New Employment Laws- Here Comes 2022!

Question:  As a Human Resources professional, every year I brace myself for new employment laws that affect my business.  What are some of the new laws we need to know about for 2022?

Answer:   On the new employment laws front, the 2021 Legislative session was relatively quiet compared to 2019 and 2020.  As always, the Governor signed new employment laws, including the following, which take effect on January 1, 2022, unless otherwise noted:

  • California Family Rights Act (CFRA)- In January 2021, CFRA was expanded to apply to employers with 5 or more employees.  New Assembly Bill (AB) 1033 clarifies that employees can take CFRA leave to care for a parent-in-law.  AB 1033 also revises the small employer (five to 19 employees) mediation program, making participation in this program a prerequisite to the employee filing a civil action. This should benefit small businesses by allowing them to address CFRA disputes through mediation rather than costly civil litigation.
  • Expansion of Cal-OSHA Enforcement- Senate Bill (SB) 606 expands the enforcement authority of the California Division of Occupational Safety and Health (Cal-OSHA) by creating two new violations categories for which Cal-OSHA can issue citations — “enterprise-wide” and “egregious” violations. SB 606 creates a rebuttable presumption that employers with multiple worksites have made “enterprise-wide” workplace safety violations if either of the following are true:
    1. The employer has a written policy or procedure that violates any of the following:
      • Health and Safety Code section 25910 (governing the use of asbestos),
      • Any standard, rule, order, or regulation established by the Occupational Safety and Health Standards Board, or
      • Any standard, rule, order, or regulation established pursuant to the California Occupational Safety and Health Act of 1973.
    2. Cal-OSHA has evidence of a pattern or practice of the same violations involving more than one of the employer’s worksites.

An “egregious violation” applies to employers based on several factors including an extensive history of violations or a high injury and illness rate among workers. The law sets the maximum penalty for an enterprise-wide violation or a willful or repeated violation of occupational safety or health standards at $123,709.00 per violation.

  • COVID-19- AB 654 is a clean-up bill that clarified last year’s COVID-19 workplace exposure notification and reporting requirements. AB 654 was an urgency measure that took effect immediately upon signing on October 5, 2021. When an employer receives notice of a potential COVID-19 exposure in the workplace, the employer must, within one business day, provide certain employees with written notice of (1) the potential exposure, (2) information on COVID-19-related benefits, and (3) information on the disinfection and safety plans that the employer plans to implement. Among other changes, AB 654 clarifies that the employer’s obligation is to provide information on COVID-19-related benefits and the disinfection and safety information by sending notice to employees who were “on the premises at the same worksite as the qualifying individual within the infectious period.” This bill also revises the time frame in which employers must give notice of COVID-19 outbreaks to local public health agencies from 48 hours to “within 48 hours or one business day, whichever is later.”
  • On the Horizon: Employers should continue to monitor COVID-19 regulatory developments. In compliance with President Biden’s order, the federal Occupational Safety and Health Administration will be issuing regulations mandating vaccines. It is expected that the Cal-OSHA COVID-19 Emergency Temporary Standard will then be revised by December 2021 to adopt an equivalent or more stringent standard applicable in California.

Vaccination Considerations for Job Applicants

Q: I am accepting applications for open job positions.  Can I require new employees to be vaccinated against COVID-19 before reporting to work?

A: Generally, yes. In California, an employer can mandate that all employees, including applicants, be vaccinated against COVID-19, as long as the employer allows for vaccine exemptions for employees and applicants whose disabilities or sincerely held religious beliefs preclude them from receiving the COVID-19 vaccine.  An employer who wants to require vaccination for new hires should consistently impose the same requirements on current employees.  It is important for employers to assess the risk of unvaccinated workers in the particular workplace when making decisions about COVID-19 vaccine mandates.  Some employers mandate vaccines in situations where unvaccinated employees pose a significant risk of harm to others in the workplace, especially when they interact with individuals with high risk of contracting COVID-19.

If your company has mandated vaccines for all employees, make sure this requirement is made clear to potential candidates from the beginning of the recruiting process.  For example, employers with vaccine mandates should list on the job posting that full vaccination is a condition of employment.  Such employers should also make it clear in the job advertisement that the company is an Equal Opportunity Employer and reasonable accommodations for disabilities and sincerely held religious beliefs will be considered.

Employers should exercise caution in asking applicants about their vaccination status.  Although such an inquiry is not unlawful, employers cannot ask applicants questions that are likely to reveal the existence of a disability before making a conditional job offer.  For this reason, an employer should not ask an applicant if the applicant will be applying for an exemption from the vaccine due to a disability or sincerely held religious belief, and exemption forms should not be given to applicants until after the applicant is interviewed and provided a job offer.  The offer can be conditioned on the new employee’s compliance with the company’s vaccination policy on or before the first day of work.

The rules surrounding vaccination requirements for new hires can be confusing and often lead to more questions.  Additional tips include the following:

  • Ensure that potential candidates are aware that the company will consider medical and religious exemptions to the vaccination requirement, consistent with federal and state law.
  • Define the time frame in which the new hire must be fully vaccinated.  For example, require full or partial vaccination prior to the first day of work.  Identifying the consequences for new hires that fail to meet this requirement is also prudent.
  • Make sure you have a clear process in place for providing information to applicants, once a conditional job offer has been made, on how to request an accommodation due to medical conditions or sincerely held religious beliefs that prevent vaccination.
  • Do not collect proof of vaccination status until after an employment offer is extended and accepted.  Ensure that the confidentiality of such information is maintained when received.
  • Consider providing your hiring team with a simple script to make it clear how to appropriately ask and respond to questions regarding your vaccination policy.

Being conscious of issues involving COVID-19 vaccination policies can assist employers in developing and implementing their policies, and in applying them to applicants during the pandemic.


Time to Audit and Update your Wage and Hour Practices

Question:

            I am new on the job as a Human Resources generalist.  What do you recommend as a starting point to make sure my new company is complying with California law?

Answer:

            It is a good practice to periodically review your wage and hour policies and practices to make sure they comply with existing laws.  Below is a partial list of steps to begin a wage and hour practices audit to ensure compliance:

  • Be certain you are operating under the correct Industrial Welfare Commission Wage Order. The Wage Orders, Labor Code, and other California statutes set forth the rules employers must follow based on your business’s industry. View the Wage Orders here:  https://www.dir.ca.gov/iwc/wageorderindustries.htm
  • Check and update your workplace postings.  A new law, SB 657, taking effect January 1, 2022, allows employers to distribute some, but not all, workplace postings by mail or electronically.
  • Review the exempt and non-exempt classification of employees to make sure employees are properly classified.
  • Evaluate the status of employees and independent contractors to ensure your company’s workers are properly classified.
  • Check payroll dates and pay stubs to be sure they comply with California law.  In most industries, employees must be paid at least twice a month on regular paydays. In California, pay stubs must contain the following: gross wages earned; total hours worked (not required for salaried exempt employees); the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis; all deductions; net wages earned; the inclusive dates of the period for which the employee is paid; the name of the employee and the last four digits of the employee’s social security number or an employee identification number other than a social security number; the full and correct name and address of the legal entity that is the employer; all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee; and the number of Healthy Workplace Healthy Family Act sick leave available to the employee. A sample paystub for a nonexempt employee can be viewed here: www.dir.ca.gov/dlse/Paystub.pdf.
  • Review the process for reimbursing employees for business expenses, making sure reimbursement payments are timely and supported by appropriate documentation.
  • If you have employees who work on commission, ensure that written commission agreements are in place.
  • Review the company’s meal and rest period policies. Remind managers and supervisors of the company’s policies regarding meal and rest breaks, not working off the clock, and accurately recording all time worked on a paper or electronic timesheet.
  • Provide additional wage and hour training for managers and supervisors that set employee schedules or that work in payroll or human resources.
  • Review your timekeeping system to see that it contains an opportunity for employees to review and sign an acknowledgement stating that the time record accurately reflects all hours worked, that they had the opportunity to take all meal and rest periods in the pay period, and if they did not, that they reported the situation to their supervisor for correction.
  • Consider periodic wage and hour training to employees so they understand the importance to taking their meal and rest periods and accurately recording all time worked.

An ounce of prevention can go a long way in minimizing the risk of claims and ensuring proper payment for employees.


CalSavers: Registration Now Required For All Employers With More Than 50 Employees

Question: Is my employer required to offer a retirement plan?

Answer: As of June 30, 2021, eligible California employers who do not already offer their employees an employer-sponsored retirement plan, and who have more than 50 employees, are required to either sponsor a retirement plan or participate in the CalSavers Retirement Savings Program (“CalSavers”).

CalSavers is a state-run retirement plan for private sector workers whose employers do not offer traditional retirement plan programs. CalSavers provides automatic enrollment and contributions made through payroll deductions. Once an employee is enrolled, the money saved belongs solely to the employee, and the account can move freely with the employee from one job to the next.

CalSavers is mandated for all private employers in California, both for-profit and non-profit entities, that do not already sponsor a retirement plan for their business and that have 5 or more California based full- or part-time employees over the age of 18 (“Eligible Employers”). Employers who maintain or contribute to a Tax-Qualified Retirement Plan which qualifies for favorable federal income tax treatment, regardless of whether all employees are eligible for the Plan, or employers who have fewer than 5 employees are prohibited from participating in the Program.

The law requires Eligible Employers to register online, or certify their exemption from CalSavers by stating that their business already maintains a retirement plan, prior to the applicable effective date. The CalSavers rollout includes staggered deadlines for registration based on employer size:

Effective Date Number of Employees
June 30, 2020 (later extended to September 30, 2020) More than 100 employees
June 30, 2021 More than 50 employees
June 30, 2022 5 or more employees

All Eligible Employers with 50 or more employees should now be registered for CalSavers or should register as soon as possible. Additionally, employers with at least 5 employees who do not already offer a workplace retirement plan can register for CalSavers today and must do so before June 30, 2022. Employers may register at the following link: https://employer.calsavers.com/. There is no employer fee for participating in the program.

Existing employees of employers that participate in CalSavers must be enrolled within 30 days after the employer registers with CalSavers.  Employees hired after the employer registers will be automatically enrolled within 30 days of their date of hire or date of eligibility. Despite this automatic enrollment, participation in CalSavers is voluntary for employees, who may choose to opt out at any time. Once the employer is enrolled, on each payroll date it must deduct and transfer each participating employee’s contribution to the CalSavers administrator. All employee contributions must be remitted as soon as administratively possible, not to exceed seven business days from the date of deduction.

CalSavers is not sponsored by the employer, meaning the employer is neither responsible nor liable for an employee’s decision to participate in the program or for the performance of investments. An employer’s responsibilities under CalSavers are limited to registering for CalSavers, providing employee information to the CalSavers administrator, and remitting employee contributions through payroll deductions. An employer’s failure to allow eligible employees to participate in CalSavers can subject it to a fine of up to $500 per eligible employee.

When providing information about CalSavers to employees, employers are required to remain neutral about their employees’ participation in the program.  The CalSavers regulations expressly preclude employers from requiring, endorsing, encouraging, prohibiting, restricting, or discouraging employee participation in CalSavers, or from providing any advice or direction regarding any employee decision about CalSavers (e.g., investment choices, contribution rate, etc.).

More information can be found at https://www.calsavers.com


COVID-19 Webinar: Where are we now?

  • Date: September 22, 2021
  • Time: 12:00 PM – 1:30 PM
  • Cost: $25

COVID-19 — and our response to it — created a myriad of legal considerations, forcing employers to apply old laws to new situations and to follow new laws with little guidance.  With the rise of the Delta variant, employers again find themselves navigating the evolving impact of COVID-19 in their workplaces.  This webinar will provide up-to-date information regarding COVID-19 considerations for businesses, including an overview of the updated Cal/OSHA regulations, vaccination-related issues, and COVID-19-related benefits for employees.  

Registration Required.

Register For This Webinar

Back to School Orientation

Question: My kids are going back to school in-person for the first time in over a year.  Their school is requiring parents to attend a half-day back-to-school orientation (via Zoom) before the first day.  I've used most of my available leaves and PTO.  Does my employer have to give me time off to attend?

Answer: California Labor Code Section 230.8 entitles parents who work for covered employers to take up to 40 hours per year of job-protected time off to find, enroll, or reenroll their children in school (kindergarten or grades 1-12) or with a licensed child-care provider, or to participate in activities of their children’s school or licensed child-care provider. The law applies to employers with 25 or more employees in the same location.   Under this law, “parent” means a parent, guardian, stepparent, foster parent, or grandparent of, or a person who stands in place of a parent to, a child.

To take this time off, parents must provide their employer with reasonable notice before any planned absence. Additionally, any time off for attending school or child-care enrollment or child related activities coordinated by the school or licensed child-care provider must not exceed eight (8) hours in any calendar month of the year.  The law does not specifically define the types of activities covered by this section, but the law generally applies to any school sponsored, supervised, or approved activity such as field trips or parent-teacher conferences.  While it is unlikely that the drafters of the law (enacted in 1995) contemplated parents participating in school activities remotely due to a pandemic, as long as your employer has 25 or more employees in the same location, taking time off from work for the Zoom back-to-school orientation is likely to qualify as protected time off under California law.

Parents may also use the annual 40 hours of job-protected leave for unplanned absences resulting from a licensed child-care provider or school “emergency,” which is when a child cannot remain with a child-care provider or in school due to one of the following:

  • Behavioral or discipline problems;
  • The school or child-care provider is closed or unexpectedly unavailable, excluding planned holidays;
  • A natural disaster; or
  • The school or child-care provider has requested the child be picked up, or has a policy, excluding planned holidays, that prohibits the child from attending or requires the child to be picked up.

In these types of emergency situations, parent employees are required to give notice of the need for leave to their employer as soon as possible.

The employer can ask the employee to provide documentation from the school or licensed child-care provider as proof that the employee engaged in child-related activities on a specific date and at a particular time.

Employees who take this leave must use accrued vacation, personal leave, or compensatory time off, if available; otherwise, the leave time is unpaid. Additionally, where both of a child’s parents work for the same employer and want to take leave to attend the same school or licensed child-care provider event, only the parent who requests the time off first may be granted time off, unless the employer approves time off for both parents.

Because this leave is protected, an employer may not discharge, demote, suspend, or in any other manner discriminate against an employee for taking this time off as long as the employee has given appropriate notice and documentation when requested.


Managing a COVID-19 Outbreak in the Workplace

Question: What do I, as an employer, need to do in the event of a COVID-19 outbreak in the workplace?

Answer: The June 17, 2021 COVID-19 Prevention Emergency Temporary Standards issued by Cal/OSHA specify employers’ responsibilities in response to an outbreak of COVID-19 in the workplace.

A workplace outbreak occurs if three or more COVID-19 positive cases within an exposed group visited the workplace during their high-risk exposure period at any time during a 14-day period.  An “exposed group” generally includes all employees who were at the same work location, working area, or common area at work as the COVID-19 positive case during that individual’s “high-risk exposure period.”  The “high-risk exposure period” for a COVID-19 positive individual with symptoms is two days before developing symptoms until 10 days have passed since symptoms first appeared, and 24 hours have passed with no fever, and symptoms have improved.  For non-symptomatic COVID-19 positive cases, the “high-risk exposure period” is two days before until 10 days after the date the individual took the COVID-19 test that returned positive.

When an employee who was physically present at the workplace tests positive for COVID-19, employers must, within 24 hours, provide all employees with information regarding the employer’s disinfection plan and exposed employees with information regarding available testing and other benefits such as paid sick leave.  Employers should also report the COVID-19 case to its workers’ compensation claims administrator.  If an outbreak occurs, an employer must notify the local health department within 48 hours.  The employer should be prepared to provide the names, job titles, and worksite of the employees who tested positive for COVID-19.  With few exceptions, employers must also make COVID-19 testing available to employees within the exposed group during paid work time at no cost to the employees. Such testing must be made immediately available to all employees in the exposed group , and again one week later. Thereafter, employers must continue to make COVID-19 testing available, at least once a week, until there are no new COVID-19 cases detected in the exposed group for a 14-day period, or as otherwise required by Cal-OSHA or the local health department.

Unless an exception applies, employers must require employees in the exposed group to wear face coverings whenever they are indoors or when they are outdoors and less than six feet from others.  Employers must notify employees in the exposed group of their right to request a respirator for voluntary use if they are not fully vaccinated. Employers must also decide whether to implement physical distancing of at least six feet, or use cleanable solid partitions if physical distancing is not possible, to reduce COVID-19 transmission.

Employers who experience workplace outbreaks must immediately investigate, review, and correct potential hazards in the workplace.  Employers must review their COVID-19 prevention policies and procedures and implement any needed changes to prevent the further spread of COVID-19.  This review must be updated every 30 days during an outbreak, in response to new information, new or previously unrecognized COVID-19 hazards, or when otherwise necessary.  Employers must implement changes that reduce the transmission of COVID-19.

More stringent requirements are imposed in a major COVID-19 outbreak, which generally involves 20 or more employee COVID-19 cases in the workplace during a 30-day period.  To view the Cal/OSHA updated standards regarding COVID-19 outbreaks and major outbreaks, visit https://www.dir.ca.gov/dosh/coronavirus/Revisions-FAQ.html.


Cal/OSHA Revised COVID-19 Prevention Emergency Temporary Standards

Question: Has Cal/OSHA adopted new workplace guidelines now that California has opened?

Answer: Yes, on June 17, 2021, Cal/OSHA’s Standards Board approved revisions to the COVID-19 Emergency Temporary Standards (ETS).  Though California has eased restrictions on COVID-19 safety measures and restrictions, employers still must follow the workplace safety requirements mandated by Cal/OSHA.

The revised ETS include some important changes to workplace rules and employers’ obligations, including:

  • Fully vaccinated employees do not need to wear face coverings indoors or outdoors, except during outbreaks, or where the California Department of Public Health (CDPH) requires mask wearing, such as in public transit, K-12 educational facilities, and health care settings.
  • Fully vaccinated employees do not need to be tested or excluded from work after close contact with someone who has COVID-19 unless they have COVID-19 symptoms.
  • Masks are not required to be worn outside, including by those persons not vaccinated.
  • Physical distancing has been eliminated except where the employer determines there is a hazard or during a COVID-19 outbreak.
  • Employees who are not vaccinated must wear face coverings when indoors and when participating in indoor COVID-19 screening.
  • Employees who are not vaccinated may request respirators, such as N95 masks, for voluntary use at no cost to them.
  • Employers may not retaliate against employees who choose to wear face coverings.
  • Employers must maintain a record of employees’ vaccination status and keep that record confidential.  Cal/OSHA states that acceptable options for documentation include:
  • Employees can provide proof of vaccination (a vaccine card, its image, or a healthcare document showing vaccination status), and employers retain a copy.
  • Employees can self-attest to vaccination status, and employers maintain a record of who self-attests.

If employees decline to state whether they are vaccinated, employers must treat them as if they are unvaccinated.

Because of a recent increase in COVID-19 cases, some counties are requiring or recommending people wear face coverings when indoors, regardless of vaccination status.  Employers are generally permitted to adopt more stringent workplace safety rules to protect employees and patrons.  It is a good idea to check your local health department’s website to see if it requires face coverings or more protective measures than Cal/OSHA’s ETS.

Though the revised ETS include many changes, some key requirements remain.  Employers must:

  • Have an effective written COVID-19 Prevention Program.
  • Provide effective training and instruction to employees on the employer’s prevention plan and employee rights under the Emergency Temporary Standards.
  • Continue to provide face coverings to unvaccinated employees and make them available to vaccinated employees upon request.
  • Provide notice to public health departments of outbreaks.
  • Provide notice to employees of exposure to and close contacts with a COVID-19 case.
  • Offer COVID-19 testing to employees at no cost after potential exposures.
  • Comply with Cal/OSHA requirements for responding to COVID-19 cases and outbreaks.
  • Comply with quarantine and exclusion pay requirements.
  • Follow prevention requirements for employer-provided housing and transportation.

To ensure compliance with the current revised temporary standards, Cal/OSHA has developed a revised COVID-19 Model Prevention Program to help employers developing or revising their written COVID-19 Prevention Programs.  Employers can access the revised model program by visiting  https://www.dir.ca.gov/dosh/coronavirus/ETS.html.


Frequently Asked Questions Regarding the COVID-19 Rental Housing Recovery Act Protections for Renters

On June 28, 2021 Governor Newsom signed legislation to extend California’s eviction moratorium through September 20, 2021. Assembly Bill 832 extends existing law prohibiting residential tenants from being evicted for failure to pay rent due to a COVID-19-related hardship between March 1, 2020 and Sept. 30, 2021. Residential tenants are still required to provide a Declaration of COVID-19-Related Financial Distress and pay at least 25 percent of past due rent by Sept. 30 to avoid eviction.

How long are the COVID protections for renters in effect under the new bill?

Eviction protections have been extended through September 30, 2021.  Tenants who have not paid rent for any month between March 1, 2020 and September 30, 2021 who provide a signed declaration of COVID-related financial hardship to their landlord, cannot be evicted before September 30, 2021.

Do the protections for renters apply to commercial tenancies as well?

No.  The protections for renters have been extended for residential tenancies but not for commercial tenancies.

What forms are required to avoid eviction?

A Declaration of COVID-19-Related Financial Distress should be used by tenants who are unable to pay rent due to financial distress arising from and/or related to COVID-19. Landlords may provide the form to tenants,  and tenants must sign and return it to the landlord within 15 business days in order to avoid eviction for non-payment of rent due to COVID-19-related financial distress. The form is available at https://housing.ca.gov/tenant/forms.html.

Can Landlords ask for proof of COVID hardship for inability to pay rent?

No, unless the tenant is a high-income earner, and the landlord already has proof of this.  If the landlord has proof on file that the household makes at least 130% of the median income for the county where the rental property is located, then the landlord may demand documentation supporting the claim of COVID-related financial distress.  In any other circumstance, landlords may not demand additional documentation and must accept the signed declaration from the tenant as proof of hardship.

When can evictions for nonpayment of rent begin?

Landlords can begin evicting tenants for nonpayment of rent (even if they have submitted a declaration of COVID-related financial hardship) starting October 1, 2021.

Can a landlord evict a tenant for other reasons besides non-payment of rent?

Yes, a landlord can evict a tenant for at-fault just cause (such as breach of a material term of the lease, nuisance, committing waste, or criminal activity) as long as the cause is not simply a pretext for retaliating against the tenant for non-payment of rent.  No-fault terminations remain rather difficult during this period.

Are there any new notices that landlords should be aware of?

There is a new mandatory notice that landlords must deliver to all tenants who have missed any rental payment since March 1, 2020.  The notice explains the new changes in protections for renters and must be delivered on or before July 30, 2021.  There is also a new 15-day notice to pay or quit that needs to be included with every demand for payment of rent served after July 1, 2021.

Is there rental assistance for tenants who cannot afford to make their rental payments?

Yes.  Tenants who earn 80% or less of the area median income are eligible for rental assistance at housingiskey.com.  Either landlords or tenants can begin the application process.  The rental assistance program will reimburse landlords for 100% of unpaid back rent, and may help tenants with future rent payments as well.

Are there protections for tenants who don’t qualify for rental assistance?

Tenants who do not qualify for rental assistance (because they earn more than the 80% area median income threshold) must pay 25% of the total outstanding rent that came due during the “Transition Time Period” (September 1, 2020 – September 30, 2021) by September 30, 2021.  If they pay this 25%, then the landlord may not evict them for the other 75%.  The landlord can, however, bring an action to collect unpaid rent beginning November 1, 2021.

How do landlords recover unpaid back rent?

Landlords may begin filing claims for unpaid back rent starting November 1, 2021, by either filing in small claims court, or bringing a civil suit.  However, the court has limited the amount that a landlord can recover in attorney’s fees in a civil suit to $500 if the matter is uncontested and $1000 if the matter is contested.  Before filing a claim for unpaid rents, landlords must first apply for rental assistance through the governmental program at housingiskey.com.  In order for a court to issue a summons and complaint, the landlord must first file a statement verifying that the landlord completed an application for rental assistance to cover the rental debt demanded but the application was denied, as well as a copy of the final decision from the rental assistance program denying the rental assistance.

Do landlords still need to serve 15-day notices to pay or quit?

Yes, landlords must continue to deliver 15-day notices to pay or quit.  Beginning October 1, 2021, the 15-day notice will no longer be in effect, and landlords can go back to the normal 3-day notices.

To view the text of AB 832, visit  https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB832

For more information on rental assistance, visit https://housing.ca.gov/covid_rr/


Changes to Cal/OSHA’s COVID-19 Emergency Temporary Standards and COVID-19 Model Prevention Program

In November 2020, Cal/OSHA issued COVID-19 Emergency Temporary Standards requiring employers to adopt and implement a written COVID-19 Prevention Program (CPP).   Although COVID-19 restrictions in California have eased, employers are still required to have a CPP, and recent changes require revisions to your CPP.

On June 17, 2021, Cal/OSHA’s Standards Board approved several revisions to Cal/OSHA’s COVID-19 Emergency Temporary Standards.  The revised temporary standards include some important changes to workplace rules, including:

  • Fully vaccinated employees do not need to wear face coverings indoors or outdoors, except during outbreaks, or where the California Department of Public Health (CDPH) requires mask wearing, such as in public transit, K-12 educational facilities, and health care settings.
  • Fully vaccinated employees do not need to be tested or excluded from work after close contact with someone who has COVID-19 unless they have COVID-19 symptoms.
  • Masks are not required to be worn outside, including by those persons not vaccinated.
  • Physical distancing has been eliminated except where the employer determines there is a hazard or during a COVID-19 outbreak.
  • Employees who are not vaccinated must wear face coverings when indoors and when participating in indoor COVID-19 screening.
  • Employees who are not vaccinated may request respirators, such as N95 masks, for voluntary use at no cost to them.
  • Employers must maintain a record of employees’ vaccination status and keep that record confidential.
  • Employers may not retaliate against employees who choose to wear face coverings.

Though the revised temporary standards include many changes, some key requirements remain.  Employers must:

  • Have an effective written COVID-19 Prevention Program.
  • Provide effective training and instruction to employees on the employer’s prevention plan and employee rights under the Emergency Temporary Standards.
  • Provide notice to public health departments of outbreaks.
  • Provide notice to employees of exposure to and close contacts with a COVID-19 case.
  • Offer COVID-19 testing to employees at no cost after potential exposures.
  • Comply with Cal/OSHA requirements for responding to COVID-19 cases and outbreaks.
  • Comply with quarantine and exclusion pay requirements.
  • Follow prevention requirements for employer-provided housing and transportation.

To ensure compliance with the current revised temporary standards, Cal/OSHA has developed a revised COVID-19 Model Prevention Program to help employers developing or revising their written COVID-19 Prevention Programs.  Employers can access the revised model program by visiting https://www.dir.ca.gov/dosh/coronavirus/ETS.html. The employment law attorneys at Fenton & Keller are available to help employers draft or revise their COVID-19 Prevention Program.


Heat Illness Prevention

Question: I recently purchased a new business, and some of my employees work outside for extended periods of time.  Are there any special steps I need to take to protect them when the weather is hot?

Answer:  Yes, California employers are required to prepare to protect outdoor workers from heat illness. California’s heat illness prevention standard applies to all outdoor places of employment, and additional high heat procedures are imposed on employers in the agriculture, construction, landscaping, oil and gas extraction, and transportation of heavy materials industries.  Heat illness may occur when an employee’s body temperature control system cannot maintain an acceptable temperature. While the body usually cools itself by sweating, high temperatures and humidity prevent the body from efficiently releasing heat so body temperature can rise quickly, causing numerous medical symptoms.

The heat illness prevention standard requires employers to closely observe outdoor workers during a “heat wave,” defined as any day in which the predicted high temperature for the day will be at least 80 degrees and at least ten degrees higher than the average high daily temperature in the preceding five days. Employees who are newly assigned to a high heat area must be closely observed by a supervisor for the first 14 days of employment.

Employers with outdoor workers must take the following steps to prevent heat illness:

  • Develop and implement a Heat Illness Prevention Plan.  The Plan must be in writing in both English and the language understood by the majority of the employees.  The Plan must contain:
    • Procedures for providing water and access to shade.
    • A description of high heat procedures to be implemented when the temperature equals or exceeds 95 degrees.
    • Emergency response procedures that ensure effective communication to contact a supervisor or medical services, and for responding to signs or symptoms of heat illness.
  • Provide training to employees and supervisors before employees begin work that is reasonably anticipated to result in exposure to the risk of heat illness.
  • Provide drinking water that is fresh, pure, suitably cool, free of charge, and close to work areas so that each worker can drink at least 1 quart per hour.  Employers should encourage frequent drinking of water.
  • Encourage workers to protect themselves from overheating by taking cool-down rest periods in the shade for at least five minutes when they feel the need to do so. When temperatures reach 95 degrees or above, employers in agriculture, construction, landscaping, oil and gas extraction, and non-air-conditioned transportation must ensure that employees take a minimum ten-minute net preventative cool-down rest period every two hours.
  • Provide proper shade when temperatures exceed 80 degrees by maintaining one or more areas with shade that are either open to the air or provided with ventilation or cooling. The amount of shade must be sufficient to accommodate the number of employees on recovery or rest periods, so that they can sit in a normal posture fully in the shade without having to be in physical contact with each other. Workers have the right to request and be provided shade to cool off at any time.

Cal/OSHA’s Heat Illness Prevention website contains details on the heat illness prevention requirements and training and can be accessed at https://www.dir.ca.gov/DOSH/HeatIllnessInfo.html.  Cal/OSHA also has a Health Illness Prevention e-tool with sample procedures for heat illness prevention at https://www.dir.ca.gov/DOSH/etools/08-006/.


Questioning Job Applicants about COVID-19 Vaccination

Question: Can I ask job applicants if they have received the COVID-19 vaccine?

Answer: The short answer is yes, within limits. The Equal Employment Opportunity Commission’s (EEOC) guidance on vaccinations states that employers may lawfully mandate vaccinations, ask employees if they have been vaccinated, and ask employees to provide proof of vaccination.

Employers are required under federal, state, and local laws to provide a safe and healthy workplace for employees and patrons.  Before deciding whether to ask applicants about their vaccination status, employers should first consider why an applicant’s vaccination status is relevant to the position or workplace. An employer’s focus should be on the health and safety of the workplace. Asking applicants about their vaccination status is appropriate if the employer has a mandatory vaccination policy that is job-related and consistent with business necessity.

While most California employers are currently not mandating vaccines for employees, such a mandate is generally lawful.  This is because of the employers right to implement lawful workplace policies that protect the health and safety of employees and patrons. Accordingly, employers may require employees to get the COVID-19 vaccine so long as the employer does not infringe upon the protections afforded to employees under federal, state, and local law.

If an employer adopts a mandatory vaccination policy, it may also ask job applicants about their vaccination status.  The EEOC has clarified that asking employees if they have received the COVID-19 vaccine is not a disability-related inquiry under the American with Disabilities Act (ADA).  Therefore, employers with mandatory vaccination policies may ask applicants whether they have been vaccinated, but should refrain from asking any follow-up questions that are not job-related and that may reveal a disability.

Employers who require employees to be vaccinated should be clear about this requirement when recruiting and should inform applicants of the vaccine requirement as soon as possible. When posting the position, the employer should consider including in the job post that vaccination is a requirement of the job and that accommodations due to disability or religious reasons will be evaluated in compliance with the law.  Employers should not require applicants to bring proof of vaccination to the job interview. The interview should be focused on the applicant’s qualifications for the position.  Employers should wait until after an applicant is offered a job to request proof of a COVID-19 vaccination from the applicant.

Employers who extend an offer to an applicant conditioned on the applicant getting vaccinated may need to provide an accommodation if the applicant is unable to get vaccinated because of a disability or bona fide religious reason.  Under the EEOC’s guidelines, an employer cannot require an employee to get vaccinated if the employee has a disability protected by the ADA that prevents the employee from getting vaccinated, or if the employee has a sincerely held religious belief, practice, or observance protected by Title VII of the Civil Rights Act of 1964 that prohibits vaccinations.  California’s Fair Employment and Housing Act (FEHA) also protects individuals from discrimination, harassment and retaliation based on religion and disability.  The employer will need to conduct an individualized assessment to determine if the vaccination refusal is protected under the ADA, Title VII, or FEHA, and whether a reasonable accommodation can be made for the candidate.