News & Events

Revised COVID-19 Workplace Rules

by Fenton & Keller

June 11, 2021

Question:  The economy re-opens in less than a week.  Will the COVID-19 workplace guidelines expire when that happens?

Answer:     No.  For the time being, the Cal/OSHA COVID-19 workplace guidelines that were originally adopted in November of 2020 will remain in effect when California’s economy re-opens on June 15, 2021.

On June 3^rd, the Occupational Safety and Health Standards Board (the Standards Board) adopted a revised version of Cal/OSHA’s COVID-19 prevention emergency temporary standards.  These revised standards, which were expected to become effective on June 15, 2021, included key changes to the workplace guidelines with respect to masks, physical distancing, and excluding workers from the workplace.  For example, beginning on Tuesday, June 15, 2021, businesses could have allowed their workers to forego masks in a room as long as everyone in that room was vaccinated and asymptomatic.  Businesses would have also been able to end social distancing rules and remove partitions/barriers from the workplace as long as they provided respirators to unvaccinated employees for voluntary use.  Under these standards, employers would have been required to review updated guidance from public agencies and to update their written COVID-19 Prevention Programs to align their written programs with the revised standards.  None of these changes or requirements will go into effect on June 15, 2021.

After a special meeting on June 9^th, the Standards Board voted to withdraw the revised standards that it had previously approved on June 3^rd.  The purpose of the meeting was for the Standards Board to consider some additional revisions to the revised standards to make the updated mask guidance more consistent with the latest guidance from the Centers for Disease Control (CDC) and California Department of Public Health (CDPH).  The special meeting was attended by members of the public and included a public comment session that lasted over two and a half hours.  The Standards Board voted to withdraw the revised revisions in their entirety.  As a result, the current Cal/OSHA standards that were adopted in November of 2020 will remain in effect.  This means that when California moves “Beyond the Blueprint” and its economy re-opens on June 15, 2021, businesses should follow the same COVID-19 safety workplace rules that they have been following all along, until further notice.

As businesses are well-aware of by now, the November 2020 standards require employees to practice social distancing and generally wear masks at all times, with limited exceptions.  Also, under these standards businesses are required to exclude employees from the workplace if they test positive for COVID-19 or if they come into close contact with someone at work who tests positive for COVID-19.  The one exception is that fully vaccinated employees who are asymptomatic do not need to be excluded from the workplace because of a close contact with a confirmed COVID-19 case.

Businesses should expect the November 2020 standards to be revised in the near future.  In its latest news release, Cal/OSHA stated that the Standards Board could consider new revisions to the COVID-19 standards as early as June 17^th.  Given Cal/OSHA’s impending revisions to its COVID-19 workplace standards, businesses should monitor Cal/OSHA’s webpage and be ready to act quickly once a new set of revised standards are approved.  To view the Cal/OSHA news releases on the updated standards, visit: https://www.dir.ca.gov/dirnews/link_page.html

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Recalling Employees

by Fenton & Keller

May 28, 2021

Question: I am in the process of reopening my business. Am I required to recall all of the employees I laid off last year?

Answer: On April 16, 2021, a new law went into effect requiring certain employers to offer vacant positions to certain laid-off employees based on a preference system in accordance with specified timelines and procedures. The law, Senate Bill (SB) 93, will expire December 31, 2024.

SB 93 requires “employers,” defined as:

• hotels with 50 or more guest rooms,
• private clubs,
• event centers,
• airport hospitality operations and airport service providers, and
• janitorial, building maintenance, and security services provided to office, retail, and other commercial buildings

to offer laid-off employees all vacant jobs that become available for which the laid-off employees are qualified. The law applies even if the employer relocated its operations, and it also applies to successor employers where there has been a change in control.

“Laid-off employee” means any employee who was employed by a covered employer for 6 months or more in 2019, and whose most recent separation from employment was due to an economic, non-disciplinary reason related to the COVID-19 pandemic. A laid-off employee that meets this definition is qualified for a position if the employee held the same or similar position at the business when the employee was laid-off.  Under SB 93, an employee who was terminated for performance reasons, or for reasons unrelated to the COVID-19 pandemic, is not entitled to rehire.

Laid-off employees who meet the SB 93 definition must be offered a job, in writing, in order of seniority with the employer, and must be given at least 5 business days to accept or decline the offer. An employer that declines to recall a laid-off employee on the grounds of lack of qualifications must provide the laid-off employee a written notice within 30 days stating the reason the employee was not offered a job, and provide a list of each employee that was recalled and the length of service for each such employee.  SB 93 requires employers to retain records for each laid-off employee for at least 3 years from the date of the written notice of the employee’s layoff.

SB 93  prohibits employers from retaliating against employees who exercise their rights under the new law and sets forth a process for filing a complaint with the Division of Labor Standards Enforcement.

On May 4, 2021, the Monterey County Board of Supervisors approved the “Hospitality Worker Right to Recall” Ordinance, which supplements SB 93. Under this  Ordinance, which applies only in the unincorporated area of the County of Monterey, a laid-off employee may bring an action in the Superior Court of the State of California against an employer for violations of SB 93. In order to bring a civil action, the laid-off employee must provide written notice to the employer and provide 15 days for the employer to cure any alleged violation. A laid-off employee who prevails in such a civil action may be awarded hiring and reinstatement rights; actual and statutory damages; and reasonable attorney’s fees and costs. The County Ordinance will go into effect on June 3, 2021 and will expire on January 1, 2022, unless renewed, revised, or extended.

As businesses subject to SB 93 re-open to full capacity, it is important to follow the requirements of laid off employees’ rights to be recalled to their former jobs.

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American Rescue Plan Act 100% COBRA Subsidy

by Fenton & Keller

May 14, 2021

Question: Two of my employees were laid off over the last year because of the pandemic, and one employee resigned.  An employee I laid off in January 2021 just called me asking if I was going to pay his COBRA premiums.  Am I responsible for his premiums?

Answer: On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 ("ARPA"). Among other provisions, ARPA created a 100% COBRA premium subsidy and additional COBRA enrollment rights for certain employees (and their families) who lost group health plan coverage due to an involuntary termination of employment or a reduction of hours.

COBRA requires an employer-sponsored group health plan to give employees who otherwise would lose coverage due to termination (or another qualifying event) a chance to continue to buy coverage for themselves and any family members on the plan for a limited period after the qualifying event. The maximum coverage period is generally 18 months.  Under the ARPA, from April 1, 2021 through September 30, 2021, group health plans providing COBRA continuation coverage (or continuation coverage under state COBRA laws) must offer a 100 percent tax-free subsidy of COBRA premiums for “assistance eligible individuals” (AEIs) and their qualified beneficiaries.  AEIs who elect continuation coverage will not receive a payment for the premium assistance. Instead, the COBRA premium amount is advanced by the employer or plan, which will then be reimbursed by the federal government through a refundable credit against payroll taxes.

An individual is an AEI if he or she qualifies for COBRA coverage due to an involuntary termination of employment or reduction of hours.  Individuals who qualify for COBRA coverage due to other qualifying events, such as a voluntary termination of employment, are not AEIs and are not eligible for the premium subsidy. The subsidy does not apply to employees or family members who are or become eligible for other group health coverage or Medicare.

ARPA also provides a "second chance" election for individuals who did not initially elect COBRA or who let their COBRA coverage lapse prior to April 1, 2021 but are still within the 18-month COBRA eligible period.  Individuals who experienced an involuntary termination of employment or a reduction of hours so that COBRA would have started sometime within the 18 months prior to April 1, 2021, but who did not timely elect COBRA, may still elect subsidized COBRA coverage prospectively.  Additionally, individuals who had elected COBRA coverage but discontinued such coverage before April 1, 2021 are eligible to re-elect COBRA coverage if they would otherwise be AEIs and are still within their COBRA coverage period.

Employers or plan administrators must determine which employees/beneficiaries lost health plan coverage beginning on or after November 1, 2019 because of an involuntary termination of employment or reduction in hours.  For eligible individuals who become entitled to COBRA coverage from April 1 to September 30, 2021, the employer or plan administrator must include notice of the availability of premium assistance with its usual COBRA notice.  For other individuals who are still within their COBRA eligibility period who are receiving coverage or declined or dropped coverage, the employer or plan administrator must send notice of the availability of premium assistance and, if applicable, the extended COBRA election period.  The deadline to provide this notice is May 31, 2021.  Thereafter, the individual or beneficiary has 60 days after receiving a notice of the COBRA subsidy to make the election.

Additional guidance and model notices are available at https://www.dol.gov/agencies/ebsa/laws-and-regulations/laws/cobra/premium-subsidy.

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Expansion of Mandated Reporter Laws

by Fenton & Keller

April 30, 2021

Question:  My business employs minors, especially during the summer.  Do I need to be concerned about any of my employees being mandated reporters of child abuse or neglect?

Answer:  Potentially.  The Child Abuse and Neglect Reporting Act (“CANRA”) requires that certain individuals who work with children, known as “mandated reporters,” report to specified law enforcement or county social services departments whenever they, in their professional capacity or within the scope of their employment, have knowledge of or observed a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.  Previously, there were about 49 different mandated reporters under the CANRA, including teachers, EMTs, and coaches. Assembly Bill (AB) 1963, effective January 1, 2021, expanded this list to include “human resource employees” of a business with 5 or more employees that employs minors, and, only for the purposes of reporting sexual abuse of children, any adult employee whose duties require direct contact with and supervision of minors in a business with 5 or more employees.

Under AB 1963, “human resources employees” are defined broadly as any employee designated by the employer to accept any complaints of misconduct (i.e., discrimination, harassment, retaliation, etc.) made under California’s Fair Employment and Housing Act.  For example, if the employer’s harassment prevention policy directs employees to report harassment to their supervisor, human resources, or any manager, then all of those individuals are now mandated reporters as of January 1, 2021.  Human resources employees are required to report all types of child abuse or neglect, while employees whose duties require direct contact with employees who are minors are only required to report sexual abuse.

Reporting Requirements

Under CANRA, if a mandated reporter knows or suspects that a child has been the victim of abuse or neglect, he or she must make an initial report by telephone to a designated agency such as a police or sheriff’s department, or the county welfare department, immediately, or as soon as is practicable, and provide a written follow-up report within 36 hours.  In Monterey County, the Department of Social Services is a designated agency.  Reports of abuse and neglect can be reported to either of its 24-hour hotlines: (831) 755-4661 or (800) 606-6618.  Visit SS8572B (monterey.ca.us) CHILD ABUSE SUMMARY REPORT DEPARTMENT OF JUSTICE (DOJ) FORM SS 8583 (monterey.ca.us) to obtain the Suspected Child Abuse Report (SCAR) forms and instructions for submitting written reports.

Employer Training Requirements

Employers who employ minors are now required to provide training in child abuse and neglect identification and reporting to all mandated reporters.  This training requirement may be met by completing the general online training for mandated reporters offered by the Office of Child Abuse Prevention in the State Department of Social Services.  Information on this training may be found at https://mandatedreporterca.com/.

Employers should identify the employees within their business who are mandated reporters, notify these employees of their status, and begin coordinating training.  Employers must provide their mandated reporters with written notice that acknowledges their status as mandated reporters, their obligations under CANRA, and the confidentiality rights and obligations under CANRA.   The text of the new law can be found at Bill Text - AB-1963 Child abuse or neglect: mandated reporters. (ca.gov).

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