Employment Law Bulletin | September 2019

Emergency Legislation Extends Sexual Harassment Training Deadline

On August 30, 2019, Governor Newsom signed emergency legislation extending the new sexual harassment training compliance deadline for an additional year.  The new training compliance deadline is January 1, 2021.  This is great news for employers.
This sexual harassment training requirement was originally set to require completion of the first round of training by 1/1/2020.
As a reminder, the training law, effective 1/1/2019, requires employers with five to forty-nine employees to provide at least two hours of specific training and education regarding sexual harassment to all supervisory employees and at least one hour of training and education to all nonsupervisory employees within six months of assuming their position and once every two years thereafter. These requirements now take effect on January 1, 2021. (Government Code §12950.1)  The training law for employers of fifty or more employees remains unchanged.
This legislation in no way minimizes the importance of providing a workplace free from prohibited harassment, it just allows employers a bit of breathing room when scheduling this very important training.

Protection from Wildfire Smoke: New Regulation Imposes Obligations on Certain California Employers to Monitor Air Quality

If you are a California employer and the air quality of your workplace is likely to be affected by wildfire smoke, the requirements of a new Cal/OSHA emergency regulation may apply to you.  The regulation is somewhat unclear and provides limited guidance for employers, but here’s what we know to date.

First off, the regulation, which is in effect now through January 28, 2020, provides exemptions for workplaces that are enclosed (including vehicles) and have an air filtering system so long as all windows, doors, bays and other openings are kept closed to minimize contamination by outdoor or unfiltered air.  Firefighters engaged in wildland firefighting are also exempt.  If these exemptions apply to your workplace, you can take a breath of fresh air.  If not, keep reading.  

Cal/OSHA is requiring employers who either 1) have a workplace with a current Air Quality Index (AQI) for PM2.5 of 151 or greater or 2) anticipate that their employees will be exposed to wildfire smoke, to take certain measures to protect their staff.  These two categories create many questions for employers, the foremost of which is: What the heck is PM2.5?  

According to the regulation, PM2.5 is defined as “solid particles and liquid droplets suspended in air, known as particulate matter, with an aerodynamic diameter of 2.5 micrometers or smaller.”  In other words, the department wants employers to know how much particulate matter is in the workplace air because, at a certain level, it is harmful for humans to breathe.  
How do you know what level the PM2.5 is at?  While employers can choose to use special devices to measure the air quality themselves, the AQI for PM2.5 can actually be found quite easily on various Cal/OSHA approved websites including the EPA’s AirNow website (www.airnow.gov).   

The chart below is also a helpful tool in understanding the ranges of AQI for PM2.5, the colors on AQI maps, and the health concerns that correspond with an increase in the AQI for PM2.5 levels.

AQI for PM2.5 Levels of Health Concern/Color Indicator
0 to 50 Good
51 to 100 Moderate
101 to 150 Unhealthy for Sensitive Groups
151 to 200 Unhealthy
201 to 300 Very Unhealthy
301 to 500 Hazardous

Chart Adapted from Table 2 of Title 40 CFR, Part 58, Appendix G.  

AQI for PM2.5 must be checked or measured by employers who have affected workplaces before each shift and periodically throughout the day as needed to protect the health of the employees.  There is no guidance on how often the air quality must be checked, so employers should use their best judgment.  If an employer can demonstrate that the AQI for PM2.5 is less than 151 or that employees will only be exposed to harmful air quality for an hour or less per shift, the employer does not have to comply with the remaining obligations of the regulation. 

If the AQI for PM2.5 is 151 or more, employers are required to move employees to enclosed structures (including vehicles) that have air filtering systems if possible.  Otherwise, employers must undertake efforts to lower the intensity of the work, provide more rest breaks, and/or reduce work hours.  In addition, employers are required to provide NIOSH-approved respirators (such as N-95 masks) to employees for voluntary use.  Note that when the PM2.5 exceeds 500, respirators are required to be provided and worn. 

Employers are also required to comply with specific educational and training components of the regulation.  Employers are now expected to implement a system of communication that informs employees of the current AQI for PM2.5 and educates them on the protective measures available to them.  Employers are specifically required to encourage employees to report worsening air quality in the workplace and any adverse symptoms or reactions resulting from wildfire smoke without fear of retaliation.  

The information must be conveyed to employees in a format that employees can understand and must include the following information:

  • The employee’s right to obtain medical treatment
  • How employees can obtain the current AQI for PM2.5 
  • The requirements for employers under the Cal/OSHA regulation
  • The employer’s two-way communication system (think “open door”)
  • The methods the employer uses to protect employees from wildfire smoke 
  • Education regarding respirator masks

To view the emergency regulation and its Appendices, follow the link below: https://www.dir.ca.gov/oshsb/documents/Protection-from-Wildfire-Smoke-Emergency-apprvdtxt.pdf.  

If you have questions about whether you need to comply with this Cal/OSHA regulation or on how to protect, train, or assist your employees when wildfire smoke is present in the workplace, please contact an SMT employment attorney.

CROWN Act Creates a New Protected Status:  Natural Hair and Traits Historically Associated with Race        

The California Fair Employment and Housing Act (FEHA) and the California Education Code have been revised to expand the definition of “race” to include “traits historically associated with race, including but not limited to hair texture and protective hairstyles”. This protects California students, employees, residents and applicants for employment and housing against discrimination based on any traits historically associated with race, including but not limited to hair texture and protective hairstyles (Natural Hair).  “Protective hairstyles” include, but are not limited to, hairstyles such as braids, locks and twists.  

As with other protected status categories, the law also protects against discrimination based on the perception that the person has this characteristic, or that the person associates with a person who has, or is perceived to have, this characteristic. 

The purpose of the law is to eliminate discrimination against people who do not meet the (mostly) unwritten societal norms that have historically equated European-centric looks and norms with professionalism, and dark skin or kinky, curly or textured hair with a lack of professionalism and other negative employment traits.  This discrimination has denied people with these traits opportunities in education, housing and employment; this law is intended to ban that discrimination.

In the employment context, any policy or practice that impacts recruiting, hiring, job qualifications, retention, promotion, compensation, discipline or termination cannot include traits historically associated with race, including Natural Hair characteristics, in any negative or disqualifying way.  

Employers should check all written and unwritten policies and practices to ensure compliance with the new law.  Obvious written policies to check and potentially revise include job descriptions and employee handbooks, but don’t forget to check and potentially revise recruitment advertising content, training materials for in-house recruiters, workplace dress codes, and performance and disciplinary documents.

This new law, which may seem quirky or unnecessary to some, is another opportunity for all of us operating in the employment arena to check our own biases and perceptions, examine them thoughtfully, and make any adjustments to our workplace-related policies and behavior accordingly.  Those of us working in the employment trenches have the ability to make a real difference in people’s lives and economic opportunities, and the California legislature has just shown us another way to have a positive impact.

Please contact an SMT employment law attorney with any questions or for guidance in bringing your employment policies into compliance with this new law.

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