News & Events

New Guidelines for Reopening Businesses

by Fenton & Keller

April 16, 2021

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

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

On January 25, 2021, California ended its Limited Stay at Home Order and implemented the Blueprint for a Safer Economy.  Businesses preparing to reopen should visit California’s Blueprint for a Safer Economy website (https://covid19.ca.gov/safer-economy/), which includes industry-specific guidance on developing a workplace COVID-19 prevention plan, employee training, and protocols regarding testing, cleaning, and maintaining physical distancing in the workplace.  However, employers should note that California may end the Blueprint in the upcoming months.

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

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

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

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

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

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

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

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

by Fenton & Keller

April 2, 2021

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

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

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

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

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

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

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

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

Notice Requirement. Employers must provide employees with notice of this new law, at the worksite and electronically for remote workers.  The Labor Commissioner’s office model notice can be accessed here: https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf.

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

The Labor Commissioner’s 2021 COVID-19 Supplemental Paid Sick Leave FAQs can be accessed here: https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html.

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Pandemic Fatigue

by Fenton & Keller

March 19, 2021

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

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

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

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

www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Travel-Advisory.aspx for details.  The CDC recommends that individuals get tested and self-quarantine after all domestic and international travel. See www.cdc.gov/coronavirus/2019-ncov/travelers/after-travel-precautions.html.

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

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

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New California Pay Data Reporting Requirement

by Fenton & Keller

March 5, 2021

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

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

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

Covered employers must submit the annual report electronically through the DFEH pay data submission portal, available on the DFEH web page.  In the annual report, covered employers must report the number of employees by race, ethnicity, and sex in each of 10 different job categories: Executive or senior level officials and managers; First or mid-level officials and managers; Professionals; Technicians; Sales workers; Administrative support workers; Craft workers; Operatives; Laborers and helpers; and Service workers.  Covered employers must also report pay and hours-worked data by establishment, job category, sex, race, and ethnicity.  Any data submitted that is associated with a specific person or business will be kept confidential and will not be subject to a California Public Records Act request.

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

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

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

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