Did you miss Schneiders & Associates Annual Employment Law Update, 2023? You can watch the recording and learn about new employment law changes in 2023, including wage and hour updates. Partner Roy Schneider and Attorney Christopher Correa discuss in detail, the changes the new year will bring and help you prepare for the road ahead!
California employers are subject to countless federal, state and local laws, imposing various requirements, including wage and hour and anti-discrimination laws. Unfortunately, many employers – particularly small businesses – are unaware of their obligations and violate various worker protection laws, often resulting in expensive lawsuits, civil settlements and penalties. Here are some common, costly mistakes employers make:
Misclassifying Non-Exempt Workers as Exempt
Generally, all workers are entitled to overtime pay. However, some employees – typically executive, managerial or professional employees – are “exempt” from overtime and receive a flat salary, regardless of the number of hours the employee works. However, the exemption only applies in certain narrow situations defined by law, and many employers improperly classify workers as “exempt” when they are legally entitled to overtime wages and meal and rest break requirements.
Misclassifying Employees as Independent Contractors
Determining whether a worker is an employee or independent contractor depends on a number of factors, and the law in this area is still evolving with the recent California Supreme Court decision in Dynamex v. Superior Court, and California’s new AB5 legislation. All workers in California are presumed to be employees, and there are only limited circumstances under which a worker (particularly if the worker will be doing the type of work that is part of the employer’s normal business) can be treated as an independent contractor. Because of the complexity surrounding the classification of independent contractors, and the enormous potential liability for employers for misclassifying workers, it is imperative to speak with legal counsel before treating a worker as an independent contractor.
Failing to Train Supervisors Regarding Employment and Labor Laws
Employment laws prohibit employers from taking action against an employee for certain reasons, including discrimination on the basis of a protected characteristic such as race, religion, gender, sexual orientation, national origin, pregnancy, etc. Employees are also protected from retaliation for complaints of discrimination or illegal activity. It is vital to train supervisors to manage their employees in accordance with all applicable laws.
Failing to Use an Employee Handbook
An employee handbook informs employees about the employer’s values and policies and facilitates compliance with employment and labor laws. A proper employee handbook can be an essential shield for an employer to raise when defending wage and hour claims or discrimination claims.
Failing to Properly Document Employee Job Performance
Proper documentation clearly establishes the employer’s expectations and where the employee failed to reach them. Written job descriptions and employee evaluations serve as training tools, performance measures and critical evidence in the event you have to terminate an employee.
Failing to Accommodate Disabled Workers
The law not only prohibits employers from discriminating against those with disabilities, it also imposes a duty on employers to engage in an “interactive process” with employees who may have a disability and to “reasonably accommodate” disabled employees so they can perform the essential functions of their job. Accommodations may include assistive devices, a modified work schedule or a restructuring of job duties.
Failing to Comply with Wage Payment and Notification Requirements
California requires employers to pay their employees in a certain manner and provide written notice of pay periods and amounts. There are no less than ten itemized requirements that must appear on all employee pay stubs. Failure to comply can subject the employer to penalties and a civil lawsuit, and every pay period in which a violation of these requirements exists can trigger a separate penalty.
If you have questions about your compliance in regards to any of the foregoing employment laws, please do not hesitate to contact an employment attorney at Schneiders & Associates, L.L.P. for advice and legal guidance.
Governor Gavin Newsom signed several new laws that will take effect at the start of 2023. Here are 5 new laws to be aware of as we ring in the new year!
Minimum Wage Increase
California’s minimum wage will increase to $15.50. The new state salary threshold will increase to $64,480. Fast food minimum wage will increase to $22 per hour. The new law applies to “fast food chains” with 100 or more restaurants nationwide. It defines a “fast food restaurant” as establishments that provide food for “immediate consumption either on or off the premises” for customers who select and pay for items before eating, and where the restaurant prepares items in advance. The law does not apply to restaurants with table service.
Governor Newsom also signed AB 1949, which makes Bereavement Leave a protected Leave of Absence. AB 1949 applies to all employers with five or more employees and all public sector employers. To be eligible for bereavement leave, the person must be employed by the employer for at least 30 days prior to starting the leave. Employees may take up to five days of bereavement leave upon the death of a family member, defined as including a spouse, child, parent, sibling, grandparent, grandchild, domestic partner or parent-in-law. Bereavement leave may be unpaid, but employees can use existing leave available to the employee (e.g., vacation, paid time off [PTO], sick leave, etc.). Bereavement Leave must be completed within three months of the family member’s death. Employers can require documentation to support the leave including a death certificate; a published obituary; or a verification of death, burial or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution or government agency.
Effective January 1, 2023, Governor Newsom proclaimed the following holidays:
- Monday, April 24 Genocide Remembrance Day
- Monday, June 19 Juneteenth
- Friday, September 22 Native American Day
- Sunday, January 22 Lunar New Year
AB 1655 adds June 19, known as “Juneteenth,” to the list of state holidays. The bill authorizes state employees to elect to take paid time.
AB 2596, recognizes Lunar New Year as an official state holiday and allows state employees to take paid time off from work to celebrate.
AB 1801 authorizes state employees to elect to take time off with pay in recognition of “Genocide Remembrance Day.”
AB 855 establishes that California Native American Day will be a paid holiday for all statewide court employees.
SB 1162 requires businesses with 15 or more employees to include information about salary ranges for all job postings. It also gives workers the right to know the pay scale for their current position. Companies with 100 or more employees are required to submit pay data and wage history to the state by May of each year.
COVID-19 Noticing Requirements
AB 2693 extends the employer’s obligation to notify its employees about possible COVID-19 exposure in the workplace until January 1, 2024. It also allows employers to post a notice of a possible workplace exposure instead of issuing individual written notice to each employee. AB 2693 eliminates the employer’s requirement to notify the local health department.
What Employers Should Do Now
Register for Schneiders & Associates Annual Employment Law Update, 2023. New employment laws, including the 5 summarized, will be discussed on January 25, 2023 by Schneiders & Associates Partner Roy Schneider and Attorney Christopher Correa. Roy and Christopher will present the 2023 Annual Employment Law Update – an in-depth discussion and further explanation of new laws, via Zoom. Please register for this free webinar. We hope to see you there to answer all your new employment law related questions!
AB 84/SB 114 – COVID-19 Supplemental Paid Sick Leave (SPSL)
California lawmakers passed legislation to reinstate COVID-19 Supplemental Paid Sick Leave, providing most California employees with up to two weeks of sick pay if an employee or family member tests positive for COVID-19.
“As the Omicron surge intensified, workers screamed from the rooftops about the desperate need to reinstate COVID paid sick leave,” California Labor Federation Executive Secretary-Treasurer Art Pulaski said in a statement. “The governor and Legislature heard frontline workers loud and clear, and we appreciate them acting with urgency to get this done. Once again, California shows it’s a national leader on worker protections and COVID mitigation.”
Here is what employers need to know:
- Applies to employers with 26 or more employees.
- Retroactive to January 1, 2022 and will and will expire on September 30, 2022.
- Requires employers to provide up to two weeks of SPSL to recover from COVID-19 or care for a family member.
- Employees are entitled to 40 hours of SPSL for the following reasons:
- The covered employee is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidance of the State Department of Public Health, the federal Centers for Disease Control and Prevention (CDC), or a local public health officer who has jurisdiction over the workplace.
- The covered employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
- The covered employee is attending an appointment for themselves or a family member to receive a vaccine or a vaccine booster for protection against COVID-19, limited to three days or 24 hours.
- The covered employee is experiencing symptoms or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or vaccine booster that prevents the employee from being able to work or telework.
- The covered employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
- The covered employee is caring for a family member who is subject to an order or guidance or who has been advised to isolate or quarantine.
- The covered 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.
- An additional 40 hours for an employee or family member tests positive.
- Maximum of 80 hours of leave. Part time employees receive a pro-rated amount of time.
Governor Gavin Newsome is expected to sign legislation this week, enacting the new law. If you have questions about COVID-19 Supplemental Paid Sick Leave or other new laws affecting your business, contact our employment law experts at Schneiders and Associates, L.L.P. at (805) 764-6370 or visit our website at www.rstlegal.com
The text of the bills can be found at:
Theodore Schneider assists his clients in Ventura County and surrounding areas, with respect to all aspects of personnel matters, including employee discipline, wrongful termination, retaliation, discrimination, hostile work environment, sexual harassment, leaves of absence, Americans with Disabilities Act, Fair Employment and Housing Act, Fair Labor Standards Act, and the California Labor Code. Ted also drafts and reviews employee handbooks and employment policies for his clients. Email Ted at firstname.lastname@example.org.
Ring in the new year by preparing your business for new California workplace laws! The past year has had human resource professionals scrambling to keep up. The California Legislature passed several laws that will affect California employers. Our employment law attorneys have listed “22 for 2022” new employment laws that you need to know about as we head into the new year. Hold on to your seats!
SB 93: Rehiring and Retention Law
SB 93 requires that employers in certain industries, particularly the hospitality industry, make written job offers to employees whom they laid off because of COVID-19. Employees have five business days to respond, and employers must keep records for three years.
AB 1003: Wage theft
AB 1003 makes intentional theft of wages in an amount greater than $950 from any one employee or $2350 in from 2 or more employees in any consecutive 12-month period punishable as grand theft, which is punishable either as a misdemeanor or felony. Examples of wage theft include being paid less than minimum wage per hour, not being allowed to take meal and rest breaks, owners or mangers taking tips, bounced checks, to name a few.
AB 1033: Expansion for CFRA Leave to Include Parents-in-Law
Employers must grant eligible employees up to 12 weeks of job-protected time off from work annually for the purposes of providing care to a parent-in-law with a serious medical condition under the California Family Rights Act (CFRA).
AB 685: Noticing Requirements
AB 685 establishes employer reporting and noticing requirements upon notice of a potential exposure to COVID-19 at the workplace. If an employer receives a notice of a potential exposure to COVID-19, the employer must, within one business day, provide written notice to all employees and the employers of subcontracted employees that were on the premises at the same worksite, provide information regarding benefits, and notify all employees of the disinfection and safety plan.
AB 654: Employer Reporting Requirements Revised
AB 654 expands the types of employers who are exempt from COVID-19 outbreak reporting requirements. Employers such as community clinics, adult day health centers, community care facilities, and child daycare facilities are exempt from COVID-19 outbreak reporting required under AB 685.
AB 2537 and SB 275: PPE Requirement
AB 2537 and SB 275 requires that employers provide certain employees (those working in hospitals) with Personal Protective Equipment (PPE) and maintain a three-month stockpile and provide inventory information to Cal/OSHA upon request.
SB 331: Limits NDAs and Settlement Agreement Terms in Employment Cases
SB 331 further limits the use of non-disclosure agreements (NDAs) and settlement agreement terms when settling employment legal claims involving harassment, discrimination, or retaliation.
SB 1159: COVID-19 Workers’ Compensation
SB 1159 expands access to workers’ compensation so that first responders, health care workers and people who test positive due to an outbreak at work get support, including necessary medical care and wage replacement benefits. Employers are required to notify their insurance carriers and/or third-party administrators, in writing, of all known employee COVID-19 positive cases, whether the case is work-related or not, within 3 business days.
SB 807: Personnel Records Retention
SB 807 extends the current personnel records retention requirement to 4 years.
SB 1383: California Family Rights Act (CFRA) Expanded to Cover Businesses with Five or More Employees
SB 1383 expands CFRA to employers with five or more employees and expands the scope of “family members” for whom employees take leave to include many additional categories. The new law replaces the new Parent Leave Act. The new law allows for the ability to care for a “family member” with a serious health condition: Family members expanded to include siblings, grandparents, grandchildren, and domestic partners. The definition of “child” is expanded to include adult children.
AB 2399: Paid Family Leave for Active Military Duty
AB 2399 extends the definition of Paid Family Leave under the state’s Unemployment Insurance Code to include coverage for active military members and their families. It provides wage replacement benefits for employees to take time off to care for a seriously ill family member.
AB 2043: Occupational Safety and Health, Agricultural Employers and Employees
AB 2043 requires employers to disseminate information of best practices for COVID-19 infection prevention to agricultural employees, in both English and Spanish. It also requires that Cal/OSHA work with employers and employees on outreach campaigns targeting agricultural employees. The law only applies during the state of emergency.
AB 1867: Supplemental Paid Sick Leave
AB 1867 expands supplemental paid sick leave for COVID-19- related reasons for employers not covered by the federal Families First Coronavirus Response Act (FFCRA) – employers with 500 or more employees, as well as health care providers and first responders.
Vaquez v. Jan-Pro Franchising International, Inc. (Cal. Sup. Court, Jan. 14, 2021)
In the case of Vaquez v. Jan-Pro Franchising International, Inc., the California Supreme Court ruled that the independent contractor ABC test in Dynamex Operations West, Inc. v. Superior Court (Dynamex) applies retroactively to all cases “not yet final” as of the date of the Dynamex decision. A business that relied in good faith on Borello can now be liable for not following the ABC test before the Dynamex decision was ever issued.
AB 1512: Security Guard Rest Breaks
AB 1512 changes the law to provide that security guards may be required to remain on the premises during rest periods and to remain on call during the rest period.
AB 3075: Expansion of Successor Liability for Labor Code Judgements
AB 3075 provides that “[a] successor to a judgment debtor shall be liable for any wages, damages, and penalties owed to any of the judgment debtor’s former workforce pursuant to a final judgement, after the time to appeal therefrom has expired and for which no appeal therefrom is pending.” AB 3075 also adds new obligations for a company when submitting its statement of information with the California Secretary of State, to state whether “any member or any manager has an outstanding final judgment issued by the Division of Labor Standards Enforcement or a court of law, for which no appeal therefrom is pending, for the violation of any wage order or provision of the Labor Code.”
Brown v. TGS Management Co., LLC (2020)
Brown v. TGS Management, LLC (2020) the California Court of Appeal decision holds that an employee confidentiality agreement may be voided as a de facto unlawful non-compete agreement if it has the effect of preventing the employee from working in the industry.
AB 1947: Complaints with DLSE
Effective date: January 1, 2021. This legislation extends the statute of limitations to file a complaint with the State of California’s Division of Labor Standards Enforcement from six months after the occurrence of the alleged violation(s) to within one year after the occurrence of the alleged violation(s).
SB 973: New Pay Data Reporting Obligations for Employers with 100 or More Employees
SB 973 requires employers with 100 or more employees and who are required under federal law to file an annual federal Employer Information Report (EEO-1) to submit an annual pay data report to the California Department of Fair Employment and Housing (DFEH). The report must include the number of employees and the hours they worked by race, ethnicity and gender in 10 federally identified job categories and whose annual earnings fall within the pay bands used by the U.S. Bureau of Labor Statistics in the Occupational Employment Statistics survey. Since SB 973 was enacted on September 30, 2020, private emloyers with 100 or more employees must submit their pay data reports to the DFEH by March 31, 2021, and annually thereafter.
AB 2143 – Loosened Restrictions on “No Re-Hire” Provisions in Employment Settlement Agreements
AB 2143 requires that the aggrieved former employee must have filed the claim in good faith in order for the prohibition against “no-rehire” provisions apply. AB 2143 Expands this “no-rehire” exception to allow no-rehire provisions when the former employee engaged in any criminal conduct, rather than limiting the exception to sexual harassment or sexual assault. To qualify for the “good faith determination” exception, an employer’s determination must have been made and documented before the aggrieved person filed the claim or complaint.
California Proposition 22 (Prop 22): Exempts App-Based Drivers from AB 5
Prop 22 allows app-based ride share and food delivery companies to treat workers as independent contractors, even though they do not qualify as such under the AB 5’s “ABC” Test. Workers are only independent contractors if the workers have freedom to determine dates and times of work, and the company does not restrict the driver from performing rideshare or delivery services for other companies.
There are several new laws that require employers of all sizes to update their employee handbooks. Employee handbook revisions should address remote work rules, COVID-19 specific workplace safety plans, expanded leave rights (CFRA), and changes to crime victims leave and organ and bone marrow donation. Contact our employment law attorneys at Schneiders & Associates for a review of your current handbook.
This summary of new laws will be discussed on January 25, 2022 by Schneiders & Associates Partners Roy and Ted Schneider. Roy and Ted will present the 2022 Annual Employment Law Update – an in-depth discussion and further explanation of new laws, via Zoom. Please register for this free webinar at www.rstlegal.com. We hope to see you there to answer all your new employment law related questions!
Please note, this webinar is approved for one hour of MCLE credit.
It is likely that President Biden’s administration will implement a mandatory vaccine policy for all private-sector employers with 100 or more employees. Failure to comply with the policy will result in significant fines (up to $13,600 per violation). This sounds simple on its face, but what if you do not have 100 employees; or, what if one of your employees refuses to get vaccinated?
If you employ less than 100 employees, you can still implement a mandatory vaccine policy, as long as it complies with state and federal laws prohibiting discrimination based on a medical condition or disability or a sincerely held religious belief. This requires the employer to engage in an interactive dialogue with the employee in an effort to find a reasonable accommodation for the employee’s disability or sincerely held religious belief.
A mandatory vaccine policy does not mean that every employee must be vaccinated. An employee can refuse to get vaccinated and may still be entitled to keep his or her job. The new policy requires that all employees receive the COVID-19 vaccine and any FDA-approved boosters, or that the employee must produce a negative test at least once a week. Unvaccinated employees will also be required to wear a mask indoors, as well as any other locations that the local, state, or federal rules require masks. (For example, LA and Ventura Counties are currently requiring all people to wear a mask indoors, regardless of their vaccination status.)
At this point, it is unclear who bears the cost of the testing kits, but early opinions appear to put the burden on the employer to provide testing kits or pay for unvaccinated employees to get tested by a healthcare provider or pharmacy. Furthermore, the employer must exercise some control over the testing procedure and accuracy of the results. You cannot permit the unvaccinated employee to test himself or herself at home and self-report the results upon arriving at work.
While this may not present a burden on larger employers, the cost of test kits could tip the balance in favor of smaller employers telling the unvaccinated employee (or applicant) to seek employment elsewhere. The cost factor is not enough by itself to end the interactive dialogue, but it will be helpful to the small business owners’ analysis.
For now, the Equal Employment Opportunity Commission (EEOC) and Department of Fair Employment and Housing (DFEH) are using a number of factors to determine whether a potential accommodation is reasonable or puts an undue burden on the employer. These include: the nature and cost of the accommodation; the employer’s financial resources, the number of employees at a facility, and the effect on expenses at that facility; the employer’s operation type, the geographic separateness, and effect on administrative or fiscal relationship of the facility making the accommodation; and the impact of the accommodation on the worksite.
Some employees may be able to perform their jobs remotely. Others may work alone or outdoors and geographically away from other employees or clients and customers.
If you are an employer and have questions regarding vaccine mandates in the workplace and wish to speak with an Employment Law expert, contact our Ventura County office, at 805-764-6370.
By: Christopher Correa, Esq.
About Christopher Correa
Chris is an expert in COVID-19 employment related issues, such as paid time off, and getting employees back to work safely. Chris advises employers about their rights and obligations as businesses begin to reopen.
Email Christopher at email@example.com.
Updated October 19, 2021
The Ventura County Public Health Officer has extended its indoor mandatory mask mandate, for both the vaccinated and unvaccinated. County officials are concerned about the increased transmission of COVID-19, specifically among the unvaccinated. The mandate requires all persons to wear a face covering indoors, including the workplace. Masks must also be worn inside all government buildings, restaurants and bars, retail outlets, venues, and gatherings.
The extension requires that all business owners and employers continue to require its employees, customers, clients, delivery persons, and vendors wear mask inside the building, regardless of vaccination status.
On August 23, 2021, the FDA approved Pfizer-BioNTech COVID-19 Vaccine. The vaccine will be marketed as Comirnaty and is approved for people who are 16 years of age and older. The FDA’s approval will very likely encourage more employers to mandate that its employees receive the vaccine.
Some employers have been reluctant to mandate vaccinations, but researchers believe that the FDA approval will ease some of the concerns both employers and employees have about requiring a vaccine that had previously only been authorized for emergency use.
Employers are not required to mandate that employees receive the vaccine; however, those employers who do not require employees to be vaccinated will still need to comply with current legislation at the federal, state, and local levels, including regular testing for non-vaccinated employees, quarantining employees who are positive or have been advised to quarantine by a medical professional due to being exposed to Covid-19, and offering up to 80 hours of emergency sick leave through September 30, 2021.
Currently, Pfizer is the only Covid-19 vaccine to receive FDA approval. Moderna’s Covid-19 vaccine is expected to receive the same approval once Moderna provides adequate information about the manufacturing process, its facilities, and submits to an in-depth inspection by the FDA.
Employers should still require their employees to submit proof of vaccination and keep accurate details including the date of the vaccination, whether both shots have been received, and what proof was provided by the employee (a copy of the vaccination card, the employee’s word, etc.). There have also been recent discussions about a booster shot for those individuals who have already been vaccinated. If—or when—the booster becomes necessary, the same requirements will likely apply.
Finally, regardless of the employer’s decision to mandate vaccination for its employees, the employer still has an obligation to offer reasonable accommodation for those employees who refuse the vaccine due to a medical condition or sincerely-held religious beliefs.
If you have any questions about implementing a vaccine requirement or if you need guidance in addressing a reasonable accommodation for certain employees, please contact Schneiders & Associates, L.L.P. at (805)764-6370.
Cal/OSHA Guidelines for Employers
After nearly 15 months of being quarantined, tested, facemasked, socially-distanced, and finally vaccinated, Californians are returning to “normalcy”, which in many instances, means returning to the workplace. Below you will find what Employers need to know about Cal/OSHA’s COVID-19 Prevention Temporary Standards, including what has changed, what remains the same, and what to expect as we enter the second half of 2021.
Can Employers Require Employees to be Vaccinated?
The first question many employers—and employees—have is: Can an employer require its employees to be fully-vaccinated and return to the workplace? The short answer is: Yes. There are three issues that employers need to be aware of—and in compliance with—to avoid litigation.
First, an employer cannot require an employee with a disability that prevents him or her from receiving a COVID-19 vaccine to be vaccinated. Like any disability claim, the employer must engage in the interactive process to see if it can reasonably accommodate the employee.
Second, an employer must also reasonably accommodate an employee with sincerely-held religious beliefs or practices that prevent them from receiving the vaccination.
Third, the employer cannot retaliate against any employees who refuse to receive the vaccine because of a disability or sincerely-held religious belief.
What Has Changed?
A lot has changed for employees who have received both doses of one of the FDA-approved vaccines and waited the required amount of time for their body to build its immunity. The Tier system is gone. Facemasks are gone. Social-distancing is gone. And, for some employees, the ability to work remotely in your pajamas is gone.
Fully-vaccinated employees do not have to be tested or excluded from work after a close contact unless the employee displays COVID-19 symptoms.
Fully-vaccinated employees do not have to wear masks in outdoor settings unless there is an outbreak.
Fully-vaccinated employees will be required to wear a mask in settings such as classrooms, mass transit, or other places where masks are required for everyone (employees and non-employees), or in the event of an outbreak.
Employees, whether vaccinated or not, may choose to wear a facemask, and the Employer cannot retaliate against that/those employee(s) who choose to don a facemask.
Employers must document the vaccination status of fully-vaccinated employees if they do not wear a facemask indoors.
Employees who are not fully-vaccinated and exhibit COVID-19 symptoms must be offered testing by their employer. The employee must still receive their wages and be reimbursed for mileage if the employee drives his or her own vehicle (or reimbursement for the cost of public transportation) to the testing location.
Employees who are not fully-vaccinated may request respirators (facemasks) for voluntary use from their employers at no cost. Employers cannot retaliate against an employee who requests and/or uses a respirator (facemask).
In the case of Employer-provided housing and transportation are exempt from the guidelines requiring facemask and social-distancing for employees who are fully-vaccinated.
What Remains the Same?
Employers must still have a written COVID-19 Prevention Program that includes: (1) identifying and evaluating employee exposures to COVID-19 health hazards, (2) implementing effective policies and procedures to correct or remedy unsafe and unhealthy conditions, and (3) allowing adequate time for handwashing and cleaning frequently touched surfaces and objects (tables, countertops, keyboards, doorhandles, shared workspaces, etc.).
Employers must provide effective training and instruction to employees on how COVID-19 is spread, infection prevention techniques, and information regarding COVID-19-related benefits that affected employees may be entitled to under applicable federal, state, or local laws.
Employers must exclude employees who have COVID-19 symptoms and/or are not fully-vaccinated and have had a close contact with the workplace and, if that close contact is work-related, ensure continued wages.
A “close contact” is still defined as an employee who has been within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the “high risk exposure period.”
A “high risk exposure period” is still for COVID-19 cases who develop COVID-19 symptoms, from two days before they first displayed symptoms until ten days after symptoms first appeared, and 24 hours passed with no fever, without the use of fever-reducing medications, and symptoms have improved. For those who are asymptomatic, from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.
How Does Labor Code §248.2 (2021 COVID-19 Supplemental Paid Sick Leave law) Relate to the ETS ?
From January 1, 2021 through September 30, 2021, LC 248.2 requires employers with 26 or more employees to provide up to 80 hours of paid sick leave to employees unable to work or telework for the following reasons:
(1) Caring For Yourself: the covered employee is subject to a quarantine or isolation period related to COVID-19 or has been advised by a healthcare provider to quarantine or is experiencing symptoms of COVID-19 and in the process of seeking a medical diagnosis.
(2) Caring For a Family Member: the covered employee is caring for a family member who is either subject to a quarantine or isolation period related to COVID-19, has been advised by a healthcare provider to quarantine, or the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
(3) Vaccine-Related: the covered employee is attending a vaccine appointment or cannot work or telework due to vaccine-related side effects.
What Happens in the Event of COVID-19 Outbreak in the Workplace?
Employers must follow the requirements for testing and notifying public health departments of workplace outbreaks. (A “workplace outbreak” means three or more cases in an exposed workgroup in a 14-day period.)
In the event of an outbreak, facemasks are required regardless of employee vaccination status: (1) indoors, (2) outdoors when employees are less than six feet apart from another person.
Employers are required to offer COVID-19 testing at no cost during paid time to their employees who are not fully-vaccinated and had potential exposure to COVID-19 in the workplace, and provide the employees with information on benefits available to them.
Employers must contact the local health department immediately, but no longer than 48 hours after learning of three or more COVID-19 cases to obtain guidance on preventing the further spread of COVID-19 in the workplace.
Employers must maintain accurate records and track all COVID-19 cases, while ensuring that medical information remains confidential. These records (similar to employee personnel files and payroll records) must be made available to the employee or her representative, or as otherwise required by law, with personal identifying information redacted.
Employer must immediately report a COVID-19 serious illness or death to the nearest Cal/OSHA enforcement district office.
What Else Do Employer Need to Know Until the Next Set of Guidelines are Implemented?
Employers can require employees to submit proof of vaccination. According to the Department of Fair Employment and Housing (DFEH), this information does not run afoul the protections afforded to employees under HIPAA. However, under the ETS, an employer is not obligated to require employees to submit proof of being fully-vaccinated.
Acceptable options for Employers to maintain employee vaccination records include: (1) keeping a copy of the employee’s vaccination card on file, (2) maintain (and update) a list of employees who provided a copy of their vaccination card but did not give the employer a copy of the vaccination card, and (3) maintain a list of employees who self-attest to their being vaccinated.
If the workplace is inside a building or structure with natural or mechanical ventilation, or both, Employers should maximize as much as possible the quantity of outside air provided (subject to the EPA’s Air Quality rules in the event the natural air is polluted or would otherwise cause a hazard to employees).
If the workplace is controlled by the building owner, the employer needs to request that the building operator assist with compliance—the building owner’s employees are afforded the same protections as your employees.
What if an Employer Has a Question that was not Addressed?
Contact Schneiders & Associates LLP or call our offices at (805) 764-6370.
EFFECTIVE MARCH 29, 2021
- Employees who work for Employers with more than 25 employees are entitled to up to 80 hours of Paid Sick Leave (PSL).
- The Employee can make the request for PSL orally or in writing.
- This leave is retroactive to January 1, 2021 and will run through September 30, 2021.
- If an Employee took leave for COVID-related reasons prior to March 29, 2021, the employee should make an oral or written request to his or her employer for payment for up to 80 hours of work missed due to COVID-19.
Criteria to Qualify for the PSL:
If an employee is unable to work or work remotely, for any of the following reasons:
- Caring for the Herself or Himself. The employee is subject to quarantine or an isolation period related to COVID-19 as defined by an order or guideline of the California Department of Public Health, the CDC, or a local health officer with jurisdiction over the workplace, has been advised by a healthcare provider to quarantine, or is experiencing COVID-19 symptoms and seeking a medical diagnosis.
- Caring for a Family Member. The employee is caring for a family member who is subject to a COVID-19 quarantine or isolation period or has been advised by a healthcare provider to quarantine due to COVID-19, or is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
- Vaccine Related. The employee is attending a vaccine appointment or cannot work or work remotely due to vaccine-related symptoms.
Which Employees Are Covered:
- Full-Time Employees are entitled to 80 hours of leave.
- Full-time firefighters might be entitled to more.
- Part-Time Employees with varied schedules, 14 times the average number of hours worked per day for the past six months.
- Rate of Pay for COVID-19 Supplemental PSL for non-exempt (hourly) employees must be the highest of the following for each hour of leave:
- Regular pay for the workweek in which leave is taken.
- State minimum wage.
- Local minimum wage.
- Average hourly pay for preceding 90 days (not including OT)
- Exempt Employees must be paid the same rate of pay as wages calculated for other paid leave time.
An Employer may not retaliate or discriminate against any employee requesting leave under the COVID-19 Supplemental Paid Sick Leave.