Employment Law Bulletin | September 22, 2022

New Law Protects Employees’ Off Duty Marijuana Use

Effective January 1, 2024 (yes 2024), it will be unlawful for California employers to discriminate against an employee in hiring, termination, and other terms and conditions of employment based on (1) the employee’s off-the-job use of cannabis; and (2) drug test results that measure the nonpsychoactive cannabis metabolites in hair, blood, urine or other bodily fluids.

The new law’s protections address the limitations of traditional drug tests that don’t distinguish between unmetabolized tetrahydrocannabinol (THC) levels that can indicate impairment and cause psychoactive effects, from metabolized THC that is stored in the body as a nonpsychoactive cannabis metabolite long after cannabis use.  Currently, most cannabis tests show only the presence of the nonpsychoactive cannabis metabolite.

The law permits employers to act upon positive THC drug tests only if their actions are based on a scientifically valid preemployment drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.  We expect to see advancements in such tests over the next year, which may be why the law is not effective until January 2024.

Even after the law becomes effective, employers may still discipline employees for possessing, being impaired by, or using cannabis on the job, however, such use cannot be proven by a drug screening that screens for nonpsychoactive cannabis metabolites.

The new law does not apply to:

  • employees in the building and construction trades;
  • applicants and employees in positions requiring a federal background investigation or clearance; or
  • applicants or employees who are required by state or federal law to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

While the law does not become effective until January 1, 2024, it’s never too early to contact an SMT employment law attorney to discuss updating your workplace drug and alcohol policies and testing requirements.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | August 3, 2022

Minimum Wage Increase Effective January 1, 2023 for ALL Employers

On July 27, 2022, the California Department of Finance issued a letter certifying a 3.5% increase to the state’s minimum wage bringing it to $15.50/hour, effective January 1, 2023.  Unlike in prior years, there will not be a lower minimum wage rate for small employers with 25 or fewer employees.  Instead, the minimum wage will be the same for all employers regardless of size.  This means a $1.50 increase for small employers who had expected a jump from the current rate of $14/hour to $15/hour in 2023, and an unexpected .50 cent increase for large employers (26 or more employees).

In addition, because the exempt salary threshold is tied to the minimum wage rate, it will also be increasing.  For 2023, employers, regardless of size, will be required to pay a minimum salary of $64,480 in order to continue to classify an employee as exempt.  For small employers, this means a significant increase in pay for those currently paying their exempt employees the minimum salary of $58,240.  Large employers paying the minimum salary will also have to implement an increase from the current threshold of $62,400.

It is important to remember that employers must meet both the salary and duties requirements in order to classify an employee as exempt.  Failing to pay the minimum salary can destroy the exemption and lead to misclassification claims even if the employee spends 50% or more of their time performing exempt tasks.  Misclassification claims often involve serious exposure for unpaid overtime and meal and rest break penalties, making audits of your exempt employees’ salaries and job duties a priority for your business.

According to the Department of Finance, the rate increase is intended to help curb the impact of inflation.  Even so, many employers will see the rate increase as a significant challenge.  If you have questions about the rate increase or the consequences of misclassifying an employee as exempt, please reach out to a SMT employment law attorney.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | June 30, 2022

IRS Increases Standard Mileage Rate for Business Travel

Effective July 1, 2022, the standard mileage rate for operating an automobile for business travel will be 62.5 cents per mile, up 4 cents from the rate effective at the start of the year.  This rate will be in effect for the final six months of 2022.  Employers use the standard mileage rate as a safe harbor rate to reimburse employees who drive their personal cars for business purposes for their employers.

City of San Francisco and Other City Minimum Wage Increases on July 1, 2022

On July 1, 2022, San Francisco’s minimum wage increases to $16.99, up from $16.32.  The San Francisco Minimum Wage Ordinance applies to all employees who work at least two hours during any given week in the City of San Francisco, regardless of their employer’s location.  More information can be found at www.sfgov.org.

Other cities with July 1, 2022 minimum wage increases include Emeryville ($17.68), the City of Los Angeles ($16.04), the County of Los Angeles ($15.96) and Pasadena ($16.11).

Responsible Beverage Service Training Required for Alcohol Servers by August 31, 2022

Beginning July 1, 2022, ABC licensees with an ABC On-Premises License will be required to ensure alcohol servers and managers of alcohol servers receive training from an ABC-approved Responsible Beverage Service Provider within 60 days from the first date of employment.  The training requirement applies to employees hired before and after July 1, 2022, and must be completed by August 31, 2022.  The requirement includes completing a training program and passing an exam.  The law is designed to teach alcohol servers to responsibly serve alcoholic beverages and mitigate alcohol-related harm in California.  More information can be found at www.abc.ca.gov.

Please contact an SMT employment lawyer if you have questions about these new laws or if you need assistance with any employment law issues.  We are here to help.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | May 12, 2022

CAL/OSHA Revises and Adopts Emergency Temporary Standards for a Third Time

On May 6, 2022, the California Occupational Safety and Health Standards Board (“Cal/OSHA”) readopted the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards for the third time (“Revised ETS”).  The Revised ETS will be in effect until December 31, 2022, subject to change only if California Department of Public Health (“CDPH”) guidance changes.  The Revised ETS can be found here.  Cal/OSHA’s FAQs on the Revised ETS can be found here (general FAQs) and here (FAQs specific to the changes).  Terms capitalized in this article are defined in the Revised ETS.

The latest changes reflect the agency’s desire to attain flexibility and consistency with the CDPH.  In an apparent attempt to recognize that the recent COVID-19 variant attacks both vaccinated and unvaccinated individuals, the Revised ETS removes all distinctions based on vaccination status, making the ETS applicable to all employees.  Below is a summary of the major changes that affect employers.

Revised Testing Requirements

Regardless of the employee’s vaccination status, employers must offer testing at no cost and during paid work time to all symptomatic employees and employees with a workplace Close Contact.  However, employers are not required to offer testing to employees who have recently recovered (within 90 days) from COVID-19.

The Revised ETS also now permits the use of self-administered and self-read tests, so long as the employee provides independent verification of the results, such as a time-stamped photograph of the results.

Revised Face Covering Requirements

Face coverings are no longer mandatory indoors for unvaccinated employees.  However, all employees are required to wear masks under the following circumstances:

  • If the CDPH issues an order requiring them.  Currently, face coverings are required in the workplaces listed below.  Review CDPH guidance here, as these are subject to change.
    • Emergency shelters
    • Cooling and heating centers
    • Healthcare settings
    • Correctional facilities and detention centers
    • Homeless shelters
    • Long term care settings and adult and senior care facilities
  • When the employee has tested positive for COVID-19 and returns to work within ten days of experiencing symptoms or receiving a positive test result; or
  • When the employee is part of an Exposed Group during a workplace Outbreak or Major Outbreak.

If an employee requests an N-95 respirator, employers must provide it to the employee free of charge regardless of vaccination status (previously only required for unvaccinated employees).

Revised Physical Distancing Requirements

All physical distancing requirements have been removed unless there is an Outbreak, a Major Outbreak, or an ongoing requirement to assess and prevent the transmission of disease.

Partitions and barriers are no longer necessary to reduce COVID-19 transmission.

Revised Exclusion Requirements

The exclusion of employees from the workplace is now required pursuant to CDPH guidelines. Click here for the current CDPH guidelines to ensure compliance.

Employer-Provided Transportation and Housing Requirements

Employee vaccination status is no longer a differentiating factor in determining what requirements apply for employer-provided housing and transportation; rather, the requirements apply to all employees.

Cleaning and Disinfection Requirements Removed

Cleaning and disinfecting requirements are no longer necessary under the Revised ETS.

Requirements from the Previous ETS That Have Not Changed

The following requirements remain the same under the Revised ETS:

  • Establishing, implementing, and maintaining an effective written COVID-19 Prevention Program.
  • Providing effective training and instruction to employees on the employer’s prevention plan and their rights under the ETS.
  • Providing notification to public health departments of Outbreaks.
  • Providing notification to employees of potential exposure and Close Contacts.
  • Offering COVID-19 testing after potential exposures.
  • Requirements for responding to COVID-19 cases and Outbreaks.
  • Isolation and exclusion pay requirements.
  • Basic prevention requirements for employer-provided housing and transportation.

Conclusion

Failure to implement and enforce the Revised ETS in your workplace exposes your business to Cal/OSHA fines, workers’ compensation liability for workplace COVID-19 cases, and employee claims.  If you would like assistance in understanding the Revised ETS, investigating workplace exposures, or developing the required notices to employees, please contact an SMT Employment Attorney.  We are here to help you.

If SMT previously created an ETS-compliant Protocol, Workplace Investigation, and Notice packet for your business, please reach out to us so we can prepare an updated packet that complies with the Revised ETS requirements.  If you haven’t yet received a packet and would like to have one prepared so you will be ready to quickly investigate and notify your employees of a COVID-19 exposure in the workplace, please contact an SMT Employment Attorney.

Kari Brown
Betsey Cunningham

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | March 3, 2022

New Orders Loosen Mask Requirements for the General Public and Employees In Most Workplaces

Effective March 1, 2022, the California Department of Public Health’s (CDPH) face covering requirements for the general public and most workplaces have been downgraded from mandatory to a “strong recommendation” regardless of vaccination status.  Sonoma County is following the state guidance and has dropped its more restrictive order.

Universal masking is still required in the following specified high-risk settings:

  • Indoors in K-12 schools, childcare (through March 11, 2022)
  • On public transit
  • Emergency shelters and cooling and heating centers
  • Healthcare settings
  • State and local correctional facilities and detention centers
  • Homeless shelters
  • Long Term Care Settings & Adult and Senior Care Facilities

Other workplace scenarios where mandatory face coverings are required regardless of vaccination status include:

  • employers with onsite indoor health screenings:  screeners and the employees being screened must wear face coverings
  • if there is an “outbreak” or “major outbreak” (as defined by Title 8 California Code of Regulations sections 3205.1 and 3205.2) employees in the exposed group must wear face coverings when indoors
  • employees who have had a COVID-19 exposure and are exempt from quarantine or are ending their quarantine after Day 5 per the Cal-OSHA COVID-19 Isolation and Quarantine Guidelines
  • employees who have tested positive for COVID-19 and are returning to work after day 5 per the Cal-OSHA COVID-19 Isolation and Quarantine Guidelines.

While masking is no longer mandatory in most workplaces, employers may impose their own face covering requirements.  Employees must also be permitted to wear face coverings if they wish to do so.

The Cal-OSHA COVID-19 Isolation and Quarantine guidelines published on January 14, 2022 remain in effect for employees who test positive for COVID-19 or were exposed to someone with COVID-19.

While the CDPH, Cal-OSHA and Sonoma County are now in line with regard to face covering requirements, some California cities and counties continue to have their own requirements.  Be sure to check your local jurisdiction or contact an SMT employment attorney if you need assistance.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | February 10, 2022

State of California Revives COVID-19 Supplemental Paid Sick Leave (Again)
Take Action Now!

Yesterday afternoon, Governor Newsom approved SB 114, reviving COVID-19 Supplemental Paid Sick Leave (SPSL) through September 30, 2022.  Employers with more than 25 employees are expected to comply with the new requirements starting February 19, 2022, so it is critical to act now.

Eligible Employees:  An employee is eligible for SPSL if the employee makes an oral or written request for time off and is unable to work or telework for one of the reasons listed below.  The employee:

  • is subject to a quarantine or isolation period related to COVID-19 as defined by an order or guidelines of the State Department of Public Health, the CDC, or a local health officer with jurisdiction over the workplace;
  • has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19;
  • is attending an appointment for themselves or a family member to receive a vaccine or booster for protection against contracting COVID-19;
  • is experiencing symptoms or caring for a family member experiencing symptoms related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework;
  • is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  • is caring for a family member who is subject to a quarantine or isolation order or guidelines, or who has been advised to self-quarantine by a healthcare provider; or
  • is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19.

Amount of Leave:  Full-time employees are eligible for up to 40 hours of SPSL for the reasons stated above.  Part-time employees who work a normal weekly schedule are entitled to SPSL in an amount equal to the total number of hours they are typically scheduled to work in a one-week period.  Part-time employees with variable schedules should receive SPSL that is either 1) seven times the average number of hours worked each day in the preceding six months, or 2) seven times the number of hours the employee has worked for the employer if the employee has worked for the employer for less than six months but more than seven days.  Employees who have worked seven days or fewer can expect to receive SPSL equal to the total number of hours they have worked for the employer.

Additional SPSL:  Employees are also entitled to an additional 40 hours of SPSL if they or their family member for whom they are providing care tests positive for COVID-19.  This brings the total available hours of SPSL to 80 hours for full-time employees.  The additional SPSL should be pro-rated for part-time employees per the calculations stated above.

Employers may require employees who test positive for COVID-19 to submit to a diagnostic test on or after the 5th day of the initial positive test and to provide documentation of the result.  If the employer chooses to require a test, the test must be made available at no cost to the employee.

Employers may also require employees to provide documentation of a family member’s test result before paying out the additional SPSL.  Employers are under no obligation to pay out the additional SPSL if the employee refuses to provide documentation either for themselves or a family member.

Limitations:  Employers cannot require employees to exhaust any other type of paid leave before using SPSL.  However, employers may limit the use of SPSL to a total of 24 hours for reasons related to obtaining or recovering from each vaccine or booster unless the employee provides verification from a health care provider that the employee or family member is continuing to experience symptoms related to a vaccine or booster.

NOTE:  The SPSL requirement does not relieve employers of the CAL/OSHA requirement to maintain the wages of employees who are excluded from the workplace because of a workplace exposure to COVID-19.  An employer may not require an employee to exhaust their SPSL before satisfying the CAL/OSHA exclusion pay requirement.

Retroactivity:  SB 114 is retroactive to January 1, 2022, meaning that an employee must be paid SPSL for any time previously taken off work for the reasons above and have their vacation and California paid sick leave balances replenished (if vacation or sick leave was previously applied to the absence).  The retroactive payment must be paid on or before the payday for the next full pay period after the employee makes the request for retroactive SPSL and should be reflected on the employee’s wage statement.  SPSL is in addition to any paid sick leave already required under California law, but employers who provided special COVID-related sick leave benefits to employees after January 1, 2022, in amounts equal to or greater than what SB 114 requires may credit that pay towards this obligation.

Pay Amount:  As under prior law, employees must be paid at their regular rate of pay up to a maximum of $511 per day, not to exceed $5,110, but SB 114 makes calculating the regular rate of pay easier than its predecessors.  SPSL for non-exempt employees must be calculated using either (i) the employee’s regular rate of pay during the workweek in which they take the leave regardless of whether they worked overtime that week, or (ii) by dividing the total wages, including overtime, by the total hours worked in the past 90 days of employment.  SPSL pay for exempt employees should be calculated in the same manner as the employer uses to calculate wages for other forms of paid leave.

Notice:  Within seven days of the law’s enactment, the Labor Commissioner will publish a notice that employers are required to post or provide to employees.  For employees who do not frequent the workplace, the notice may be e-mailed.

Paystubs:  Prior SPSL law required employers to list the amount of available SPSL on wage statements or in a separate writing.  Under the new law, employers only need to list the amount of leave that is used.  If an employee has not yet used any SPSL, their statement must list “zero.”

Tax Credit & Recordkeeping:  Although the Governor also signed SB 113 yesterday, which provides for a variety of tax credits and relief to businesses in certain circumstances, there does not appear to be a specific tax credit to neutralize the cost of paying out SPSL.  Even so, we recommend seeking advice from your tax advisor on whether the benefits of SB 113 apply to your business.  It is also still very important to keep good records of SPSL use and to preserve them for at least three years as required by law.

Firefighters and In-Home Service Providers:  SB 114 contains different rules for these categories of workers.  If you have employees who fit these descriptions, contact an SMT employment law attorney for more information.

Compliance Deadline:
Employers covered under SB 114 must comply within 10 days of its enactment, so it is important to act quickly to comply with the new law’s notification, paystub and paid sick leave requirements.

If you have questions or need help navigating the new California SPSL law, please contact an SMT employment law attorney at info@smlaw.com.

Kari J. Brown

CAL/OSHA Updates Its Model COVID Prevention Plan

Under the CAL/OSHA Emergency Temporary Standards (ETS), all California employers are required to develop and implement a written COVID Protection Plan (CPP) that contains business-specific information on topics ranging from training on personal protective equipment to identifying safety hazards in the workplace.  To assist employers with this obligation, CAL/OSHA made available a Model CPP template on their website back in late 2020.  The Model CPP was recently updated on January 14, 2022 to reflect changes to the ETS that went into effect in January.  The template can be found here.

If you have a CPP currently in place, please take the time to compare the Model CPP against your current plan to ensure it is compliant.  If you haven’t reached this item on your to do list, we recommend utilizing the Model CPP as a starting point. As always, SMT’s employment attorneys are here to assist you with this process.

Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | January 18, 2022

CDPH Requires Health Care Workers to Receive Booster Dose by February 1, 2022

A recent California Department of Public Health (CDPH) order requires health care workers to receive a COVID-19 booster vaccination by February 1, 2022.  The Order is based on a finding that current vaccine requirements are not proving sufficient in health care settings to prevent transmission of the more transmissible Omicron variant.  The Order applies to the following health care facilities:

  • General Acute Care Hospitals
  • Skilled Nursing Facilities (including Subacute Facilities)
  • Intermediate Care Facilities
  • Acute Psychiatric Hospitals
  • Adult Day Health Care Centers
  • Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
  • Ambulatory Surgery Centers
  • Chemical Dependency Recovery Hospitals
  • Clinics & Doctor Offices (including behavioral health, surgical)
  • Congregate Living Health Facilities
  • Dialysis Centers
  • Hospice Facilities
  • Pediatric Day Health and Respite Care Facilities
  • Residential Substance Use Treatment and Mental Health Treatment Facilities

Under the Order, health care workers must be fully vaccinated and boosted for COVID-19 as set forth in the table below.  Workers currently eligible for booster doses per the Table below must receive their booster dose by no later than February 1, 2022.  Workers not yet eligible for boosters must be in compliance no later than 15 days after the recommended timeframe above for receiving the booster dose.

COVID-19 Vaccine Primary vaccination series When to get the vaccine booster dose Which vaccine booster dose to receive
Moderna or Pfizer 1st and 2nd doses Booster dose 6 mos. after 2nd dose Any of the COVID-19 vaccines authorized in the United States may be used for the booster dose, but either Moderna or Pfizer are preferred.
Johnson and Johnson 1st dose Booster dose 2 mos. after 1st dose Any of the COVID-19 vaccines authorized in the United States may be used for the booster dose, but either Moderna or Pfizer are preferred.
World Health Organization (WHO) emergency use listing COVID-19 vaccine All recommended doses Booster dose 6 mos. after getting all recommended doses Single booster dose of Pfizer COVID-19 vaccine
A mix and match series composed of any combination of FDA-approved, FDA-authorized, or WHO-EUL COVID-19 vaccines All recommended doses Booster dose 6 mos. after getting all recommended doses Single booster dose of Pfizer COVID-19 vaccine

Workers may be exempt from the vaccination requirements only upon providing the employer with a declination form, signed by the individual, stating either of the following: (1) the worker is declining vaccination based on Religious Beliefs, or (2) the worker is excused from receiving any COVID-19 vaccine due to Qualifying Medical Reasons.

To be eligible for a Qualified Medical Reasons exemption, the worker must also provide to their employer a written statement signed by a physician, nurse practitioner, or other licensed medical professional practicing under the license of a physician stating that the individual qualifies for the exemption (but the statement should not describe the underlying medical condition or disability) and indicating the probable duration of the worker’s inability to receive the vaccine (or if the duration is unknown or permanent, so indicate).

Unvaccinated exempt employees and booster-eligible workers who have not yet received their booster must:

  1. wear a surgical mask or higher-level respirator approved by the National Institute of Occupational Safety and Health (NIOSH), such as an N95 filtering facepiece respirator, at all times while in the facility; and
  2. test twice weekly (employees in acute health care and long-term care settings) or once weekly (workers in other health care settings)

Facilities must begin testing all booster-eligible workers who have not yet received their booster by January 7, 2021.  Employers must continue testing unvaccinated employees with medical and religious exemptions as required by prior orders.  FAQs regarding the new Order can be found here.

CDPH Issues Temporary Isolation, Quarantine and Return to Work Criteria for Employees of Hospitals and Skilled Nursing Facilities

As a result of a critical staffing shortage in hospitals and skilled nursing facilities, the California Department of Public Health (CDPH) has issued temporary guidance allowing workers in hospitals and skilled nursing facilities to return to work immediately, without quarantine, isolation or testing, if they are asymptomatic after being exposed to or testing positive for COVID-19.  Such employees must wear a N95 respirator.  Facilities implementing this change must have made every attempt to bring in additional registry or contract staff and must have considered modifications to non-essential procedures.

The Guidance provides that health care workers who have been exposed to or tested positive for COVID-19 should preferably be assigned to work with COVID-19 positive patients.  However, the Guidelines acknowledge this may not always be possible in areas where facilities are experiencing extreme staffing shortages and settings such as the emergency department where a patient’s COVID-19 status is unknown.

The temporary Guidance can be found here.

At SMT, we realize the ever-changing state and federal COVID laws are complicated and have great impact on your business or organization.  Please reach out to an SMT employment attorney if we can be of help.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | January 13, 2022

US Supreme Court Blocks Biden-OSHA Mandatory Vaccine Mandate for Employers of 100 or More

Today, the United States Supreme Court blocked the Occupational Safety and Health Administration’s (OSHA) “vaccine or test” mandate to private employers of 100 or more employees.  The Court concluded that OSHA did not have the authority to impose the rule.

Note, this ruling does not affect California employers’ duty to comply with the revised California Occupational Safety and Health Administration (Cal-OSHA) Emergency Temporary Standard (ETS).  The Cal-OSHA ETS takes effect tomorrow, January 14, 2022.  For information on the Cal-OSHA ETS, see our December 23, 2021 Employment Law Bulletin.

US Supreme Court Upholds the Secretary of Health and Human Services’ Vaccine Mandate for Employees of Health Care Facilities that Participate in Medicare and Medicaid Programs

The United States Supreme Court ruled today that the Secretary of Health and Human Services properly exercised his authority in issuing a vaccine mandate for employees of health care facilities that participate in Medicare and Medicaid programs.  Employers who receive Medicare and Medicaid funding must ensure that their employees are vaccinated against COVID-19.  Weekly testing in lieu of vaccination is only available for employees with a medical or religious exemption as required by law.

At SMT, we realize the ever-changing state and federal COVID laws are complicated and have great impact on your business or organization.  Please reach out to an SMT employment attorney if we can be of help.

Lisa Ann Hilario

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | January 12, 2022

In this month’s Employment Law Bulletin we bring you our 2022 Employment Law Update Action Items.  Employers can use this handy list to help ensure their organization is in compliance with new laws that took effect in January 2022.  Please reach out to an SMT employment attorney if you have questions.  We are here to help.

2022 Employment Law Update Action Items

2022 CA Minimum Wage Increase

  • Review hourly pay rates and raise if necessary
  • Review exempt EE salaries and raise if necessary
  • Review commissioned EE compensation to determine if they still meet the threshold
  • Analyze any formula based on new MW
  • Make sure you have the current CA MW poster

2022 City Minimum Wage Ordinances

  • If you have EEs who work any hours in a city with a MW ordinance, check to see if they fit the definition of EE such that the MW ordinance applies to them
  • Review hourly pay rates and raise if necessary (or simplify?)
  • Make sure you have the current MW poster (for each city where you have EEs)

Sub-minimum Wages for Individuals with Disabilities

  • Increase sub-minimum wage earners to MW; or
  • Review SB 639 to make sure you can meet license renewal requirements, but plan for MW in the future

Overtime for Agricultural Workers Act of 2016

  • ERs with > 25 EEs:  implement new 8/day; 40/week OT standard now
  • ERs with 1-25 EEs: implement new 9.5/day, 55/week OT standard now and plan for future changes
  • The law is triggered by ER size, so pay attention to fluctuation in EE counts and apply the correct OT rule
  • Review labor demands and costs and start planning for future changes

Rest/Meal Premiums-RROP (Non-exempt EEs only)

  • Review compensation packages for non-exempt EEs
  • Evaluate RROP issues for break premium pay, overtime, sick leave
  • Check payroll system programming
  • Consider effect on RROP before adopting “hourly plus” compensation plans

2022 IRS Mileage Rate

  • Ensure EEs using personal vehicles for business are being properly reimbursed for business mileage
  • Inform your payroll/finance department of the mileage rate change so EEs are properly reimbursed

CalSavers

  • If you do not offer a retirement plan and you have 5 or more EEs
    • Register with CalSavers
    • Issue required notices to EEs
    • Facilitate EE deductions

Independent Contractors

  • Analyze where this applies to your business/organization
  • Review accounts payable records and identify anyone paid on 1099 basis
  • Review existing IKor Agreements

Prevent Wage Theft Claims

  • Provide wage and hour training for managers and supervisors in payroll, HR, and operations on the primary wage and hour issues
  • Remind managers and supervisors that EEs must not work off the clock, and meal and rest breaks must be provided
  • Train EEs on time-keeping issues upon hire and on an ongoing basis
  • Obtain signed acknowledgements of policies and agreements to immediately report any complaints about wage and hour issues
  • Evaluate timekeeping system
  • Establish method of complaint for wage and hour violations
  • Audit timesheets

Electronic Delivery of Workplace Notices

  • For EEs working remotely or in locations where postings cannot be displayed
    • Email postings
    • Print and save email and attachments in EE personnel files
    • Ensure postings are also in the workplace

California Family Rights Act (CFRA)

  • Update Employee Handbook/policies
  • Update CFRA leave of absence request forms
  • Update Notice of Eligibility & Rights and Responsibilities
  • Be sure you are using CA forms; not federal FMLA forms
  • Watch for updated CFRA pamphlet

Restrictions on Nondisclosure Provisions

  • Locate all ER agreements, policies, etc. that have any form of nondisclosure or nondisparagement clause
  • Review all agreements and consult counsel about revisions

Severance Agreements

  • Review and revise severance/separation agreements to comply with the new law

OSHA & CAL/OSHA COVID-19 ETS

  • Prepare OSHA vaccination & testing plan, if applicable
  • Consider preparing vaccination & testing plan in the event that the Supreme Court affirms the federal OSHA mandate and CAL/OSHA adopts
  • Create COVID-19 Protection Plan (CPP) or supplement current IIPP
  • Draft/Obtain Notices to communicate required information
  • Develop protocols to ensure compliance with short deadlines

Mandated COVID-19 Reporting

  • Be prepared to quickly notify EEs, IKors, ERs of subcontractors, EE representatives, the public health department and your worker’s compensation carrier as required
  • Contact SMT to develop protocols and train staff on how to act quickly when notified of a positive test result

Lisa Ann Hilario and Kari J. Brown

No Se Habla Español?

SMT’s employment attorneys can provide your company with employment policies, forms and employee disciplinary documentation in Spanish. Providing such important information to employees in the language they understand is critical to employee performance, providing a welcoming diverse work environment, and protecting your company against employment claims. Contact an SMT attorney today to get started.

Spaulding McCullough & Tansil LLP
Employment Law Group

Lisa Ann Hilario | Kari Brown

Trust and Estate Bulletin | December 27, 2021

Question: When was the last time you checked your beneficiary designations on your Retirement Accounts?

Changes in the tax laws in recent years have made revisiting your beneficiary designations something that should be done more regularly.  Not only do you want to be sure those designations are consistent with your overall estate planning wishes, it is important to confirm that your designations dovetail with the rest of your estate plan and meet the requirements of the ever-changing tax rules.

For example, the SECURE Act (effective January 2020), changed the rules requiring distributions from retirement accounts to a non-spouse beneficiary. Inherited IRA distributions generally must now be taken within 10 years.  If you have named a trust or sub-trust as a beneficiary of a retirement plan, you may want to modify the language of your trust to take into account this new “10-year rule.”  That is because the changed law alters what may seem to be the “optimal” payout of retirement plan benefits to a beneficiary.  Modification may also be necessary to avoid negative tax consequences that could result when a non-person (entity) is, or could be, a recipient of IRA distributions.  A review of your estate plan, including beneficiary designations, by your attorney will help determine if any changes or updates should be made as a result of the changes in the applicable tax law.

Other changes in circumstances warrant revisiting of your beneficiary designations, such as a child having outgrown the need for a sub-trust for his or her benefit.  For these reasons, we want to encourage you to contact your estate planning attorney to discuss whether any updates to your estate plan need to be made.

Spaulding McCullough & Tansil LLP
SMT Estate Planning Team

Albert G. Handelman | Kevin J. McCullough | Carmen D. Sinigiani | Barbara D. Gallagher | Mark A. Miller | Candice L. Raposo | Ashlee M. Hellman