Indoor Heat Illness Prevention Regulations on the Horizon

On March 21, 2024, the CalOSHA Standards Board (CalOSHA) unanimously voted to adopt heat illness prevention regulations for indoor places of employment. The implementation of the regulations is currently uncertain (California’s Department of Finance did not sign off on the proposed regulations because of concerns related to the cost of the regulations). Despite this uncertainty, employers should start preparing for the eventual adoption and implementation of indoor heat illness prevention regulations, although the specific requirements of the regulations may change.

History of Indoor Heat Illness Prevention Regulations

In response to employee heat related deaths, in 2005, CalOSHA adopted outdoor heat illness prevention standards applicable to specific industries. In 2016, the California Legislature directed CalOSHA to adopt indoor heat illness prevention regulations based on reports of heat related illnesses and deaths, particularly in the warehouse industry.

As with prior regulatory efforts, the current regulations likely stemmed from recent events.  For example, in July 2023, employees working in an Amazon warehouse in San Bernadino filed a complaint with CalOSHA alleging that the temperature in the warehouse exceeded 100 degrees.  According to their complaint, even with air conditioners in the warehouse and fans near the trucks, the workplace “felt like a sauna.” CalOSHA investigated and found no evidence of safety violations indoors under then existing safety regulations.

Requirements of Proposed Indoor Heat Illness Prevention Regulations

The current proposed indoor heat illness prevention regulations apply to all indoor work areas where the temperature equals or exceeds 82 degrees when employees are present. The regulations do not apply to places of employment where employees are voluntarily teleworking.

Some of the obligations imposed by the proposed regulations include:

  • Providing fresh, pure, and “suitably cool” drinking water to employees free of charge. The water must be located as close as practicable to the areas where employees are working and in indoor cool-down areas.
  • Maintaining one or more indoor cool-down areas that are large enough to accommodate the number of employees taking recovery or rest periods. The cool-down area(s) must be located as close as practicable to the areas where employees are working. The temperature in indoor cool-down areas must be less than 82 degrees unless the employer demonstrates it is infeasible.
  • Allowing and encouraging employees to take preventative cool-down rest periods in a cool-down area when needed to protect themselves from overheating.
  • Monitoring employees who are taking a cool-down rest period to detect symptoms of heat illness and allowing such employees to continue to rest until signs or symptoms of heat illness have abated.
  • Observing employees during a heat wave or when an employee is newly assigned to a work location where the temperature is 87 or higher, or in a high radiant heat area where the temperature is 82 degrees or more.
  • Providing first aid or emergency response to employees experiencing heat illness.
  • Establishing an Indoor Heat Illness Prevention Plan that includes procedures for accessing water, close observation, cool-down areas, and emergency response measures.
  • Training supervisory and non-supervisory employees about heat related illness and employer procedures for recognizing and responding to heat illness, as well as the elements of the employer’s Indoor Heat Illness Prevention Plan.

Employers should be on the lookout for the finalized regulations and take steps now to prepare to adopt an Indoor Heat Illness Prevention Plan.

by Sara Boyns

Leave of Absence as a Reasonable Accommodation

Question: My employee has been on medical leave for 2 months. How long do I have to provide a leave of absence?

Answer: It depends. Several state and federal laws require employers to provide leave to employees who are unable to perform the essential functions of their job due to a disability. The federal Family Medical Leave Act (FMLA) and California’s Family Rights Act (CFRA) provide eligible employees in California with the right to take up to 12 weeks of unpaid job protected leave per year to care for themselves or their family members with a serious health condition, to bond with a new child, or for certain reasons related to military service. If an employee is still disabled and unable to return to work after using all 12 weeks of FMLA and/or CFRA leave, California and federal law require employers to grant additional unpaid leave in most circumstances.

Employees are eligible for FMLA and/or CFRA leave if they have worked for their employer at least 12 months and have worked at least 1,250 hours in the 12 months prior to their leave.  The federal FMLA applies to employees who work at a location where the company employs 50 or more employees within 75 miles. CFRA applies to employers with 5 or more employees. If an employee is eligible for FMLA leave, in most cases CFRA leave will run concurrently with FMLA leave, so the total FMLA/CFRA leave allotment is 12 weeks per year.

Employees returning to work after taking FMLA and/or CFRA leave are entitled to return to their same or a comparable position. If an employee is still disabled and unable to return to work after 12 weeks of CFRA and/or FMLA leave, the employee is likely eligible for additional unpaid leave.  The Fair Employment and Housing Act (FEHA) requires employers of 5 or more employees to provide reasonable accommodations for disabled individuals unless it would cause an undue hardship. The Americans with Disabilities Act (ADA) imposes this requirement on employers with 15 or more employees. Providing additional leave after an employee exhausts FMLA and/or CFRA leave is a reasonable accommodation. Also, if an employee is not eligible for FMLA and/or CFRA, the employee is eligible for unpaid medical leave under the FEHA and the ADA.

Employers must engage in an interactive process when an employee requests reasonable accommodations, including a leave of absence. The California Civil Rights Department has issued a reasonable accommodation packet to assist employers with the interactive process. The packet is available here: https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2021/07/Request-For-Reasonable-Accommodation-Package_ENG.pdf

There is no defined amount of leave that an employee is entitled to under the FEHA or the ADA.  Employers must provide unpaid leave as a reasonable accommodation if additional leave is likely to enable the employee to return to work, and the leave does not cause undue hardship for the employer.

Employees sometimes provide a note from a health care provider stating the employee needs to be off work for a period of time. It is recommended that the employer ask the employee to provide a medical certification instead of a health care provider’s note because the certification provides additional information about the employee’s need for leave. The CFRA medical certification is available here: https://calcivilrights.ca.gov/wp-content/uploads/sites/32/2022/12/CFRA-Certification-Health-Care-Provider_ENG.pdf

Employers should exercise caution and consult counsel or human resource professionals when managing requests for medical leaves of absence.

by Sara Boyns

Time to Update Employee Handbooks

Question: Are there any new employment laws that require me to update my company’s employee handbook?

Answer: Yes; there are several new employment laws that will affect California businesses, and some will require updating your employee handbook.  Some of the new laws are:

Increase in mandatory paid sick leave.  Beginning January 1, 2024, Senate Bill 616 requires employers (with narrow exceptions) to provide 40 hours (5 days) of paid sick leave per year to all employees.  This is an increase from the current law, which requires 24 hours (3 days) of paid sick leave per year.

Employers may choose to provide the mandatory paid sick leave via an accrual method or a lump sum method.  The accrual method requires employers to provide at least 1 hour of paid sick leave to each employee for every 30 hours the employee works.  Under the accrual method, an employer can limit employees’ use of paid sick leave to 40 hours per year and cap the maximum amount of sick leave that an employee can carry over into the next year at 80 hours.  Employers may use a different accrual method (other than the standard 1:30 accrual) as long as it provides employees with at least 24 hours (3 days) of paid sick leave by their 120th calendar day of employment, and no less than 40 hours (5 days) of paid sick leave by their 200th calendar day of employment.

The lump sum method requires employers to deposit 40 hours of paid sick leave into each employee’s sick leave bank each year of employment, calendar year, or 12-month period.  Employers using the lump sum method can limit employees’ use of paid sick leave to 40 hours per year and prohibit carryover of sick leave hours since each employee will receive a new allotment of 40 hours of sick leave on the first day of the subsequent year of employment, calendar year, or 12-month period.

Additional terms of the new mandatory paid sick leave law will require an updated handbook policy and communication with employees and your payroll company.

Reproductive loss leave. Beginning January 1, 2024, Senate Bill 848 allows employees who work for an employer with 5 or more persons to take up to 5 days of unpaid time off following a reproductive loss, defined as a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction. Up to 20 days of unpaid time off per year must be provided to eligible employees who suffer more than one reproductive loss. This leave does not run concurrently with California Family Rights Act leave or Pregnancy Disability Leave.

Workplace Violence Prevention Plan. Beginning July 1, 2024, Senate Bill 553 requires employers to establish, implement, and maintain a Workplace Violence Prevention Plan as part of their Illness and Injury Prevention Program.  Employee training, maintaining a violent incident log, and keeping records of workplace violence hazard identification, evaluation, and correction are also required.

Increase in minimum exempt employee salary and minimum wage.  California’s minimum wage increases to $16.00 per hour on January 1, 2024. The minimum salary paid to exempt employees increases to $66,560.  See https://laborcenter.berkeley.edu/inventory-of-us-city-and-county-minimum-wage-ordinances/#s-2 for a list of cities and counties with a higher minimum wage.

Contact your employment law counsel to update your policies and procedures to comply with the new laws.

by Sara Boyns

Court Clarifies Pregnancy Disability Discrimination Law

Question: I am a new manager, and I’m confused about how to handle work restrictions for employees who are pregnant. Can you give me some guidance?

Answer:  Under California and federal law, harassment or discrimination based on pregnancy is considered sex discrimination. California law also prohibits discrimination and harassment against an employee based on childbirth, breastfeeding, or related medical conditions.

In California, an employee who is disabled by pregnancy, childbirth, or a related medical condition may take up to four months pregnancy disability leave. In addition, upon the employee’s request, the employer must provide the employee with a reasonable accommodation. The employee’s request must be supported by documentation from the employee’s health care provider.

A reasonable accommodation may be required when an employee is affected or disabled by pregnancy and needs a change in the work environment or job duties to enable the employee to perform the essential job functions. The “reasonableness” of a requested accommodation is determined on a case-by-case basis and based on factors such as the employee’s medical needs, the duration of the requested accommodation, and the employer’s policies and practices. The employer and the employee must engage in a good faith interactive process to address the employee’s request for reasonable accommodation.

A recent case, Lopez v. La Casa de las Madres, clarifies the employee’s burden of proof when requesting work accommodations based on pregnancy. Ms. Lopez worked as a manager at a residential shelter for domestic violence victims. After she took over four months of pregnancy disability leave, Ms. Lopez returned to work with two restrictions: (1) time off to allow her to continue mental health treatment, and (2) flexible/shortened workdays if Ms. Lopez “finds nature of the work or stress of the work overwhelming and triggering of severe anxiety/depressive symptoms.” The employer determined it could provide Ms. Lopez time off for treatment but could not accommodate the second restriction of flexible/shortened workdays because Ms. Lopez’s job could not be modified to eliminate stressful situations. Instead, the employer offered Ms. Lopez a data entry job as a temporary accommodation. Ms. Lopez refused the data entry job, and her employment was terminated.

Ms. Lopez sued, alleging that her employer failed to provide a reasonable accommodation. The court found that Ms. Lopez did not prove that she had a pregnancy-related disability or that she could perform the essential functions of her job with a reasonable accommodation. The court stated that California law does not require employers to remove an essential job function as a reasonable accommodation. The court found that Ms. Lopez’s job as the shelter manager “was inherently stressful and required quick decisions that sometimes meant the difference between life and death.” Based on this finding, the court held that the employer did not have to provide Ms. Lopez with a “flexible or shortened workday” if Ms. Lopez found her work stressful because that would have required the employer to remove an essential function from Ms. Lopez’s job.

The takeaway for employers responding to disability accommodation requests is to engage the employee in an interactive process, obtain information in writing from the employee’s healthcare provider about the employee’s work restrictions, and consider reasonable accommodations, including the employee’s requested accommodation and other reasonable alternatives. Be sure to document the process and communicate the accommodation decision and reasoning

by Sara Boyns

Face the Music – Sexual Harassment Liability

Question: One of my employees likes to listen to edgy and suggestive music at her desk, saying this makes her more productive. Can I tell her to stop?

Answer: Yes, you can tell this employee to stop listening to such music at work. Employers can and should adopt workplace rules to ensure a safe and harassment free work environment. Although many people associate workplace sexual harassment with unlawful physical, visual, or verbal conduct, a recent case highlights that sexually derogatory music audible throughout the workplace may result in liability for sexual harassment.

Under federal law, an employee who asserts a claim for sexual harassment hostile work environment must show (1) the work environment was objectively and subjectively offensive, (2) the alleged harassment was based on gender, and (3) the alleged conduct was either severe or pervasive.    Offensive conduct is not automatically “discrimination or harassment because of sex” merely because it includes sexual content or connotations. Teasing, offhand comments, and some isolated incidents generally will not amount to discrimination or harassment unless the employee can show that it was based on sex, offensive, and severe or pervasive.

A recent federal case confirmed that music in the workplace can form the basis of a sexual harassment hostile work environment claim under Title VII of the Civil Rights Act of 1964.  In Sharp v. S&S Activewear, LLC, seven female employees and one male employee sued their employer alleging that S&S created an unlawful hostile work environment by permitting its managers and employees to routinely play “sexually graphic, violently misogynistic” music, including songs that denigrated women and described extreme violence against women. The music was “blasted from commercial-strength speakers placed throughout the warehouse” where the employees worked.  The employees alleged “the music served as a catalyst for abusive conduct by male employees, who frequently pantomimed sexually graphic gestures, yelled obscenities, made sexually explicit remarks, and openly shared pornographic videos.”  Although the music was particularly demeaning toward women, who comprised roughly half of the warehouse’s workforce, some male employees also took offense. Despite “almost daily” complaints, S&S management defended the music as motivational and continued playing it for nearly two years.

S&S filed a motion to dismiss the lawsuit.  The district court granted the motion, reasoning that the music’s offensiveness to both men and women and audibility throughout the warehouse cancelled any discriminatory potential. The district court held that because both men and women were offended by the work environment, the employees could not prevail on a hostile work environment claim.

The Ninth Circuit Court of Appeals reversed the decision, holding that music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute discrimination because of sex. The Ninth Circuit Court sent the case back to the district court with instructions to reconsider the case based on two key principles.  First, harassment, whether aural or visual, need not be directly targeted at a particular employee in order to pollute a workplace and give rise to a hostile work environment claim. Second, the fact that conduct is offensive to multiple genders does not bar a claim for hostile work environment harassment.

This case highlights the importance of monitoring workplace behavior to ensure employees are not subjected to harassment or discrimination, or a hostile work environment, because they are a member of a protected group.

by Sara Boyns

Health Insurance Continuation for Employees on Medical Leave

Question: I have an employee who has been off work with a workers compensation injury for 6 months. What is my obligation to continue to keep this employee on the company health insurance plan?

Answer: An employee who is on medical leave due to a work-related injury may or may not be entitled to health insurance continuation on the same terms as if the employee continued to work.

If your employee qualifies for leave under the federal Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA), you will designate the first 12 weeks of the employee’s leave based on the work-related injury as FMLA and/or CFRA.  Employees who are on FMLA or CFRA leave are entitled to health insurance benefits for 12 weeks on the same terms and conditions as if the employee continued to work. After FMLA and/or CFRA expires, the employer must engage in the interactive process with the employee to determine if additional leave is a reasonable accommodation.  Under California’s Fair Employment and Housing Act (FEHA), medical disability leave is a reasonable accommodation as long as additional leave is likely to enable the employee to return to work, and the leave does not cause undue hardship for the employer.  Also, if your injured employee is pregnant, the employee will likely be eligible for up to 4 months of pregnancy disability leave and an additional 3 months of CFRA leave for baby bonding.  In that case, the employee’s company provided health insurance benefits could continue for up to 7 months.

After expiration of the 12 weeks of FMLA/CFRA leave, or up to 7 months of combined pregnancy disability leave and CFRA baby bonding leave, the health insurance plan document will determine how long the employee’s company provided coverage will last.  You may contact your insurance broker or review the plan document to determine when an employee becomes ineligible for coverage.  Many policies state that after three or four months of medical leave, the employee becomes ineligible to participate in the plan as an active employee.  At that time, unless the employee is on protected pregnancy disability leave or CFRA baby bonding leave, the employee’s company health insurance coverage would cease, and the employee would be offered health insurance continuation at the employee’s expense through the Consolidated Omnibus Budget Reconciliation Act (COBRA). The employee’s reduction in hours is a qualifying event under COBRA, and your health insurance broker or plan administrator can help you discontinue coverage for the employee and timely offer continued coverage under COBRA.

Employers sometimes believe that employees who are on a workers compensation leave are entitled to health benefits indefinitely, but that is not the case. Employers also sometimes forget that medical disability leave due to a work-related injury or illness is managed in the same manner as other disability leaves, and will run at the same time as FMLA, CFRA, and leave provided as a reasonable accommodation under the FEHA.

For more information on family and medical leaves, and pregnancy disability leave, visit https://calcivilrights.ca.gov/family-medical-pregnancy-leave/

by Sara Boyns

New Year, New Laws 2023

New Pay Transparency Act
Senate Bill 1162
by Rachel Reddick

On September 27, 2022, Governor Newsom signed Senate Bill 1162, a broad pay transparency bill requiring employers to include pay ranges in all job advertisements beginning January 1, 2023. The bill also expands an employer’s duty to respond to requests for pay scales and mandates reporting requirements and record keeping.

What are Employers Required to Do Now?

First, in any internal or external job posting, employers with fifteen or more employees must include the pay scale for a position’s salary or hourly wage range (not including bonuses or equity-based compensation). “Pay scale” means the salary or hourly wage range that the employer reasonably expects to pay for the position.

Second, upon reasonable request, an employer must provide the pay scale for a position to an applicant applying for employment, and to a current employee for the position in which the employee is currently employed. The requirement to provide the position’s salary or hourly wage range upon request applies to all employers, including those with less than 15 employees.

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Bereavement Leave as a Protected Leave of Absence
Assembly Bill 1949
by Christopher Nannini

On September 29, 2022, Governor Newsom signed Assembly Bill No. 1949 (AB 1949), which makes it unlawful for an employer to refuse to grant an employee’s request for up to five days of bereavement leave upon the death of a family member. Under the law, family members include a spouse, child, parent, sibling, grandparent, grandchild, registered domestic partner, or parent-in-law.

AB 1949 takes effect on January 1, 2023. It creates a new form of protected leave under the California Family Rights Act (CFRA) and is separate and distinct from the twelve workweeks of unpaid protected CFRA leave during any 12-month period for family care and medical leave.

Under AB 1949, California employers must offer an employee five days off for the mourning of the loss of a loved one. Employers may provide paid or unpaid bereavement leave. If the bereavement leave is unpaid, employees may use vacation time, paid sick leave, or other accrued time off. The law does not provide a limit for how many times an employee may request and take bereavement leave.

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Workers’ Rights In Emergencies Law
Senate Bill 1044
by Susannah Ashton

Senate Bill 1044 (SB 1044) is effective January 1, 2023. This law, called “Workers’ Rights in Emergencies,” prohibits employers from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace or worksite because the employee has a reasonable belief that the workplace or worksite is unsafe.

Who Does the Workers’ Rights in Emergencies Law Apply to?
The law applies to all employers, including private and public entities, including special districts, except for depository institutions (e.g., such as an insured bank, a mutual savings bank, a savings bank, or a credit union) and correctional facilities.

This new law provides rights to all employees, with certain, specified, exemptions, such as essential workers, first responders, disaster service workers, employees or contractors of a health care facility who provides direct patient care, employees who are actively operating equipment, among others.

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The Future of Drug Testing for Cannabis
Assembly Bill 2188
by Bradley Levang

On September 19, 2022, Governor Gavin Newsom signed into law AB 2188. The law amends the Fair Employment and Housing Act (“FEHA”) to make it unlawful for an employer to discriminate against someone in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon:

1) the person’s use of cannabis off the job and away from the workplace; or
2) an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

How Does This New Law Change Drug Testing Practices?
Although AB 2188 was recently signed into law, it will not go into effect until January 1, 2024. The law does not prohibit testing employees for the presence of cannabis. Rather, the law places restrictions on discriminating against employees for their off-the-job cannabis use or based on test results from certain types of drug screening tests that indicate nonpsychoactive cannabis metabolites. The law still allows an employer to prohibit employees from possessing, using, or being impaired by cannabis on the job. Also, the law still allows an employer to maintain a drug- and alcohol-free workplace.

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Modifications to COVID-19 Exposure Notification Requirements and the Workers Compensation Presumption
Assembly Bill 2693 / Assembly Bill 175
by Marco Lucido

What are the Changes to Workplace COVID-19 Exposure Notification Rules?

On September 29, 2022, Governor Newsom signed into law California Assembly Bill (“AB”) 2693. Effective January 1, 2023, AB 2693 makes some key changes to the existing COVID-19 notification requirements under the California Labor Code section 6409.6. Currently, Labor Code section 6409.6 requires employers to provide employees with written notice of a potential COVID-19 workplace exposure within one business day after receiving notice of the potential exposure.

Beginning January 1, 2023, employers will have the option to comply with the workplace exposure requirement by posting a single notice of potential COVID-19 exposure at the worksite (or online employee portals) as an alternative to providing the written notice to exposed employees. Employers who prefer the written notice procedure may continue following that procedure.

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Expansion of Family Leave Laws to Include Non-Family Members
Assembly Bill 1041
by Ashley Cameron

Starting in January 2023, eligible employees may take job-protected leave to care for a “designated person.” On September 29, 2022, Governor Newsom signed into law Assembly Bill 1041, which expands the definition of a “family member” under the California Family Rights Act (CFRA) and California’s Healthy Workplace Healthy Family Act (HWHFA) to include a “designated person.”

What are the Expanded Rights to Family Leave?
CFRA allows eligible employees to take up to 12 weeks of paid or unpaid job-protected leave during a 12-month period for specified reasons. One reason is to care for a family member who has a serious health condition. Currently, the CFRA defines family member as a child, parent (including parent-in-law), spouse, registered domestic partner, grandchild, grandparent, and sibling.

AB 1041 expands the definition of family member to include a “designated person,” so eligible employees will now be able to take CFRA leave to care for a “designated person” who has a serious health condition. A designated person is defined as “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” Employees can identify the “designated person” at the time the employee submits a request for CFRA leave. An employer can limit an employee to one designated person per 12-month period.

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The Contraceptive Equity Act of 2022
Senate Bill 523
by Gladys Rodriguez-Morales

The California Fair Employment and Housing Act (FEHA) protects individuals from harassment, discrimination, and retaliation in employment on the basis of their membership in a protected class as listed by the FEHA. Those protected classes include race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and veteran status.

On September 27, 2022, Governor Gavin Newsom signed Senate Bill 523 known as the “Contraceptive Equity Act of 2022,” which becomes effective on January 1, 2023. The Act amends the FEHA by including “reproductive health decisionmaking” as a protected class, making it unlawful to harass or discriminate against individuals on the basis of their “reproductive health decisionmaking,” which includes, but is not limited to, an individual’s decision to use or access a particular drug, device, product, or medical service for reproductive health.

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Rachel W. Reddick

Prior to joining Fenton & Keller, Rachel served as a Judge Advocate General in the United States Navy as well as counsel for the Department of Defense. As a Judge Advocate, Rachel gained valuable trial experience as both a prosecutor and defense attorney at the trial level. CLICK FOR BIO.

Christopher L. Nannini

Christopher’s practice focuses on civil litigation, business litigation, employment law, and trust and estate litigation. Christopher began working for Fenton & Keller in 2022, assisting in civil litigation, employment law, and business law.While attending Monterey College of Law, Christopher was a Heisler Moot Court Finalist and upon graduation, Christopher received an award for Outstanding Academic Achievement. CLICK FOR BIO.

Tara L. Clemens

Tara’s practice focuses on business transactions, estates, and civil litigation. Prior to joining Fenton & Keller as an associate attorney, Tara worked for an international law firm assisting in the representation of public and private sector clients for a variety of litigation and corporate matters, including employment disputes, the 2010 Alaska Redistricting Board. CLICK FOR BIO.

Abel N. Barba

Abel was born in Salinas and grew up in Greenfield, California, where he continues to live with his family. After graduating from Greenfield High School, Abel attended Cal Poly, San Luis Obispo, where he received his degree in Philosophy. Abel then received his Juris Doctorate from the San Luis Obispo School of Law. CLICK FOR BIO.

by Sara Boyns

New Guidance Regarding Hearing Disabilities in the Workplace

Question: One of my employees recently told me he has a hearing problem that is affecting his ability to do his job.  What should I do?

Answer:  According to the National Institute on Deafness and Other Communication Disorders, approximately 15 percent of American adults report some trouble hearing. People with a variety of hearing conditions (including deafness, being hard of hearing, experiencing ringing in the ears, or having sensitivity to noise) may be “disabled” as that term is defined by the federal Americans with Disabilities Act (ADA) and California’s Fair Employment & Housing Act (FEHA). The ADA and FEHA prohibit discrimination against qualified applicants and employees.

The Equal Employment Opportunity Commission (EEOC) recently updated its guidance concerning hearing disabilities in the workplace, explaining:

  • when an employer may ask an applicant or employee questions about a hearing condition and how it should treat voluntary disclosures;
  • what types of reasonable accommodations applicants or employees with hearing disabilities may need;
  • how an employer should handle safety concerns about applicants and employees with hearing disabilities; and
  • how an employer can ensure that no employee is harassed because of a hearing disability or any other disability.

Some of the important points in the EEOC guidance include:

  1. An employer may not ask questions about an applicant’s medical condition or require an applicant to have a medical examination before it makes a conditional job offer. However, an employer can ask questions about the applicant’s ability to perform the essential functions of the position, with or without reasonable accommodation, such as whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment; whether the applicant has good communication skills; or whether the applicant can meet legally mandated safety standards required to perform a job.
  2. If an applicant discloses a hearing condition after receiving a conditional job offer, an employer may ask the applicant additional questions, such as what specific hearing limitations the individual experiences, and what, if any, reasonable accommodations the applicant may need to perform the job.
  3. An employer may ask an employee about a hearing condition when it has a reasonable belief that the employee will be unable to safely perform the essential functions of the job because of it. In addition, an employer may ask an employee about the employee’s hearing to the extent the information is necessary to support the employee’s request for a reasonable accommodation needed because of a hearing disability.

Employers are required to provide reasonable accommodations to enable applicants and employees with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship (that is, a significant difficulty or expense). It is important to talk to your employee about what accommodations, if any, are needed for the employee to perform their job.  Accommodations vary depending on the needs of the individual with a disability. Not all applicants or employees with a hearing condition will need an accommodation or require the same accommodations. The EEOC guidance discusses some of the reasonable accommodations a hearing-impaired employee may need, including a sign language interpreter, assistive technology (for example, a hearing aid compatible headset, video remote interpreting service, or assistive software), or work area adjustments.

More information about how to address hearing disabilities in the workplace is available at: https://www.eeoc.gov/laws/guidance/hearing-disabilities-workplace-and-americans-disabilities-act.   Employer reasonable accommodation resources are also available at https://calcivilrights.ca.gov/accommodation/

by Sara Boyns

Tips for a Safe Holiday Party

Question: For the first time since 2019, my company will be holding a holiday party for our employees and their families. I want to provide a safe, fun celebration but am concerned about legal liabilities. What should I watch out for?

Answer: Many employers are resuming holiday festivities this year.  You can have a festive and safe holiday party that fosters teamwork by following a few simple suggestions.

  • Consider Safety. Recognizing that COVID-19 will remain with us for the foreseeable future, the California Department of Public Health issued the Safe and Smart Events Playbook to provide best practices and recommendations for event operators to produce safe and smart live events. Employers should consider whether to hold an indoor or outdoor event, whether to require masks indoors, and whether to require proof of vaccination status. Employers should also encourage guests to skip the party if they are sick.
  • Voluntary v. Mandatory Attendance.  If attendance at the company party is mandatory, the time the employees spend at the party is normally considered hours worked.  This means that non-exempt employees will need to be paid for that time and will be owed overtime pay if the party results in extra hours worked.  If attendance at the party is voluntary, the time is not compensable.  In addition, an employee who is injured at the party can file a workers' compensation claim unless attendance at the event is strictly voluntary.
  • Decorations. To maximize employee inclusion in your holiday party, ask employees to provide you with ideas concerning holiday decorations.  This will allow inclusion of other traditions and holidays, and make employees feel like they are part of the party planning process.  However, make it clear that employees cannot put up whatever decorations they want, wherever they want. A sexy Santa is not appropriate in any workplace.
  • Gift Exchanges. If your company has a gift exchange, let your employees know that participation is voluntary, and your equal employment opportunity and harassment/discrimination policies apply to the exchange of gifts.  Sexual or vulgar gifts are not appropriate. Some businesses make donations to charity in lieu of a gift exchange.
  • What about alcohol?  Since this will be your first in person holiday party since 2019, some employees may be feeling more jolly than usual.  Alcohol consumption may result in decreased inhibitions and increased risk of offensive or harassing conduct. To avoid these consequences, employers may decide to avoid serving alcohol, or limit the number of drinks by providing one or two drink tickets to employees and guests. Serve plenty of nonalcoholic beverages and food and consider providing vouchers for cab rides home.  Pay attention to how much your employees are consuming and stop serving if it appears the alcohol consumption is more than moderate. Employers can be held liable if employees are involved in auto accidents after drinking too much at a company function.
  • Finally, although you are hosting a party, it is an office party.  If necessary, remind employees that your workplace policies apply to social events and respond quickly and firmly to inappropriate behavior.

While there are some legal risks involved in hosting a holiday party, the benefits usually outweigh the risks. If you decide to host a party, make sure your employee handbook, harassment policies, and COVID-19 protocols are up-to-date and that all employees adhere to your policies.  Holiday parties express gratitude and promote teamwork, so enjoy your celebrations, carefully and thoughtfully.

by Sara Boyns

Paid Family Leave Grant Program

Question: I am confused about California’s Paid Family Leave program. When do employees take this leave?  What benefits are available? As an employer, do I have to pay employees who are not working when they take paid family leave? Is there any help for small businesses when employees are out on leave?

Answer: California’s Paid Family Leave (PFL) provides benefit payments to employees who take approved time off work to care for a seriously ill family member, bond with a new child, or participate in a qualifying event because of a family member’s military deployment. PFL is a wage replacement benefit administered by the Employment Development Department. The PFL program applies to all California employers regardless of size. Eligible employees may receive benefit payments for up to eight weeks. PFL payments are approximately 60-70% of the employee’s weekly wages earned 5 to 18 months before the employee’s claim start date. The PFL program is funded entirely by employee contributions.

More information about PFL eligibility and benefits is available at:  https://edd.ca.gov/disability/paid-family-leave/

The PFL program imposes very few obligations on employers. Unlike the federal Family and Medical Leave Act (FMLA), the California Family Rights Act (CFRA) and California’s Pregnancy Disability Leave (PDL) regulations, the Paid Family Leave program does not provide job protection. Paid Family Leave does not require employers to grant a leave of absence because it is not a leave law.  However, employees who take FMLA, CFRA, or PDL leave may apply for PFL benefits. An employer may require an employee to take up to two weeks of earned but unused vacation leave before beginning to receive PFL benefits. An employer cannot require an employee to use sick leave before receiving benefits. Employers are required to provide the Paid Family Leave brochure only to new employees and persons who request leave to care for a seriously ill family member or bond with a new child. The notice is available here: https://edd.ca.gov/en/Disability/PFL_Forms_and_Publications

In June 2022 California implemented a Paid Family Leave Grant Program.  Recognizing that businesses impacted by California’s Paid Family Leave program will have increased costs including training and upskilling existing staff and hiring and training additional staff to cover the duties of employees on leave, the state of California allocated One Million Dollars from the State General Fund to provide grants to impacted businesses.

Eligible small businesses in California may now apply for grants up to $2,000 per employee utilizing PFL benefits. The grant period is June 1, 2022, to May 31, 2024, or until funds run out.

Grants are available in the following amounts:

  • Businesses with 51–100 employees may receive up to $1,000 per employee utilizing Paid Family Leave.
  • Businesses with one to 50 employees may receive up to $2,000 per employee utilizing Paid Family Leave.

To qualify, businesses must:

  • Employ between one and 100 employees;
  • Be registered to do business in the State of California;
  • Be in an active status with the office of the California Secretary of State; and
  • Have an active California Employer Account Number under which employees are listed for payroll.

For more information or to apply for a grant, visit  CaliforniaPFL.com, including their Frequently Asked Questions located at https://californiapfl.com/faqs . After reviewing the eligibility requirements, which can be found at https://californiapfl.com/eligibility, and collecting the information needed to apply, it takes businesses approximately 10 to 15 minutes to fill out the online application.

by Sara Boyns

For the 4th Year in a Row, Fenton & Keller Named County’s Top Law Firm in Monterey County Weekly Reader Polls

In its March 28, 2019 edition, the Monterey County Weekly announced that its readers have once again voted Fenton & Keller the Best Law Firm in Monterey County. This is the fourth consecutive year Fenton & Keller has received this honor.

All of us at Fenton & Keller would like to express our gratitude to the readers of Monterey County Weekly for honoring and expressing their confidence in our firm in this way. We would also like to thank our clients for trusting in us and allowing us to serve their changing legal needs for over 50 years!

 

by Sara Boyns