Employment Law Bulletin | August 2, 2021

Sonoma County Public Health Officer Orders “Masks Back On” Indoors Regardless of Vaccination Status

Today, the Sonoma County Public Health Officer issued Order C19-25 requiring all individuals to wear masks covering the mouth and nose, regardless of vaccination status, in indoor public settings.  The mandate takes effect on August 3, 2021, at 12:01 a.m.

The Order covers all indoor public settings, venues, gatherings, and workplaces, including, but not limited to: offices, retail stores, restaurants, bars, theaters, family entertainment centers, conference centers, schools, daycares, and State and local government offices serving the public.

The Order requires businesses to:

  • require all employees, contractors, visitors, and patrons to wear face coverings for all indoor settings, regardless of their vaccination status; and
  • post clearly visible and easy-to-read signage at all entry points for indoor settings to communicate the masking requirements to all patrons.

Masks are not required for those persons:

  • working alone in a closed office or room;
  • actively eating and/or drinking;
  • swimming or showering in a fitness facility;
  • obtaining a medical or cosmetic service involving the head or face for which temporary removal of the face covering is necessary to perform the service; and
  • specifically exempted from wearing face coverings pursuant to other California Department of Public Health guidance.

Public Health Officers in Other Northern California Areas Issue Similar Mask Orders

Public Health Officers in the following counties also issued orders requiring individuals to wear masks indoors in public places regardless of vaccination status:  Alameda, Contra Costa, Marin, San Francisco, San Mateo, and the City of Berkeley.  Each agency’s order can be found by clicking on the links.

Contact an SMT employment law attorney if you have questions about these new requirements or if we can be of assistance with any other workplace issues.

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

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | July 29, 2021

State Public Health Officer Orders Some Employers to Verify Employee Vaccination Status and Conduct Regular Testing of Unvaccinated Employees

On July 26, 2021, the California Public Health Officer ordered hospitals, skilled nursing facilities, high-risk congregate settings and other health care settings to verify Covered Workers’ vaccination status and regularly test those who are not “fully vaccinated.”  An individual is considered “fully vaccinated” for COVID-19 two weeks or more after they have received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna or vaccine authorized by the World Health Organization), or two weeks or more after they have received as single-dose injection (Johnson & Johnson/Janssen).

The Order for health care workers and congregate facilities will take effect on August 9, and health care facilities will have until August 23 to come into full compliance.

Covered Facilities

The New Order applies to the following Covered Facilities:

Acute Health Care and Long-Term Care Settings

  • General Acute Care Hospitals
  • Skilled Nursing Facilities (including Subacute Facilities)
  • Intermediate Care Facilities

High-Risk Congregate Settings

  • Adult and Senior Care Facilities
  • Homeless Shelters
  • State and Local Correctional Facilities and Detention Centers

Other Health Care Settings

  • Acute Psychiatric Hospitals
  • Adult Day Health Care Centers
  • Adult Day Programs Licensed by the California Department of Social Services
  • 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
  • Dental Offices
  • Dialysis Centers
  • Hospice Facilities
  • Pediatric Day Health and Respite Care Facilities
  • Residential Substance Use Treatment and Mental Health Treatment Facilities

Covered Workers

“Covered Workers” include all paid and unpaid persons serving in health care, other health care or congregate settings who have the potential for direct or indirect exposure to patients/clients/residents or SARS-CoV-2 airborne aerosols.  Covered Workers include, but are not limited to:

  • nurses, nursing assistants, physicians, technicians, therapists, phlebotomists, pharmacists, students and trainees;
  • contractual staff not employed by the health care facility; and
  • persons not directly involved in patient care, but who could be exposed to infectious agents that can be transmitted in the health care setting (e.g., clerical, dietary, environmental services, laundry, security, engineering and facilities management, administrative, billing, and volunteer personnel).

Verification of Vaccination Status

Covered Facilities must verify the vaccine status of Covered Workers, which includes:

  • requiring workers to provide documentary proof of vaccination – employee attestation is not sufficient (the accepted types of documentation are included in the Order at section II.A.)
  • having a plan in place to track verified worker vaccination status (records must be available upon request to the local health jurisdiction)
  • workers who are not fully vaccinated, or for whom vaccination status is unknown or documentation is not provided, must be considered unvaccinated.

COVID-19 Testing Requirements

The Order requires Covered Facilities to test all Covered Workers who are not fully vaccinated as set out below.  (Diagnostic testing of asymptomatic fully vaccinated workers is not currently required).

  • Acute Health Care and Long-Term Care Settings:  at least twice weekly
  • High-Risk Congregate Settings and Other Health Care Settings:  at least once weekly

Covered Workers who have not been fully vaccinated must be tested even if they have a previous history of COVID-19, or a previous positive antibody test for COVID-19.

Covered Facilities should have a plan in place for tracking test results, conducting workplace contact tracing, and must report positive results to local public health departments.

Respirator and Mask Requirements

All Facilities Covered by the Order

Covered Facilities must strictly adhere to current California Department of Public Health (CDPH) Masking Guidance.  To the extent they are already applicable, facilities must also continue to adhere to Cal/OSHA’s standards for Aerosol Transmissible Diseases (ATD), which requires respirator use in areas where suspected and confirmed COVID-19 cases may be present, and the Emergency Temporary Standards which require that all unvaccinated workers be provided a respirator upon request.

Acute Health Care and Long-Term Care Settings

In addition to respirators required under the ATD, facilities must provide respirators to all unvaccinated and incompletely vaccinated workers who work in indoor work settings where (1) care is provided to patients or residents, or (2) to which patients or residents have access for any purpose. Workers are strongly encouraged to wear respirators in all such settings. The facility must provide the respirators at no cost, and workers must be instructed how to properly wear the respirator and how to perform a seal check according to the manufacturer’s instructions.

High-Risk Congregate Settings and Other Health Care Settings

Where the ATD does not require the use of respirators, Covered Facilities must provide all unvaccinated and incompletely vaccinated workers with FDA-cleared surgical masks. Workers are required to wear FDA-cleared surgical masks in indoor settings anywhere they are working with another person.

State Public Health Officer Issues Updated Mask Guidance

On July 28, 2021, the State Public Health Officer issued updated Mask Guidelines.  The new updates:

  • add recommendations for universal masking indoors statewide
  • add Adult and Senior Care Facilities to settings where all individuals must wear masks indoors
  • reference the new requirements for unvaccinated workers in the State Health Officer’s July 26, 2021 Order

New Mask and Testing Recommendations for Vaccinated Individuals

Earlier this week, the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health recommended that fully vaccinated individuals return to wearing mask indoors when in public for those in areas of substantial or high transmission.  The CDC website has a COVID-19 Data Tracker where people can check the transmission levels.  Currently, Sonoma, Marin, Napa and most other California counties are in “substantial or high transmission” areas.

The CDC now also recommends that fully vaccinated people who have a known exposure to someone with suspected or confirmed COVID-19 be tested 3-5 days after exposure, and wear a mask in public indoor settings for 14 days or until they receive a negative test result.

Contact an SMT employment law attorney if you have questions about these new requirements or if we can be of assistance with any other workplace issues.

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

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | June 18, 2021

New Cal-OSHA Emergency Temporary Standards Take Effect Immediately for California Workplaces

As we predicted in our June 11 bulletin, Cal-OSHA appears to have worked out the kinks in its prior version of the revised Emergency Temporary Standards (“ETS”) and the Cal-OSHA Board has given the new regulations its stamp of approval.  Although the new and improved ETS were expected to take effect on June 28, 2021, Governor Newsom issued an Executive Order right after the Cal-OSHA meeting on June 17, 2021 making the ETS enforceable immediately.  Cal-OSHA’s updated FAQs on the regulations, issued in anticipation of the approval, can be found here.

Below is an updated chart that reflects the new changes in workplace requirements provided for in the new ETS.  If you are interested in learning more about the new ETS requirements and how they impact your business, we recommend that you contact an SMT employment law attorney.

Vaccination Documentation Fully vaccinated employees are no longer required to wear face coverings so long as the employer has documented the employee’s vaccination status.  Employees who refuse to state their vaccination status must be treated as unvaccinated.

The ETS fails to provide guidance on how to document vaccination status, but Cal-OSHA has issued the following approved methods in its FAQs:

  • Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy.
  • Employees provide proof of vaccination.  The employer maintains a record of the employees who presented proof, but not the vaccine record itself.
  • Employees self-attest to vaccination status and employer maintains a record of who self-attests.

Note: Nothing in the proposed revised ETS prevents an employer from requiring all employees to wear a face covering instead of having a documentation process.

Capacity Limitations and Ventilation Systems No specific capacity restrictions, however capacity must be limited if necessary to comply with physical distancing requirements.

Employers must now evaluate ventilation systems to maximize outdoor air and increase filtrations efficiency, and evaluate the use of additional air cleaning systems.

Physical Distancing No physical distancing or barrier requirements regardless of employee vaccination status with the following exceptions:

  • Employers must evaluate whether it is necessary to implement physical distancing and barriers during an “outbreak” (3 or more cases in an exposed group of employees)
  • Employers must implement physical distancing and barriers during a “major outbreak” (20 or more cases in an exposed group of employees)
  • An unvaccinated employee is not able to wear a required face covering and has not been tested weekly for COVID-19
Face Coverings NOT REQUIRED:

Fully vaccinated employees are no longer required to wear face coverings indoors, EXCEPT when there is an outbreak, in which case all employees are required to wear face coverings indoors and outdoors when a distance of six feet cannot be maintained.

No face coverings required outdoors, except in an outbreak, regardless of vaccination status.  However, employers are required to communicate that face coverings are recommended for unvaccinated persons outdoors where six feet of physical distancing cannot be maintained.

REQUIRED:

Unvaccinated employees are required to wear face coverings indoors and in vehicles, with the following limited exceptions:

  • the employee is in a room alone
  • the employee is eating and drinking at least six feet apart from other employees
  • when an accommodation is required
  • when job duties make a face covering infeasible or create a hazard

Face coverings are also required for employees working in public transit, K-12 educational facilities, health care and long-term care settings, correctional and detention facilities, and shelters (homeless or emergency shelters and cooling centers) for as long as the California Department of Health requires face coverings in those industries.

Employers must provide face coverings to unvaccinated persons and make them available to vaccinated persons upon request.

Respirators An employer must provide respirators, such as N95 masks, in two scenarios:

  • to any unvaccinated employee who works with others indoors or in a vehicle and who requests one; and
  • where there is a major outbreak, to any employees in the exposed group for voluntary use regardless of vaccination status. The respirator must be the right size, and the employee must receive basic instruction on how to get a good “seal,” or fit.

New Definitions

Cal-OSHA has redefined prior ETS definitions and created a few new terms in an effort to clarify the ambiguities of the ETS and address new developments in the COVID-19 pandemic as it relates to the workplace.  For example, employers now have better guidance on what it means to have a close contact with COVID-19 and who is considered fully vaccinated.  The definitions can be found in the initial section of the new ETS regulations.

New Testing Requirements

According to the ETS regulations and Cal-OSHA FAQs, Employers must continue to offer COVID-19 testing to employees during paid time in the following situations:

  • Symptomatic unvaccinated employees, regardless of whether there is a known exposure.  This is a new requirement.
  • Unvaccinated employees after a close contact.
  • Vaccinated employees after an exposure if they develop symptoms.
  • Unvaccinated employees in an outbreak.
  • All employees in a major outbreak.

Unless there is a major outbreak, an employer does not have to offer testing after a close contact if the employee:

  • was fully-vaccinated before the close contact and does not have symptoms;
  • had COVID-19, returned to work after the appropriate waiting period (currently 10 days and 24 hours with no fever, if one developed) and remained symptom-free since that time;
  • had COVID-19 and remained free of COVID-19 symptoms for 90 days after the initial onset of COVID-19 symptoms; or
  • had COVID-19 and never developed symptoms for 90 days after the first positive test.

Notice and Investigation Obligations Continue

Employers familiar with the prior ETS know that one of the more onerous obligations was the one-day notice that was required to be delivered to potentially exposed employees, subcontractors, and independent contractors when a COVID-19 exposure occurred in the workplace.  This notice piggybacks on the requirements of AB 685, which remains in effect.  The new ETS makes clear that the notices and one-day turnaround time are still required.  A new development with respect to the notices is that if an employer “should reasonably know that an employee has not received the notice, or has limited literacy in the language used in the notice, the employer shall provide verbal notice, as soon as practicable, in a language understandable by the employee.”

If SMT previously created an AB 685/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 new 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.

Excluding Workers from the Workplace

Under the new ETS (and the California Department of Health guidelines), fully-vaccinated employees no longer need to be excluded following a COVID-19 exposure in the workplace so long as they are not experiencing any COVID-related symptoms.  However, symptomatic employees, those who are diagnosed with or test positive for COVID-19, and employees who are otherwise ordered to isolate by a local or state health official, must continue to be excluded.

Exclusion Pay Refined

Under the revised ETS, employers must continue to ensure that excluded employees receive their full wages and maintain all benefits as if the employee had not been excluded from work.  However, the new ETS no longer requires that the employee be “otherwise able to work,” which means that excluded employees who are not receiving disability or worker’s compensation benefits are entitled to exclusion pay regardless of their ability to perform work.  Exclusion pay must be paid no later than the next regular pay date after the pay period(s) in which the employee is excluded.  If an employer denies exclusion pay based on an exception identified in the ETS, the employer must inform the employee that the pay is denied and the specific exception that applies.  The ETS now also provides that employees may seek recovery through procedures available in existing law, which could result in significant exposure for employers who are out of compliance.

Employer Provided Housing and Transportation

The new ETS makes clear that the restrictions related to employer-provided transportation apply when employees are travelling to and from work, different jobsites, delivery sites, buildings, stores, facilities or fields.  Employees who must share vehicles should also be assigned to distinct groups that are kept separate to the extent feasible.  However, the other physical distancing requirements have been eliminated in the employer-provided housing and transportation regulations and, where all employees are vaccinated, employers are exempt from the regulations altogether.

Conclusion

Although improved, these regulations are still cumbersome and challenging for California employers and the penalties for non-compliance are stiff.  If you have questions about how to comply with the new requirements, do not hesitate to contact an SMT Employment attorney.  We are here to help you.

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

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | June 11, 2021

To Mask or Not to Mask – What Rules Apply to the Workplace?

Californians have been anxiously awaiting the arrival of June 15 when Governor Newsom has promised to “fully reopen the economy” and a return to “usual operations” by eliminating the colored tiers and face covering mandates, and lifting capacity and distancing requirements for most businesses and activities.

In the last several days, federal and state government agencies have issued a flurry of conflicting regulations and guidance leaving everyone confused and wondering, what does it all mean?  The answer depends on who’s asking and what day it is.  This article will focus on what we know today, but unfortunately, that is subject to change.

Rules for the General Public

For the general public, the California Department of Public Health’s (CDPH) Guidance (found here) will apply from June 15 until at least October 1, 2021:

Vaccine Verification/
Negative Testing
Required for indoor mega events (5,000+ people)
Recommended for outdoor mega events (10,000+ people)
Capacity Limitations No restrictions
Physical Distancing No restrictions for attendees, customers and guests (Note: no reference to workers employed by the business)
Face Coverings Follow current CDPH Guidance for Face Coverings*
Travelers Follow CDC recommendations and CDPH Travel Advisory

*The most recent CDPH Guidance, issued on June 9, 2021 (found here)  has two sets of recommendations – guidance effective before June 15, and guidance effective after June 15, 2021.  After June 15, fully vaccinated individuals are not required to wear masks except in limited settings (on public transit; in schools, childcare and other youth settings; healthcare settings; detention and correctional facilities; homeless shelters, emergency shelters and cooling centers).  Individuals who are not fully vaccinated would be required to wear masks in all indoor public settings and businesses.  “Fully vaccinated” is defined as having received all required COVID-19 doses and completing a 14-day post-vaccination period.

The County of Sonoma has announced that it will follow the CDPH guidance for face coverings, but businesses must follow State face covering guidance, industry sector guidance, and Cal OSHA regulations for employees.  While the County of Sonoma is not issuing its own local ordinance on the subject, other Counties may develop their own guidelines that are more restrictive than the federal and state guidelines. Check your county’s department of public health to see if any local ordinances apply to your business.

Rules for the Workplace

While we can expect a return to normal for the general public and our personal lives on June 15, the workplace rules businesses must follow for their employees are far more restrictive, at least for now.  The California Occupational Safety and Health Administration Emergency Temporary Standards (“ETS”) applies to all California workplaces.  The hitch – the ETS currently in effect was issued in November 2020, long before vaccines became available.  Although Cal-OSHA’s recent proposed updates to the ETS, which reflected the availability of vaccines, were initially approved, they were withdrawn on June 9.  Cal-OSHA has returned to the drawing board to draft a proposed ETS that is more consistent with the CDPH Guidelines issued on June 9, 2021.

For now, the November 2020 ETS face covering and other workplace requirements (outlined below) apply to the workplace until June 27, 2021, when an updated ETS that takes into account vaccination status is anticipated to go into effect.  At the time of this publication, the proposal is in flux, but is due to be issued before the June 17, 2021 Cal-OSHA Standards Board meeting.  If approved at the meeting, the new ETS will go to the Office of Administrative Law for approval, with the earliest possible effective date being June 27, 2021.

Vaccine Verification/
Negative Testing
Not addressed; no effect on the workplace
Capacity Limitations No specific restrictions, however capacity must be limited if necessary to comply with social distancing requirements.
Physical Distancing Employees must maintain six feet of distance at all times regardless of vaccination status; solid separation barriers are required at fixed work locations where six feet of physical distancing is not possible
Face Coverings Must be worn in the workplace regardless of vaccination status (subject to very limited restrictions)

We’ll be monitoring Cal-OSHA proceedings and announce the new ETS when it becomes effective.  In the meantime, we recommend that you prepare your employees to continue working with face coverings and physical distancing through the end of this month.

If you need help determining which rules apply to your business or how to implement them, please reach out to an SMT employment law attorney. We’re 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

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | May 13, 2021

CalSavers Registration Deadline Coming Soon for Employers with 50 or More Employees

CalSavers is a state-run Roth IRA program for California-based, private-sector workers whose employers do not provide a retirement savings plan.  Employers of five or more California-based employees that do not offer employees their own qualified retirement plan, must register with CalSavers and facilitate their employees’ access to the state-run retirement savings program.  The program began in July 2019, but the deadline for employers to register with CalSavers varies according to the size of the employer:

  • more than 100 employees:      September 30, 2020 (extended from June 30, 2020)
  • 50-99 employees                     June 30, 2021
  • 5-49 employees:                      June 30, 2022

CalSavers does not apply to employers who already offer an employer-sponsored qualified retirement plan.  Qualified retirement plans include:

  • 403(a) – Qualified Annuity Plan or 403(b) Tax-Sheltered Annuity Plan
  • 408(k) – Simplified Employee Pension (SEP) plans
  • 408(p) – Savings Incentive Match Plan for Employees of Small Employers (SIMPLE) IRA Plan
  • 401(a) – Qualified Plan (including profit-sharing plans and defined benefit plans)
  • 401(k) plans (including multiple employer plans or pooled employer plans)
  • payroll deduction IRAs with automatic enrollment

Employers do not contribute financially to the CalSavers plan, but must facilitate their employees’ access to the Program.  Employers must:

  • register for the CalSavers Program at www.calsavers.com;
  • provide basic employee roster information to the Program for eligible employees (name, date of birth, Social Security Number or ITIN, and contact information); and
  • facilitate employee contributions by payroll deduction each pay cycle and send contributions to CalSavers.

Employers who fail to comply will receive a notice of noncompliance.  If noncompliance extends 90 days or more after the notice, employers are subject to a penalty of $250 per eligible employee.  An additional penalty of $500 per eligible employee may be imposed if the employer is found to be in noncompliance 180 days or more after the notice.

More information about CalSavers, including frequently asked questions about the Program, can be found at www.calsavers.com.

Please reach out to an SMT employment attorney if you have questions about CalSavers or we can assist you with any employment issue.

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

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | May 3, 2021

New SB 95 Supplemental Paid Sick Leave Guidance and Interactive Eligibility Tool Now Available from Labor Commissioner

In an effort to clarify some of the murkier aspects of SB 95’s COVID-19 Supplemental Paid Sick Leave (“SPSL”), the Labor Commissioner’s Office recently released updates to its Frequently Asked Questions (FAQs) website that employers might find helpful.

In particular, the FAQs now make clear that SPSL for childcare purposes “means a child’s school or place of care has been closed after concern that a person who had been present on the school or daycare premises on or after January 1, 2021, was exposed to, or had contracted, COVID-19.”  Under the 2020 law, SPSL could be used when a school or daycare provider was closed due to COVID-19, regardless of whether any exposure or infection had occurred onsite.  Under SB 95, the eligibility requirement is much more narrow.

Employers should also note that SPSL must be provided to eligible employees immediately upon an oral or written request.  In addition, employers are prohibited from denying a request for SPSL based on a lack of medical documentation alone.  However, the Labor Commissioner indicates that where an employer has a good reason to question the validity of the request, it may be justified in asking for additional documentation supporting the request before paying for the leave.  Employers considering this step should consult with an SMT employment law attorney before refusing to pay for the SPSL.

The Labor Commissioner’s FAQ website can be found here.

For more information regarding the requirements of SB 95’s Supplemental Paid Sick Leave, see our March 23 and March 24 bulletins.

SPSL Interactive Eligibility Tool
The Labor Commissioner’s office has also released a new interactive tool that is intended to assist employers and employees in determining eligibility for SPSL.  The tool, found here, is easy to use, anonymous and can be accessed in both English and Spanish.

Employers should be aware that the tool’s website, as well as the tool itself, offer detailed information for employees on how to file a claim if they believe SPSL has been wrongfully denied.  The website also contains a link redirecting workers who might be wrongly classified as independent contractors (and therefore ineligible for SPSL) to additional information regarding employer liability and risk related to their misclassified status.  Employers concerned with compliance in these areas should contact an SMT employment law attorney right away.

Although the tool accurately applies the requirements of SB 95 to a user’s answers, it is important for employers to consider applicable local ordinances that might have additional and/or different requirements before making decisions on how to apply SPSL to their business.

Another Factor to Consider for Mandatory Vaccination Programs

Over the past several months, we have discussed the various pros and cons of mandatory vaccination programs with many of our clients.  Federal OSHA has added an additional factor that must be taken into consideration: Employers who require vaccinations as a condition of employment must now keep a record of all adverse reactions if the reaction is:  (1) work-related; (2) a new case; and (3) meets one or more of the general recording criteria in defined by OSHA regulations.

According to the new FAQS recently released by OSHA, OSHA could enforce the recording requirement on employers who recommend vaccination to employees when the above three factors are met, but it is declining to do so at this time.  However, in order to be truly relieved of the recording obligation, an employee’s choice to be vaccinated must be truly voluntary.  The acceptance or refusal of the vaccine cannot affect an employee’s performance rating or professional achievement and “[a]n employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice.”  If employees fear repercussion from choosing not to be vaccinated, OSHA suggests that the employee’s choice is not truly voluntary.

OSHA’s FAQs can be found here.

Need help determining how this new guidance applies to your business?  Contact an SMT employment law attorney for help.

Kari 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

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | April 23, 2021

New California Law Imposes Employee Recall Rights on Some Employers

Senate Bill 93 (SB 93) requires some employers to offer jobs to laid-off employees if jobs for which they are qualified become available after April 16, 2021.  The law will remain in effect until December 31, 2024.  The text of SB 93 can be found here:  https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220SB93.

SB 93 applies to the following Covered Employers (“Employers”) regardless of their head count:

  • Hotels (residential buildings designated or used for lodging and other related services for the public, and containing 50 or more guest rooms, or suites of rooms);
  • Private Clubs (private, membership-based businesses or nonprofit organizations that operate a building or complex of buildings containing at least 50 guest rooms or suites of rooms that are offered as overnight lodging to members);
  • Event Centers (publicly or privately owned structures of more than 50,000 square feet or 1,000 seats that are used for the purpose of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers, as well as contracted, leased or sublet premises connected to or operated in conjunction with the event center’s purpose, such as retail stores, restaurants, bars and parking facilities);
  • Airport Hospitality Operations and Airport Service Providers (see SB 93 for definitions); and
  • Providers of Building Services to Offices, Retail, or other Commercial Buildings (janitorial, building maintenance and security services).

SB 93 requires Employers to follow a series of steps:

Step 1  Identify “Laid-Off Employees”:  defined as (1) those employed for 6 months or more between January 1, 2019 and January 1, 2020; and (2) most recently separated from active service for a reason related to the COVID-19 pandemic (a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, nondisciplinary reason due to the COVID-19 pandemic).  “Laid-Off Employees” also include employees hired from temporary service providers.

Step 2  Recall Notice and Offer of Employment to Laid-Off Employees:  Within 5 business days of a job position becoming available after April 16, 2021, Employers must issue a written notice to Laid-Off Employees who are qualified for the position.  A Laid-Off Employee is considered qualified for a position if the employee held the same or similar position at the time of the employee’s most recent layoff.

  • Contents of Notice:  The notice must contain (1) information about all job positions that become available for which the Laid-Off Employees are qualified; and (2) an offer of employment.  If there are more qualified Laid-Off Employees than open positions, Employers must use a preference system and offer the position to the Laid-Off Employee with the greatest length of service based on the employee’s date of hire.  Employers may also make simultaneous, written offers of employment to Laid-Off Employees, with a final offer of employment expressly conditioned on application of the preference system.
  • Delivery of Notice:  Written notice must be delivered by hand or to the Laid-Off Employees’ last known physical address AND by email and text message (if the employer has such information).

Step 3  Notice to Laid-Off Employees Not Recalled Due to Lack of Qualifications:  If the Employer declines to recall a Laid-Off Employee on the grounds of lack of qualifications, the Employer must provide the Laid-Off Employee with a written notice within 30 days, stating the length of service of the individual hired and the reasons for the Employer’s decision not to hire the Laid-Off Employee.

Step 4  Waiting for the Response to the Job Offer:  Employers must give a Laid-Off Employee who is offered a position at least 5 business days from the date of receipt of the job offer to accept or decline.

Step 5  Record Retention Requirements:  Employers must retain records with the following information for each Laid-Off Employee for at least 3 years from the date of the written notice of layoff:

  • full legal name
  • job classification at the time of separation from employment
  • date of hire
  • last known residence address
  • last known email address
  • last known telephone number
  • a copy of all written notices regarding the layoff provided to the employee
  • all records of communications between the employer and the employee concerning offers of employment made to the employee pursuant to SB 93

SB 93 is enforced by the Labor Commissioner.  Employers who violate SB 93 can be required to rehire the Laid-Off Employee and pay front pay, back pay, lost employment benefits, civil penalties and other damages.

Note that SB 93’s definition of “Employer” includes not only the business organization itself, but also corporate directors, executives and individuals who directly or indirectly own/operate the business or who exercise control over the wages, hours, or working conditions of any employee.  “Employer” also includes successor employers.

If SB 93 applies to your business, we recommend that you compile the information listed above in Step 5 for employees laid off due to the pandemic and develop a recall plan.  SMT’s employment attorneys are available to answer your questions and to assist you in developing your recall plan and employee notice.

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

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | March 24, 2021

California Labor Commissioner Publishes Required 2021 COVID-19 Supplemental Paid Sick Leave Poster

In our March 23, 2021 Employment Law Bulletin we reported on California Senate Bill 95 (SB 95), a new law requiring some California employers to provide additional paid sick leave for employees taking time off for certain COVID-19 related reasons.  The new law has a posting requirement, but the poster had not been published when we issued our Bulletin.

The required posting is now available at https://www.dir.ca.gov/dlse/2021-COVID-19-Supplemental-Paid-Sick-Leave.pdf.  It must be posted in the workplace in an area accessible to all employees by March 29, 2021.  If employees do not report to a fixed workplace, the notice may be distributed to employees electronically.

The Labor Commissioner also published a set of frequently asked questions about the new law.  It can be found at https://www.dir.ca.gov/dlse/COVID19Resources/FAQ-for-SPSL-2021.html.

CORRECTION to March 23, 2021 Employment Law Bulletin

In our March 23, 2021 Bulletin, we reported that California Senate Bill 95 applies to employers with “25 or more employees.”  This is not correct.  The law applies to employers with more than 25 employees.  We apologize for this error.  Please contact an SMT Employment Law attorney if you have any questions.

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

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | March 23, 2021

State of California Revives, Expands and Extends COVID-19 Supplemental Paid Sick Leave – Employer Action Required Now!

On March 19, 2021, Governor Newsom approved Senate Bill 95 (SB 95), reviving an expired 2020 law that required employers to pay COVID-19 Supplemental Paid Sick Leave (SPSL).  Although SB 95 contains similar requirements to its predecessor, there are significant changes with respect to the employers it covers, who is eligible to receive SPSL, the reasons for use, and how previously paid SPSL can be used to offset an employer’s obligation.  As discussed in more detail below, employers are required to provide SPSL retroactively to January 1, 2021, and must continue to provide SPSL until the law’s expiration on September 30, 2021.

Covered Employers:  Under 2020 California law, SPSL applied to employers of 500 or more.  The new law now requires employers with more than 25 employees to provide SPSL.

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 to receive a vaccine for protection against contracting COVID-19,
  • is experiencing symptoms related to a COVID-19 vaccine 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 80 hours of SPSL.  Part-time employees who work recurring schedules are entitled to SPSL equal to the total number of hours they are typically scheduled to work in a two-week period.  Part-time employees with variable schedules should receive SPSL equal to the average number of hours worked in the preceding six months, or during the period the employee has worked for the employer.  Employees who have worked 14 days or fewer can expect to receive SPSL equal to the total number of hours they have worked for the employer.  Employers taking time off for one of the reasons listed above may not require employees to use any other paid or unpaid time off before using SPSL.

Retroactivity:  SB 95 is retroactive to January 1, 2021, meaning that an employee must be paid SPSL for any time previously taken off work for the above reasons dating back to January 1, 2021.  The retroactive payment must be paid on or before the payday for the next full pay period after the oral or written request is made.

Previously Provided Paid Leave:  Unlike many local ordinances that allow employers to credit 2020 COVID paid sick leave time against 2021 requirements, SB 95 provides employees with a new allotment of up to 80 hours of SPSL for 2021.  However, any COVID-related supplemental paid sick leave already taken in 2021 prior to the passing of the law, may be used to off-set the new SPSL requirement.  Regular paid sick leave already required by state law cannot be used as a credit towards the employer’s SPSL obligation.

Pay Amount:  As under the prior law, employees must be paid at their regular rate of pay up to $511 per day, not to exceed $5,110.  SB 95 clarifies non-exempt pay stating that non-exempt employees must be paid at the highest of (i) their regular rate of pay during the workweek in which they take the leave; (ii) the total wages (not including overtime) divided by the total hours worked in the past 90 days of employment; or (iii) the state or local minimum wage.

Notice:  Within seven days of the law’s enactment, the Labor Commissioner will publish a notice of the new law 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:  Employers must also provide the employee’s available SPSL balance on wage statements or in a separate writing. For employees working variable schedules, employers may comply with this obligation by performing an initial calculation of paid leave available, and then indicate “variable” next to that calculation.  Updated calculations must be provided upon request and when the employee requests to use the leave.

Recordkeeping:  Employers must maintain records of hours worked and SPSL hours accrued and used by employees for at least three years.

Anti-Retaliation & Remedies:  The law prohibits retaliation against employees for requesting or using SPSL.  Employees who believe their rights have been violated may file an action in court or with the Labor Commissioner.

Firefighters and In-Home Care Providers:  SB 95 contains different rules for these categories of workers.  If you have employees who fit this description, contact an SMT employment law attorney for more information.

Employers covered under SB 95 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@www.smlaw.com.

Kari 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

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown

Employment Law Bulletin | March 18, 2021

California Supreme Court Rules Employers Cannot “Round” Meal Break Start and Stop Times

California employers must generally provide non-exempt (overtime eligible) employees with one 30-minute uninterrupted off-duty meal break that begins no later than the end of the fifth hour of work, and another 30-minute meal break that begins no later than the tenth hour of work.  An employer who fails to provide compliant meal breaks is obligated to pay the employee one additional hour of pay for each workday the meal break is not provided (“meal premium pay”).

Federal law is well settled that employers may apply a “rounding” policy to adjust employee time entries to the nearest pre-set time increment so long as the policy is neutral on its face, and, in application, fully compensates employees over time.  Based on this principle, many employers round work start and stop entries to the nearest 5, 10 or 15-minute increment.  California law has followed federal guidance on this issue and similarly permitted rounding of work start and stop times.  However, since meal breaks are not required by federal law, the issue of rounding meal break start and stop times remained undecided in California until last month, when the State’s Supreme Court issued its decision in Donohue v. AMN Services, LLC ruling:

  • Employees must record the actual meal break start and stop times.
  • Employers cannot “round” meal break start and stop punches to the nearest pre-set time increment.
  • Employer time records that show noncompliant meal breaks (no break, breaks less than 30 minutes, or breaks starting after the 5th or 10th hour of work) raise a rebuttable presumption that a meal period violation occurred and the employer owes the employee meal premium pay.  The employer must then present evidence to rebut the presumption and show that compliant meal breaks were provided, but the employee voluntarily chose to skip, shorten or take a late break.

In Donohue, the employer’s electronic timekeeping system was set to round all time entries to the nearest 10-minute increment.  The policy was applied consistently and was neutral on its face.  If an employee clocked in at 7:56 a.m., the time was rounded to 8:00 a.m., but if the employee clocked in at 7:49 a.m., the time was rounded to 7:45 a.m.  This type of rounding of work day start and stop times remains lawful under federal and California law, but Donahue applies a different rule in the meal period context.

The Donohue court ruled that rounding is unlawful in the meal break context because it can result in a violation of the meal break requirements.  For example, with a 10-minute rounding rule, the employee who clocks out for lunch at 11:02 a.m. and clocks in after lunch at 11:25 a.m. has received a 23-minute break, but the timekeeping system would record the times as 11:00 a.m. and 11:30 a.m. indicating that a compliant 30-minute meal break was taken, resulting in no meal premium pay.

Ok, now what to do?

  • If your employees record their time on time cards or timesheets, make sure they are writing down their actual meal break start and stop times, taking breaks at least 30-minutes long, and they do not work more than five hours (or ten hours) without starting the break.
  • If your employees record their time electronically, make sure your timekeeping system does not round meal break start and stop time entries.  If it does, remove the rounding rule from the meal break timekeeping settings.
  • Train your managers and supervisors about the meal break rules and how to enforce them.  Make sure they are “providing” employees with the opportunity to take off-duty uninterrupted meal breaks that start on time and are long enough to comply with California’s requirements.
  • Audit employee time records each pay period for missed, short, and late meal breaks and follow up with employees to find out whether they were violations or “voluntary” on the part of the employee.  Document all conversations with employees and keep documentation of all time record changes and the reasons they were made.

Implementing, enforcing and ensuring compliance with California’s meal break rules are challenging.  Contact an SMT employment attorney to get some tips and tricks for keeping your business compliant.

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

Jan Gabrielson Tansil  | Lisa Ann Hilario | Kari Brown