow an employer’s COVID-19 prevention measures.

At a local level, Monterey County continues to encourage the community to use masks, practice social distancing, and avoid crowds.  Monterey County requires businesses to adhere to state and local industry guidance for reducing the risks associated with COVID-19 and to have procedures in place to identify COVID-19 cases in the workplace, be ready to intervene quickly, and work with Monterey County Public Health to halt the spread of COVID-19.  Monterey County guidelines for businesses can be found at the following link: 2019 Novel Coronavirus (COVID-19) - For Businesses | Monterey County, CA.

New California Supplemental Paid Sick Leave Law Applies to Employers with More Than 25 Employees and Expands Covered Reasons for Leave

On March 19, 2021, Governor Gavin Newsom signed into law SB 95 enacting a modified version of California’s COVID-19 supplemental paid sick leave (“SPSL”) law, which expired on December 31, 2020. Although SB 95 took effect on March 19, 2021, it provided a 10-day grace period until March 29, 2021 for employers to start providing this sick leave. The new law will remain in effect until September 30, 2021 and imposes many requirements, including the following:

Covered Employers. The SPSL law applies to employers with more than 25 employees.

Covered Reasons for SPSL.  Employees are permitted to take SPSL whenever they are unable to work or telework for any of the following reasons:

  • The employee is subject to a quarantine or isolation period related to COVID-19;
  • The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  • The employee is attending an appointment to receive a vaccine for protection against COVID-19;
  • The employee is experiencing symptoms related to a COVID-19 vaccine that prevent the employee from being able to work or telework;
  • The employee is experiencing symptoms related to COVID-19 and is seeking a medical diagnosis;
  • The employee is caring for a family member who is subject to a quarantine or isolation order or has been advised to self-quarantine;
  • The employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Retroactive Payments. The requirement to provide SPSL applies retroactively to January 1, 2021. If an employer did not compensate an employee for absences that are covered by this new SPSL law, the employer is required to issue retroactive payments to employees who request such payments verbally or in writing, unless the employee received exclusion pay under the Cal/OSHA Emergency Temporary Standards or other pay.

Rate of Pay. For non-exempt employees, the compensation rate is normally the employee’s regular rate of pay for the pay period in which SPSL is taken. For exempt employees, compensation is calculated in the same manner as the employer calculates wages for other forms of paid leave time.   An employer is not required to pay more than $511 per day and $5,110 in the aggregate. SPSL must be reflected on itemized wage statements, set forth separately from regular paid sick days.

Amount of SPSL. Full-time employees and employees who were scheduled to work an average of 40 hours per week in the two weeks before requesting SPSL are entitled to 80 hours of SPSL. Part-time employees generally receive SPSL based on the total number of hours they are normally scheduled to work over two weeks. There is no length of service requirement for SPSL entitlement.

Employers cannot require employees to use PTO, vacation, or unpaid time off before using SPSL. Employers may require employees to first exhaust their SPSL before the employer will be required to pay exclusion pay under the Cal/OSHA Emergency Temporary Standards.

Notice Requirement. Employers must provide employees with notice of this new law, at the worksite and electronically for remote workers.  The Labor Commissioner’s office model notice can be accessed here:

The text of SB 95 can be accessed at Bill Text - SB-95 Employment: COVID-19: supplemental paid sick leave. (

The Labor Commissioner’s 2021 COVID-19 Supplemental Paid Sick Leave FAQs can be accessed here:

Pandemic Fatigue

Question: After a year of COVID-19 pandemic related restrictions, my employees are experiencing fatigue about the pandemic and workplace COVID-19 related rules.  Some argue that they are not required to follow my business’s COVID-19 related safety rules unless the rules are mandated by law.  Can I continue to follow guidance from the Centers for Disease Control (CDC) and state and local health departments, even if the guidance is not mandated?  For example, can I implement COVID-19 related travel policies for employees who travel out of the country for vacations?

Answer: Employers are required to provide a safe workplace for employees, including protecting employees from infectious diseases like COVID-19. Accordingly, employers have the right to implement lawful workplace policies that protect the health and safety of employees.  Some such policies are mandated by law while others are adopted pursuant to government guidelines.

When establishing COVID-19 related policies, employers should follow the latest guidelines from the CDC, the California Department of Public Health (CDPH), the California Division of Occupational Safety and Health (DOSH), and their local health authority. Employers must make sure that workplace policies do not violate employees’ civil rights, including ensuring the policies are not retaliatory and do not discriminate against or harass an employee based on a protected category such as race, sex, or disability under the Fair Employment and Housing Act and the U.S. Equal Employment Opportunity Commission.

Employers may implement travel related policies designed to reduce the transmission of COVID-19. On January 6, 2021, the CDPH issued a new travel advisory telling California residents to avoid traveling more than 120 miles from their residences unless doing so is essential. The CDPH advisory also states that California residents returning home from other states or countries should self-quarantine for 10 days after arrival. See for details.  The CDC recommends that individuals get tested and self-quarantine after all domestic and international travel. See

Employers can adopt policies requiring employees to inform the employer if and when they are traveling out of California, out of the country, or traveling more than 120 miles from their home. Employers can require employees to be tested for COVID-19 upon their return from travel and to self-quarantine, even if they test negative.  Requiring all employees to disclose their travel destinations and to test or self-quarantine after their travels to protect other employees does not violate the employees’ right to privacy because there is no constitutional or statutory right to privacy in travel plans.  Employers who require employees to self-quarantine after travel should implement policies to establish whether the quarantine will be considered a paid or unpaid leave of absence to ensure consistency in the treatment of all employees and avoid liability.  Due to the complex federal and state laws relating to paid and unpaid time off due to COVID-19 quarantines, employers should first consult an attorney before implementing a quarantine policy related to travel.

Employers who ignore the recommendations of the CDC, the CDPH, and/or their local health authorities, and who fail to establish policies to ensure a safe workplace, expose themselves to claims from employees and others who contract COVID-19 at the workplace. Although employees may be more resistant to following and may challenge the legality of workplace COVID-19 related policies, employers are still required to adopt and enforce workplace rules that protect the health and safety of employees.

New California Pay Data Reporting Requirement

Question: I was told my business might have to report the pay data of my employees soon. Is this a new requirement?

Answer: Yes, there is a new pay reporting requirement in California, but it only applies to employers with 100 or more employees.

California enacted legislation on September 30, 2020 (SB 973) requiring private employers of 100 or more employees (with at least one employee in California) to report pay and hours-worked data by establishment, job category, sex, race, and ethnicity to the Department of Fair Employment and Housing (“DFEH”) by March 31, 2021, and annually thereafter.  Though this is a new reporting requirement for California, the California pay data report closely resembles the federal Equal Employment Opportunity Commission report (EEO-1) that large employers are already familiar with.  An employer must comply if it either employed 100 or more employees in the Snapshot Period chosen by the employer (a single pay period between October 1 and December 31) or regularly employed 100 or more employees during the Reporting Year.

Covered employers must submit the annual report electronically through the DFEH pay data submission portal, available on the DFEH web page.  In the annual report, covered employers must report the number of employees by race, ethnicity, and sex in each of 10 different 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.  Covered employers must also report pay and hours-worked data by establishment, job category, sex, race, and ethnicity.  Any data submitted that is associated with a specific person or business will be kept confidential and will not be subject to a California Public Records Act request.

To assist employers with this filing requirement, the DFEH recently established a web page and published answers to a series of frequently asked questions (FAQs) that address topics related to the filing requirement.  In addition to the FAQs, the web page includes a link to the pay reporting portal, a guide to using the portal, and instructions for submission. The portal can be accessed at:

In addition to supplying the DFEH with wage data through this new reporting requirement, SB 973 authorizes the DFEH to enforce the Equal Pay Act, which already prohibits unjustified pay disparities.    If the DFEH has not received a required report by the deadline, it may seek an order requiring the employer to comply with the new pay data reporting requirements, and it will be entitled to recover the costs associated with seeking the order for compliance.  In light of the COVID-19 pandemic, the DFEH will consider an employer’s request that the DFEH defer seeking an order for compliance.  To request a deferral, an employer must submit its request before March 31, 2021, using an electronic form provided on the DFEH web page.  Currently, there are only three reasons for which an employer may request a deferral: lost records due to a natural disaster; a severe economic hardship; and technology or infrastructure changes that must be made to report the required pay data information.  Covered employers who are granted a deferral will only have through April 30, 2021 to file its report with DFEH.

The pay data reporting requirement is complex. Covered employers should promptly prepare for this new requirement.


On-Duty Meal Periods Approved For Sole Workers

Q: Am I required to provide meal and rest periods when there is only one employee on duty?

A: Yes, California employers are required to provide meal and rest periods to their employees, but the law provides options when there is only one employee on duty.

In California, the general rule is that employees who work for more than five hours must be provided with a 30-minute duty free unpaid meal period, and employees who work more than 1.5 hours must be permitted to take a paid duty free rest period of at least 10 minutes per four hours of work, or major fraction thereof.  Employees must be free to leave the worksite during meal and rest periods.  Penalties may be assessed if an employer does not provide timely, duty free rest and meal periods.

If there is only one employee on duty, then the employee and employer may enter into a written on-duty meal period agreement when the nature of the work prevents an employee from being relieved of all duty during the meal period. In Videau v. Caritas Management Corp., the employee was a hotel front desk clerk who worked the graveyard or swing shift alone.  Mr. Videau alleged meal and rest period violations.  The Appellate Division of the San Francisco County Superior Court recently ruled that the on-duty meal period agreement in this case was valid because: (1) the employer provided the employee with an opportunity to take a 30-minute off-duty meal period every day; (2) the nature of the job precluded the employee from taking an uninterrupted, off-duty 30-minute meal break because the employee worked alone; (3) the employee voluntarily agreed to take an on-duty meal period and signed a valid on-duty meal period agreement; and (4) the on-duty agreement was in writing and expressly stated that the employee was free to revoke the agreement at any time.

The Court further ruled that the employer did not violate the rest period requirement because the employee was instructed by his supervisors to take two 15-minute rest periods during his 8 hour shift, and he was provided with signs to put up during his rest period, directing people to come back after the rest period. The Court rejected the employee’s argument that he was not allowed to leave the worksite during his rest periods, explaining that the reality of any rest period is that an employee generally can travel at most five minutes from the worksite before returning to make it back to work on time, and even though the time constraint may have the effect of keeping the employee on the worksite premises, such a constraint does not violate the rest period requirement.

An important fact in the Court’s ruling is that the employee was not “on call” or subject to employer control during his rest periods – he did not carry a pager, walkie-talkie, or radio, nor was he required to remain vigilant and to respond when needs arise. Further, if the rest period was interrupted for any reason, the employee was authorized and permitted to take his full 15-minute rest break after the interruption. The Court rejected the argument that the employer had a broad and intrusive degree of control during the rest breaks.

This decision is a rare win for California employers, and underscores the importance of compliance with meal and rest period requirements.

When COVID-19 Cases are Presumed to be a Worker’s Compensation Injury

Question: An employee told me that he tested positive for COVID-19.  Is he automatically entitled to workers’ compensation benefits?

Answer: Not automatically.  On September 17, 2020, the legislature passed SB 1159, which creates “disputable” presumptions that certain employees’ COVID-19-related illnesses are covered by workers’ compensation.  The presumptions differ based on the employee’s job position and only apply if the employee meets certain criteria.  The presumptions do not apply if an employee works remotely at his or her own home.

For firefighters, peace officers, emergency medical technicians, and certain healthcare workers, the presumption applies if the employee tests positive for COVID-19 within 14 days after the employee performed work at the employee’s place of employment at the employer’s direction.   If an employee of a health care facility does not provide direct patient care, the presumption only applies if the employee had contact in the past 14 days with a patient who tested positive for COVID-19.

For all other employees who work for employers with at least five employees, the presumption applies if:

  • the employee tests positive for COVID-19 within 14 days after the employee performed work at the employee’s place of employment at the employer’s direction; and
  • the positive test occurred during a period of an “outbreak” at the employee’s specific place of employment.

A COVID-19 “outbreak” occurs if, within 14 calendar days, one of the following occurs:

  • four employees test positive for COVID-19 (if the employer has 100 employees or fewer at a specific place of employment); or
  • 4% of the number of employees who reported to the specific place of employment test positive for COVID-19 (if the employer has more than 100 employees at a specific place of employment); or
  • a specific place of employment is ordered to close by a local public health department, the State Department of Public Health, or Cal/OSHA due to risk of infection with COVID-19.

Regardless of whether a presumption applies, employers must give an employee a DWC-1 form within one working day after it becomes aware that the employee tested positive for COVID-19.  The employer must then report the positive result to its claims administrator within three business days, by providing the following information:

  • An employee has tested positive. Do not disclose the employee’s identity unless the employee asserts the infection is work related;
  • The date the employee’s specimen was collected for testing;
  • The address of the employee’s place of employment during the 14-day period preceding the date of the employee’s positive test;
  • The highest number of employees who reported to work at the employee’s place of employment in the 45-day period preceding the last day the employee worked.

Any additional information the employer has about how the employee contracted COVID-19 should also be provided to the claims administrator.  If a worker meets the above criteria for the presumption to apply, the employer’s workers compensation insurance carrier will have up to 30 (healthcare employees) or 45 (all others) days to investigate and decide whether to accept or deny a claim.  If the claim is not rejected within 30 or 45 days, an injury or illness is presumed compensable, and an employer can then rebut that presumption only with evidence it discovered after the applicable period.

COVID-19 Pandemic Layoffs

Question: The COVID-19 pandemic has negatively impacted my business and I have to make hard decisions about staffing.  What do I need to know about furloughing or laying off employees?

Answer: Sadly, given the ongoing COVID-19 pandemic, many businesses are forced to make the difficult decision to let employees go.  Upon recognizing the need to make staffing adjustments, an employer should evaluate the job positions that are critical to business continuation, and which job positions to eliminate or merge.  Next, identify the employees that currently fill the jobs that will be eliminated or merged and decide who will be subject to layoff.  It is important to use objective criteria in making these decisions in a non-discriminatory manner.  Factors such as seniority, job performance, and flexibility of skill set may help guide these decisions.  Once the employer has decided who will be laid off, it is a good idea to have the list reviewed by counsel or a trusted executive or colleague.  If an employer is closing a plant or laying off a large number of employees, the employer should determine if the timing and notice requirements of the Worker Adjustment and Retraining Notification (“WARN”) Act apply.

Sometimes employers “furlough” employees with the expectation the employees will return to their jobs when economic conditions improve.  However, the Division of Labor Standards Enforcement takes the position that a furlough that extends beyond the pay period when the furlough begins, or a furlough that exceeds 10 days, is treated like a termination of employment for purposes of providing furloughed employees with their final pay.  If staffing reductions are indefinite, employers should classify the action as a layoff and follow the procedures described below.

After making the layoff decision, an employer should meet in person with the employee, if possible.  If COVID-19 related stay-at-home orders make an in-person meeting impossible or inadvisable, the next best option is to schedule a one-on-one video conference with the employee.  Conduct the videoconference in a professional setting free of distractions.  Prepare a checklist to review with the employee during the meeting, and be prepared to answer questions the employee may have about unemployment benefits, job references, health insurance continuation, 401(k) plans, and other benefits.  Discuss the logistics of returning employer keys and other property.  Be honest about the economic reasons for the layoffs, let the employee know that you appreciate the employee’s work, and that they are eligible for rehire.  Confirm this information in writing since the employee may be upset and have difficulty retaining the information.

Have the employee’s final pay ready to pay the employee on the layoff date, including all wages owed up to the layoff date plus accrued but unused vacation and PTO.  Failure to timely pay final wages may result in owing the employee a waiting time penalty equivalent to the employee's daily rate of pay for each day the wages remain unpaid, up to a maximum of thirty days.

Give the employee the “For Your Benefit: California’s Programs for the Unemployed” pamphlet and a Notice of Change in Relationship, available via the California Employment Development Department’s website.  If the employee receives health insurance, and the employer has 20 or more employees, the employer must also provide the Health Insurance Premium Payment Notice to Terminating Employees, available on the California Health and Human Services Agency’s website.

Advance planning, respect, and empathy can help make these difficult layoffs a little less painful.

Mandatory COVID-19 Vaccinations in the Workplace

Question: Can I require my employees to get the new COVID-19 vaccination when it becomes available?

Answer:  The Equal Employment Opportunity Commission (EEOC) recently issued much-anticipated guidance on the COVID-19 vaccination in the workplace confirming that generally, employers may require employees to get the COVID-19 vaccination as long as the requirement is job-related and consistent with business necessity.  In formulating any vaccination policy, an employer must keep in mind the protections afforded to employees under federal and state law.

In deciding whether to require employees to get COVID-19 vaccinations, employers should assess the potential direct threat to the workplace if employees are not vaccinated, considering the risk level of their specific workplace environment and industry. For instance, if an employer’s customer base is typically high-risk, or if the workplace has already had work-related COVID-19 exposures during the pandemic, then mandating the vaccination for employees may be a prudent way to provide a safe and healthy work environment.

If an employer decides to require the vaccination and an employee refuses, the employer must conduct an individualized assessment to determine if the employee is refusing for a protected reason under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act, or the California Fair Employment and Housing Act (“FEHA”).

For refusals based on a disability, the employer must determine whether an unvaccinated individual 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.”  The employer should review the following four factors:

  1. The duration of the risk;
  2. The nature and severity of the potential harm;
  3. The likelihood that the potential harm will occur; and
  4. The imminence of the potential harm.

If the employer finds that a direct threat exists, it cannot automatically discharge the employee.  The employer must determine whether a reasonable accommodation is available that would not impose an undue hardship for the employer, such as having the employee work remotely or placing the employee on a leave of absence.

For refusals based on sincerely held religious beliefs, employers must also reasonably accommodate employees unless doing so would pose an undue hardship. Because the definition of religion is broad and protects beliefs with which the employer may be unfamiliar, the EEOC advises employers to assume an employee’s stated religious belief is sincere.

According to the CDC, certain questions should be asked before administering the vaccine to ensure that there is no medical reason that would prevent the employee from receiving the vaccination.  If the employer is administering the vaccination, pre-screening questions it poses may elicit information about an employee’s disability, implicating the ADA’s and FEHA’s provisions on disability-related inquiries.  If the questionnaire asks for genetic information such as the employee’s family medical history, that implicates protections under the Genetic Information Nondiscrimination Act.  Employers should ensure that inquiries are job-related and consistent with business necessity, and should instruct employees not to provide any genetic or disability related information in answering the pre-screening questions.  Employers must also maintain the confidentiality of employees’ responses.

As new information about vaccine efficacy and longevity, distribution, and vaccination plans emerge, it is likely the EEOC and other state or federal agencies will issue additional guidance, or revise guidance to reflect the most current information.  For more information, employers can review the EEOC guidelines regarding the COVID-19 vaccine.

Shareholder Announcement

Fenton & Keller is pleased to announce that effective January 1, 2021

Kenneth Kleinkopf & Alex Lorca

have become Shareholders and Directors of the Firm.

3/4 length portrait of Kenneth S. Kleinkopf

Kenneth’s practice focuses on estate planning, business, taxation
and real estate. Kenneth is certified by the State Bar of California
Board of Legal Specialization as a specialist in estate planning,
trust and probate law. In addition to his estate planning practice,
Kenneth assists clients with forming entities, structuring business
and real estate transactions, as well as business succession
planning to ensure family businesses are continued through
generations. Kenneth handles probate and trust administrations
and represents clients in probate and trust dispute matters that
require court intervention. Kenneth also assists his clients with
sophisticated tax planning and represents clients with business,
income and property tax controversies. A Carmel native, Kenneth
enjoys working with individuals, families, and businesses in the
community in which he grew up.

Click to Read Kenneth's Bio

3/4 length portrait of Alex LorcaAlex’s practice focuses on land use law and public agency law. In
his land use practice, Alex regularly advises clients on matters
related to water law, planning and zoning law, general and
specific plans, use permits, variances, nonconforming uses,
easements, exactions, viewsheds, property boundary disputes, the
California Environmental Quality Act (CEQA), the California
Coastal Act, and the Davis-Stirling Common Interest
Development Act. Throughout his career, Alex has represented
local cities and special districts, and currently serves as the City
Attorney for the City of Del Rey Oaks. In his public agency
practice, Alex regularly provides advice to elected officials,
appointed officials, and staff on a wide range of matters including
ethics, the Brown Act, and Public Records Act. Alex is a native
of the Monterey Peninsula.

Click to Read Alex's Bio

For over sixty-five years, the attorneys of Fenton & Keller have been meeting the changing legal needs of clients throughout the Monterey Bay region
and beyond. Fenton & Keller is committed to providing high-quality, practical, innovative, and cost-effective legal services.

New Cal/OSHA Regulations Require Employers to Adopt and Implement a COVID-19 Prevention Program

Question: My business has an Injury and Illness Prevention Plan (“IIPP”) to comply with the Cal/OSHA workplace safety rules. A friend told me that I need to make a new IIPP because of COVID-19. Is this true?

Answer: Yes. On November 19, 2020, Cal/OSHA approved a comprehensive and complex set of “COVID-19 Emergency Temporary Standards” to address issues related to COVID-19 in the workplace. The emergency standards became effective on November 30, 2020, with a current expiration date of October 2, 2021. Though some businesses in the healthcare industry are exempt and covered under a separate Cal OSHA Aerosol Transmissible Diseases standard, nearly all other California employers are now subject to the new emergency standards.

To comply with the emergency standards, an employer must develop a written COVID-19 Prevention Program, which must implement the following:

  • Communication to employees about the employer’s COVID-19 prevention procedures
  • Identification, evaluation, and correction of COVID-19 hazards
  • Physical distancing of at least six feet unless it is not possible
  • Use of face coverings
  • Use of 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
  • Provide testing to employees who are exposed to a COVID-19 case, and implement regular workplace testing for employees in the event of multiple infections or a major outbreak
  • Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk
  • Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required

The COVID-19 Prevention Program, which contains requirements that are similar to the Cal/OSHA IIPP, may be integrated into the employer’s normal IIPP or maintained in a separate document.

The emergency standards contain a new employer-sponsored paid sick leave mandate requiring an employer to provide an employee with paid leave if the employee is sent home because the employee was exposed to COVID-19 at work. An employer can satisfy this paid leave requirement by providing the employee with existing paid sick leave benefits such as Families First Coronavirus Response Act and Healthy Workplaces, Healthy Families Act sick leave, or other existing paid time off provided by the employer. The employer may also consider benefit payments from public sources (e.g., unemployment insurance and workers’ compensation benefits). However, if these sources are insufficient to maintain the employee’s full compensation during the quarantine period, the employer must make up the difference with additional paid time off.

Also, employers must immediately exclude from the workplace COVID-19-positive employees and employees who were exposed to COVID-19. An employee was “exposed” to COVID-19 if the employee was within 6 feet of a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s high-risk exposure period. The high-risk exposure period for a COVID-19 case begins 48 hours (2 days) before the person developed COVID-19 symptoms, or if the person never developed symptoms, then 48 hours before the person took the first COVID-19 test that came back positive.

The emergency standards contain detailed rules for determining when such employees may return to work and prohibit employers from requiring an employee to obtain a negative COVID-19 test result before returning to work.

Though it is difficult to keep up with all of the new COVID-19 workplace laws, implementing a written COVID-19 Prevention Program is a crucial first step to mitigating COVID-19 risks at the workplace.