On May 6, 2020, Governor Newsom signed an Executive Order establishing a rebuttable presumption that certain California workers who contract COVID-19 are presumed to have a workplace injury covered by the workers’ compensation system.  The Order states that for any employee who tests positive for or is diagnosed with COVID-19 within 14 days after a day that the employee worked at the employer’s work site at the direction of the employer, such illness shall be presumed to arise out of and in the course of the employment for purposes of awarding workers compensation benefits.  This presumption does not apply to employees who work from home and did not visit a worksite at the employer’s direction within 14 days of receiving a diagnosis.

Full text of the Executive Order may be accessed here: https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf.

COVID-19 Supplemental Sick Leave and New Notice for Food Sector Workers

Executive Order N-51-20 (https://www.gov.ca.gov/wp-content/uploads/2020/04/4.16.20-EO-N-51-20.pdf) requires hiring entities with 500 or more employees to provide supplemental paid sick leave to food sector workers for specified reasons related to COVID-19. Hiring entities with 500 or more workers nationwide must provide paid sick leave to food sector workers who are unable to work for defined reasons related to COVID-19.  In issuing the Executive Order the Governor noted that food sector workers are part of the essential critical infrastructure of food supply, but many were not eligible for paid sick leave under the Families First Coronavirus Response Act (FFCRA) because they work for large employers who are exempt from the FFCRA.  To qualify for COVID-19 Supplemental Paid Sick Leave, a food sector worker must work for or through a hiring entity with more than 500 employees nationwide and:

  1. be exempt from the Governor’s March 19, 2020 Stay-at-Home Order (EO N-33-20);
  2. perform work for the business outside the home; and
  3. satisfy one of the following:
    • Work in one of the industries or occupations defined in Industrial Welfare Commission Wage Orders: 3 (the canning, freezing, and preserving industry), 8 (industries processing agricultural products after harvest), 13 (facilities on a farm that prepare products for market), or 14 (general agricultural occupations);
    • Work for a business that runs a food facility, which includes grocery stores, restaurants, food warehouses, distribution centers, and grocery and restaurant personnel; or
    • Deliver food from a food facility for or through a hiring entity.

The California Labor Commissioner released a required posting to inform food sector workers of their right to supplemental paid sick leave.  Covered employers must display the notice where workers can easily read it. If workers don’t frequent the workplace, covered employers are required to electronically distribute the notice.  For more information see the FAQs at https://www.dir.ca.gov/dlse/FAQ-for-PSL.html. The new notice can be accessed here: https://www.dir.ca.gov/dlse/COVID-19-Food-Sector-Workers-poster.pdf

Employers Are Not Required to File an EEO-1 This Year

Generally, businesses with 100 or more employees (or with fewer than 100 employees if the business is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees), are required by law to file an EEO-1 report with the U.S. Equal Employment Opportunity Commission (“EEOC”) each year. The EEO-1 Report is a compliance survey that requires company employment data to be categorized by race/ethnicity, gender, and job category and reported to the EEOC.  The EEOC announced a delay in the 2019 EEO-1 Component 1 data collection due to the COVID-19 public health emergency.

The EEOC expects to begin collecting the 2019 EEO-1 Component 1 along with the 2020 EEO-1 Component 1 in March 2021 and will notify filers of the precise date the surveys will open as soon as it is available.  For more information, visit https://www.eeoc.gov/employers/eeo-1-survey

Maintaining Exempt Worker Status

Due to reductions in workforce, managers and other exempt employees may now be spending more than 50% of their time doing non-exempt work, resulting in the loss of their exempt status.  As a reminder, employees must meet both a salary test and a duties test to be properly classified as exempt.  As a result of the current pandemic, exempt employees may now be doing the work of non-exempt employees who were laid off.  Exempt employees must spend more than 50% of their time performing exempt, non-production work in order to satisfy the duties test.

Employers should assess whether employees who are classified as exempt are currently spending 51% or more of their time doing exempt work, or if their duties have changed and they no longer meet the duties test. A description of the Executive, Administrative, Professional and other exemptions can be found in the Industrial Welfare Commission Wage Order that applies to your business, https://www.dir.ca.gov/iwc/WageOrderIndustries.htm

Employees Refusing to Return to Work

If an employee refuses to return to work, employers should first determine the reasons for the refusal.  Depending on the reason, the employee’s refusal may trigger the employer’s duty to engage in the interactive process to determine if the refusal is related to a disability and can be reasonably accommodated. The employee may also be eligible for expanded FMLA or paid sick leave under the Families First Coronavirus Response Act (FFCRA) depending on the reason for the refusal.

An employee’s refusal to return to work due to the fact that he or she feels unsafe at the workplace due to COVID-19 may be permitted in some circumstances, although generally if the employer is permitted to reopen and has taken the safety steps required by state and federal law, a generalized fear of contracting COVID-19 is unlikely to justify a refusal to return to work.

However, both the National Labor Relations Act (“NLRA”) and the Occupational Safety and Health Act (“OSHA”) provide employees the right to refuse to work in conditions they believe to be unsafe, if they have a “reasonable, good-faith belief” that working under certain conditions is unsafe or unhealthy (NLRA) or if they believe they are in “imminent danger” (OSHA).  These standards are strictly defined by statute, and employers should consult legal counsel if any employee asserts these claims. Under the OSHA rules, an employee may refuse an assignment in an “imminent danger” situation, which involves “a risk of death or serious physical harm” if all of the following conditions apply: (1) the employee has “asked the employer to eliminate the danger and the employer failed to do so”; (2) the employee “refused to work in ‘good faith’” (which is defined as a genuine belief that “an imminent danger exists”); (3) “[a] reasonable person would agree that there is real danger of death or serious injury”; and (4) “[t]here isn’t enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.”

Additionally, the California Employment Development Department (“EDD”) recently issued new guidelines that clarify that individuals are disqualified from unemployment insurance benefits if they refuse to accept “suitable” employment when offered. Under California law, the EDD will consider whether the particular work is “suitable” in light of factors such as the degree of risk involved to the individual’s health and safety.  If an employer is in an industry permitted to reopen and has complied with required state and federal safety regulations, the employee may not have good cause to refuse to return to work and may be disqualified from receiving benefits. Employees who are receiving unemployment benefits are required to sign certifications for continued benefits and they will be asked if they have refused any work. Employees who have refused work are required to answer “yes” to that question, which will trigger an eligibility interview by the EDD. During that interview, the employee must inform the EDD of the facts surrounding the offer of employment that the employee refused, and why the offer was refused.  For more information, see https://edd.ca.gov/about_edd/coronavirus-2019/faqs.htm

The Department of Fair Employment & Housing Offers Free Sexual Harassment Prevention Training for Non-supervisorial Employees

On May 21, 2020 the California Department of Fair Employment and Housing (DFEH) announced a free sexual harassment prevention training for non-supervisory employees. The online training can be used to meet a legal requirement that, by January 1, 2021, employers having five or more employees must provide at least one hour of classroom or other effective interactive training and education regarding sexual harassment prevention to all non-supervisory employees in California. This legal requirement is contained in Government Code section 12950.1

The DFEH’s new training is interactive and optimized for mobile devices and is accessible for persons with disabilities. The training is currently available in English and will be available in five additional languages in the coming months (Spanish, Simplified Chinese, Tagalog, Vietnamese, and Korean).

The DFEH is planning to launch a similar online training for supervisors in California, who are required under Government Code section 12950.1 to complete two hours of training by January 1, 2021.

The training is available through DFEH’s website at:  https://www.dfeh.ca.gov/shpt/

It’s Time to Update Your Illness & Injury Prevention Program to Address

COVID-19 Prevention Measures

Every California employer is required to establish and implement an Injury and Illness Prevention Program (IIPP) to protect employees from workplace hazards, including infectious diseases. Employers are required to determine if COVID-19 infection is a hazard in their workplace. If it is a workplace hazard, then employers must implement infection control measures, including applicable and relevant recommendations from the Centers for Disease Control and Prevention (CDC), Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), and Coronavirus Disease 2019 (COVID-19): How to Protect Yourself & Others. For most California workplaces, adopting changes to their IIPP is mandatory since COVID-19 is widespread in the community. For more information about what to include in your IIPP, see https://www.dir.ca.gov/dosh/coronavirus and select the guidance applicable to your industry.