Sara Boyns

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