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Welcome to California, land of opportunity, lawsuits, wealth, unemployment, highways, draughts, earthquakes, agriculture, Hollywood, Silicon Valley, farmland, beaches, deserts, forests, national parks and crowded urban centers. Or, to put it simply: Welcome to California, land of contradictions.

For years, companies have alternately benefited from and bemoaned California’s business climate. While a broad population of consumers and a constant influx of skilled workers make it easy to build a business, the state’s complex and onerous regulatory laws make it difficult to survive and achieve sustained growth. 

Jump to California’s HR and Workforce Rule Updates.

California COVID-19 State Regulations

Below is a round-up of COVID-19 state regulations for employers navigating how to operate safely during the pandemic. If you believe there may be a discrepancy between a state and local order that affects you or your business, you should contact your local government and/or competent local counsel for further advice.

UPDATED 6/21/21: CalOSHA Updates COVID-19 Workplace Standards, Effective Immediately

On June 17, 2021, the Cal/OSHA Standards Board voted and approved changes to the COVID-19 Emergency Temporary Standards (ETS). Following the vote, Governor Newsom issued Executive Order No. N-09-21 to bypass the 10-day process that the Office of Administrative Law normally adheres to and ensure that the ETS revisions took more immediate effect. We’ve outlined below what employers need to know and next steps.

California ETS Changes Employers Need to Know

Although there are some aspects of the ETS that remain the same, the revisions will make several changes employers need to know.

Employers should follow federal CDC guidance when it comes to face coverings, or masks, in the workplace.

Regardless of employees’ vaccination status:

  • Face covering requirements in outdoor settings are over (except if there is a COVID-19 outbreak), but all workers should be trained on the California Department of Public Health guidance for the outdoor use of face coverings.
  • Certain indoor settings require a face covering, regardless of vaccination status: public transportation, K-12 educational institutions, healthcare and long-term care facilities, correctional and detention facilities, and shelters.
  • In the case of a COVID-19 outbreak (3 or more cases in a group of employees who were exposed to the virus), everyone must wear face coverings indoors and outdoors whenever social distancing of 6 feet can’t be maintained.
  • Employers can’t retaliate against employees wearing face coverings.
  • Physical distancing and barrier requirements are over, except when:
    • Employers evaluate the need for social distancing and physical barriers during an outbreak.
    • Employers are required to implement social distancing and physical barriers during a major outbreak, which is defined as 20 or more cases in a group of employees who were exposed to the virus.

 

Fully vaccinated employees:

  • Don’t need to be tested or quarantined after close contact with someone who has COVID-19 unless that person shows symptoms.
  • Employers may allow them to go without face coverings indoors but must document their vaccination status (more on this below).

 

Unvaccinated employees:

  • Must wear face coverings indoors and in vehicles with other employees unless the employee is alone in a room or vehicle, when eating or drinking, accommodation is made for the employee, or when job duties make a face covering a hazard.
  • Upon request, employers must provide approved N95 respirators for voluntary use in indoor settings or in a vehicle with others. Employers aren’t required to mandate the use of respirators.  Employees who voluntarily use one should know how to properly wear the respirator, perform seal checks according to the manufacturer’s instructions for every use. Employers should also have employees who are voluntarily wearing respirators sign Appendix D to Sec. 1910.134: (Mandatory) Information for Employees Using Respirators When Not Required.

 

Other Compliance Considerations for Employers

More on Vaccine Documentation

Employers are required to collect and maintain vaccination status information for anyone not wearing a mask indoors, although the ETS doesn’t provide a method for this. They need to consider confidentiality, privacy, and equal employment opportunity laws when figuring out how to maintain this documentation.

Options for gathering vaccination status information:

  • Employees provide proof of vaccination, whether a vaccine card or health care document, and the employer keeps a copy.
  • Employees provide proof of vaccination, and the employer keeps a record of the employees who provided proof but doesn’t keep the proof on record.
  • Employees indicate or self-disclose their vaccination status and the employer keeps a record of those employees who disclosed their status.

 

Another option: Employers may request all employees wear a face mask instead of requiring documentation of vaccination status. There is nothing in the ETS to prevent an employer for implementing this kind of policy.

What happens if the employee declines to disclose their status? Employers aren’t obligated to require employees submit proof of vaccination, which means employees have the right to decline disclosing their status at all. Employers should treat these employees as unvaccinated and must not take disciplinary or discriminatory action against the employee.

What should you do? Employers should work with legal counsel to determine what course of action makes the most sense for your business and how you’ll comply with all relevant laws that could impact collecting and keeping vaccination information.

More on Respirator Requirements

In addition to providing employees with a respirator upon request, employers must provide respirators to all employees, regardless of vaccination status, during a major outbreak. Employers must be able to provide respirators, either by having enough in stock or polling workers to find out how many to order or have in supply. Once established, employers must have enough available in the correct size and type to fulfill future requests. Employees can buy their own, but employers must provide timely reimbursement. Cal/OSHA won’t cite employers who have made a “good faith” effort to provide respirators as soon as possible.

COVID-19 Testing Requirements

Employers must provide a COVID-19 test at no cost and during paid time to employees who are:

  • Unvaccinated and present with COVID-19 symptoms, regardless of a known exposure
  • Unvaccinated employees after a known exposure
  • Vaccinated employees who display COVID-19 symptoms following an exposure
  • Unvaccinated employees during an outbreak
  • All employees during a major outbreak

 

Still Required Parts of the COVID-19 ETS

  • A written COVID-19 Prevention Program
  • Providing compliance training and instruction as part of the employer’s prevention plan and employees’ right under the ETS
  • Notifying public health departments in the case of an outbreak.
  • Notifying employees about exposure or close contact with someone who has been exposed
  • Offering testing after a potential exposure to COVID-19
  • Requirements to respond to COVID-19 cases and outbreaks
  • Quarantine and exclusion pay
  • Prevention requirements for employer-provided housing and transportation

 

What Should You Do?
  • When it comes to employees’ vaccination status, work with legal counsel to determine what course of action makes the most sense for your business and how you’ll comply with all relevant laws that could impact collecting and keeping vaccination information.
  • Review and update your physical distancing and barrier policies and procedures and ease restrictions where applicable.
  • Assess your stock of respirators and determine how you’ll fulfill employee requests for respirators, train them on proper use, and how to respond to a major outbreak that might require the use of respirators for many employees.
  • Review your policies and procedures for how you will respond to an outbreak or major outbreak, taking into consideration everything from respirators, testing, face masks, and notifying the public health department.

 

Additional Resources

Occupational Safety and Health Standards Board Votes to Adopt Revised COVID-19 Prevention Emergency Temporary Standards (Press Release June 17, 2021)

California Occupational Safety and Health Standards Board Receives Update on California Department of Public Health Guidance (Press Release June 9, 2021)

Approved Revised ETS

Executive Order N-09-21

California COVID19 Resources

California Department of Public Health

California Executive Orders

CDC Types of Masks

CDC Maximizing Fit for Cloth and Medical Procedure Masks to Improve Performance and Reduce COVID-19 Transmission and Exposure


COVID-19 Emergency Temporary Standards Background

Who: California employers, except for:

  • Employees who are working from home.
  • The business has one employee and that person doesn’t interact with others.
  • Employees are already subject to CalOSHA’s aerosol transmission standard.

 

When: Effective November 30, 2020 for 180 days (or May 28, 2021). There is a chance this could be renewed twice, each time for 90 days.

The final language states that businesses must develop and implement a COVID-19 Prevention Program. There are several components that must be included:

  • Communication systems
  • Identifying, evaluating, and addressing hazards
  • Investigating and responding to COVID-19 cases
  • Employee training
  • Social distancing requirements
  • Engineering controls, administrative controls, and PPE
  • Reporting and recordkeeping
  • Return to work criteria

 

Update 5/21/21: With the standards set to expire on May 28, 2021, the Cal-OSHA Standards Board changed the date of a vote on a revision to the COVID-19 ETS from May 20, 20221 to June 3, 2021

Update 2/4/21: Cal/OSHA released business guidelines for general industry, agriculture and livestock, and food packaging and processing.

Update 1/13/21: Cal/OSHA released additional resources, including updated FAQs, COVID-19 Prevention Emergency Temporary Standards Fact Sheet Model Written Program.

California OHSA updated their guidance to help employers with testing obligations, when to pay employees exclusion pay, and enforcement of the standards.

When they are testing employees, employers don’t have to conduct the tests at the workplace but may send employees to a free testing site. Cal/OSHA reminded employers that they must pay their employees for their time to get tested as well as travel costs to the testing site.

Regarding an employee’s refusal to take a test, Cal/OSHA stated that as long as employers follow the standards’ obligations to provide no-cost testing, they have satisfied the state’s mandates. Employers don’t need to obtain a signed declination from employees refusing to take a test.

Regarding exclusion pay, employees must be “able and available to work” in order to receive this payment. Cal/OSHA provided examples when employees might be disqualified from receiving exclusion pay, like if an employee has COVID-19 symptoms and unable to work because of those symptoms. Employers may require employees to use paid sick leave to cover the pay requirement, but can’t require employees to use paid sick leave from California’s paid sick leave law. Exclusion pay under the emergency standard is only available to employees if the COVID-19 exposure or infection is work-related.

Through February 1, 2021, Cal/OSHA won’t be enforcing financial penalties for citations that fail to comply with the COVID-19 temporary standards that weren’t considered a violation prior to November 30, 2020.

Update 12/14/20: The California Department of Public Health issued new guidance that shortens quarantine times under certain situations and aligns with CDC recommendations. A person who has come into close contact with an infected individual but is asymptomatic may stop their quarantine after 10 days of the last exposure, with or without testing. During staffing shortages, essential critical infrastructure workers (health care, emergency response, and social service) may return after 7 days of their last exposure, if their PCR test result is negative. All individuals must adhere to self-monitoring for symptoms, using face coverings, and adhere to all other requirements.

Update 12/4/20: CalOSHA released a Model COVID-19 Prevention Program for download, as well as a Fact Sheet and FAQs on its Publications webpage.

Additionally, businesses must:

  • Conduct a risk assessment and address any identified hazards.
  • Practice social distancing, wear face coverings, address and increase ventilation or outdoor air as possible.
  • In the event of a positive COVID-19 case that involved a possible workplace exposure, use contact tracing, notify, and provide testing to any employee who was possibly exposed to the virus.
  • Prohibit workers with COVID-19 or employees with a high risk of exposure from returning to work until the quarantine period ends. Employees must be paid during their quarantine. 
  • Report outbreaks of 3 or more cases in a 2-week time period to the public health department. 
  • Provide testing to all on-site employees. Testing must be conducted twice/week in the event of 20 or more cases in 30 days.
  • For employer-provided transportation: conduct health screenings before using the vehicle, employees must sit 3 feet apart, and wear face coverings.
  • For employer-provided housing: beds must be 6 feet apart, do not use bunk beds, and disinfect the areas daily.

 

CalOSHA is enforcing the standards through civil penalties that will vary based on the violation’s severity.

How:

  • Review the final language with your legal counsel to ensure you have a clear understanding of what is required of employers. 
  • Review or draft your COVID-19 Prevention Program to ensure it covers all of the required components.
  • Conduct a Hazard Assessment. Review and audit your current practices, identify areas for improvement, and additional protocols you may need to implement.
  • Work and communicate with your employees about the importance of a safe work environment. Train them on the proper procedures you’ve put in place and any required training courses.

 

Additional Resources

NEW 2/4/21: Best Practices for General Industry (and the Spanish version)

NEW 2/4/21: Best Practices for Agricultural and Livestock (and the Spanish version)

NEW 2/4/21: Best Practices for Food Packing and Processing (and the Spanish version)

COVID-19 Quarantine Guidance

CalOSHA COVID-19 Emergency Temporary Standards – What Employers Need to Know (12/4/20)

Webinars on COVID-19

CalOSHA

Emergency Standard

California COVID-19 Resources

California Department of Public Health

California Executive Orders

Emergency Standard Regulations Notice

Occupational Safety & Health Standards Board (OSHSB)

COVID-19 Prevention

COVID-19 Emergency Temporary Standards Frequently Asked Questions

Posters, Educational Materials, Model Programs and Other Resources Related to COVID-19

NEW: Vaccination Toolkit for Employers

To help employers navigate the impact of COVID-19 vaccinations on their business operations and employees, the state released a new website, Employer Vaccination Toolkit.

The website helps connect employers with local provider partners to help schedule off-site vaccination events, request a worksite mobile clinic, and vaccine education materials.

If an employee is trying to vaccinate 100 employees or less, they should consider working with another employer or organization to coordinate a vaccination clinic.

Those employers looking for nearby group appointments, mobile or pop-up vaccination clinics, must submit an online request form to the California Department of Public Health and expect that someone will follow up with them within 3 business days. This resource is at no cost to employers.

Additional Resources

Employer Vaccination Toolkit

Vaccination Education Materials

California COVID-19 Resources

California Department of Public Health

California Executive Orders

 

Industry Employers Must Rehire Laid Off Employees

Who:

  • Hotels and any associated leased or contracted premise operated in conjunction with a hotel
  • Private Clubs
  • Event Centers and any associated leased or contracted premise operated in conjunction with an event center
  • Airport Hospitality Operations
  • Airport Service Providers
  • The janitorial, building maintenance, and Security Services at office, retail, and commercial buildings

 

When: Effective immediately until December 31, 2024

What: The California state legislature passed SB 93, which requires certain employers to offer new positions to COVID-19-related laid-off employees between now and December 31, 2024. There are certain qualifications that employees must meet in order to be offered their position back:

  • They must have been employed for at least 6 months or more in 2019, working at least 2 hours/week
  • Their separation was COVID-19-related including a public health directive, government shutdown order, decline in business, workforce reduction, other economic or non-disciplinary related reason because of the pandemic
  • They qualify for the available position.

 

Process. Once job positions, or job position, are established, the employer must offer them to all qualified laid off employees within five business days. The offer must be in writing, by letter, hand, email, or text message. The laid off employee must have at least five business days from the date of the notification to accept or decline the job.

If there is more than one laid off employee who qualifies for the position, preference should go to the person with the longer length of service. If an employer makes simultaneous, conditional offers to more than one laid off employee and more than one accepts the position, preference should go to the person with the longer length of service.

If the employer hires a non-qualifying person, they must provide written notice to the laid off employee within 30 days explaining the length of service of the person hired and every reason for the decision.

Enforcement and Complaints. Laid off employees may file a complaint with the Division of Labor Standards Enforcement (DLSE) for any adverse action taken against the employee for asserting rights that fall under the new law. The DLSE can impose civil penalties of $100 plus liquidated damages of $500 per employee per day, as well as any relief like reinstatement, front and back pay, and compensation for lost benefits.

Record-keeping requirements. Employers must keep records of the employee’s layoff, contact information (legal name, date of hire, address, email address, phone number, job classification at the time of separation), written layoff notices, communication records about job offers. These records must be kept for at least three years from the date of an employee’s written layoff notice.

What Should You Do?

  • If you fall within the above-named industries and have had to lay off employees, seek legal counsel to review and update your hiring procedure to account for notifying and rehiring laid-off employees.
  • Update your record-keeping practices to comply with the new law.

 

Additional Resources

SB 93

 

UPDATE 4/26/21: California Supplemental Paid Sick Leave

Who: California public and private employers with 25+ employees

When: January 1, 2021 (retroactively) to September 30, 2021 although employers must start providing leave on March 29, 2021.

Update 4/26/21: The Department of Industrial Relations in California and the California Labor Commissioner’s Office published a new website: 2021 COVID-19 California Supplemental Paid Sick Leave Tool. The online tool helps employers and employees figure out eligibility for COVID-19 paid sick leave. The tool is in English and Spanish.

Employers can find information on when they must pay for COVID-19 sick leave, calculating leave, how to list the paid leave on pay stubs, and the required communication that must go to employees. Employees can find information on their rights, the required scenario to use COVID-19 paid sick, how to request it, and where to file a claim.

What: On March 19, 2021, Governor Newsom signed legislation that revives and changes California’s COVID-19 Supplemental Paid Sick Leave law that ended at the end of last year.

Employees who can’t work or telework for the following reasons are eligible for paid leave:

  • The worker is subject to a quarantine or isolation period related to COVID-19.
  • A health care provider has advised the employee to self-quarantine for COVID-19-related reasons.
  • The employee is attending COVID-19 vaccination appointment(s).
  • The employee is experiencing COVID-19 vaccine-related symptoms that prevent the employee from working or teleworking.
  • The employee is experiencing COVID-19-related symptoms or seeking a diagnosis for COVID-19-related symptoms.
  • The employee is caring for a family member who is isolating or quarantining.
  • The employee is caring for a child whose school or day care has closed or is unavailable for COVID-19-related reasons.

 

There’s no length of service required to be eligible for this paid leave.

Amount of leave. Full-time employees are eligible for 80 hours of COVID-19 paid sick leave, provided they have worked on average 40 hours or more per week during the two weeks prior to the date of leave.

Part-time employees are eligible for 14 times the average hours the employee works each day during six months prior to taking the leave. Employees who have worked for 14 days or less are entitled to the number of hours worked for the employer.

This legislation starts a new bank of paid sick leave for employees to use. Employers who were eligible under the previous law (those with 500+ employees), and who paid out the supplemental sick leave in 2020, must provide this new amount of additional leave for 2021. Those employers (with more than 25 employees) who were not previously covered will now be obligated to provide the applicable leave amounts.

Rate of pay. The rate of pay is different from the previous legislation.

Non-exempt employees should be paid at the highest of:

  • The rate calculated as the regular rate of pay for the workweek the employee uses the sick leave, whether or not overtime was worked during that week.
  • The rate determined by dividing the employee’s total wages (without adding in overtime) by the employee’s total hours worked during full pay periods during the previous 90 days.
  • The state or local minimum wage that the employee is entitled to.

 

Exempt employees should be paid the same way the employer calculates wages for other paid leave.

COVID-19 supplemental paid sick leave is capped at $511/day or $5,110 total.  

Employers who already provide COVID-19 supplemental paid sick leave as outlined above may count those hours towards this legislation’s supplemental paid sick leave. Employers can’t require employees use other paid or unpaid leave before using this COVID-19 supplemental paid sick leave.

This new supplemental paid sick leave provides that an employer may require employees to first use up this COVID-19 supplement paid sick leave to satisfy the continued earnings outlined in Cal/OSHA’s Emergency Temporary Standard.

Additionally, wage statements must reflect the COVID-19 supplement paid sick leave and be outline separately from other paid sick days. Employers can use an initial calculation that uses the term “variable” noted next to it for part-time or employees with varying schedules.

Notice requirements. Employers must provide a notice to employees about their right to use this new law’s COVID-19 supplemental paid sick leave. The Labor Commissioner published a model notice for employers to use. Employers may provide an electronic notice to employees working remotely and should post a physical notice in a highly trafficked area.

The deadline to provide the notice is March 29, 2021.

What Should You Do?

  • Determine if you are eligible to provide this new paid sick leave.
  • Consult with legal counsel on how to implement this law and how it interacts with any other local laws.
  • Determine if you need to provide employees with retroactive payments for any paid sick leave taken on or after January 1, 2021.
  • Communicate and educate your employees about the use of COVID-19 supplemental paid sick leave.

 

Additional Resources

NEW: DIR and California Labor Commissioner’s Office Launch Web-based COVID-19 Paid Sick Leave Tool (Press Release)

NEW: 2021 COVID-19 California Supplemental Paid Sick Leave Tool

SB-95

2021 COVID-19 California Supplemental Paid Sick Leave Model Notice English

2021 COVID-19 California Supplemental Paid Sick Leave Model Notice Spanish

California COVID-19 Resources

California Department of Public Health

California Executive Orders

2021 COVID-19 Supplemental Paid Sick Leave FAQs

COVID-19 Required Postings, Videos and Other Resources

 

Guidance: COVID-19 Vaccination FAQs for Employers

The California Department of Fair Employment and Housing (DFEH) published FAQs to help employers navigate workplace-related COVID-19 vaccination issues. This latest guidance mirrors the Equal Employment Opportunity Commission.

Among the takeaways:

  • Employers may require employees to get COVID-19 vaccines, but they must provide disability and religious accommodations and cannot retaliate or discriminate against employees for any kind of protected characteristic or activity.
  • Employers don’t have to provide reasonable accommodation to workers who refuse the vaccine for non- disability or religious reasons. Reasonable disciplinary action can be used if the action isn’t considered retaliation against a protected class or activity.
  • Employers who administer a COVID-19 vaccination program may request medical information that is relative to receiving a vaccination and is “job-related and consistent with business necessity.”
  • Employers may require proof of vaccination from employees. This proof is considered medical information and should be maintained as confidential. Employers who require proof should encourage employees to leave out any medical information that isn’t relevant to the vaccination.

 

What Should You Do?

  • Consult with legal counsel about the business implications of employee mandated vaccination (e.g., paid time off, wages, accommodations, tracking vaccinations, privacy)
  • Consult with legal counsel about the implications of implementing a workplace vaccination program.  

 

Additional Resources

California DFEH Employment Information on COVID 19 FAQs English

California DFEH Employment Information on COVID 19 FAQs Spanish

California COVID-19 Resources

California Department of Public Health

California Executive Orders

 

Golden Gate Stimulus Package

Who:

  • Businesses with an annual revenue $1,000 – $2.5 million
  • State residents who earn less than $30,000 annually and qualify for California Earned Income Tax Credit
  • Residents who could not receive the recent federal stimulus payment, who don’t have a Social Security Number but have an Individual Tax Identification Number, and earn less than $75,000 annually
  • Undocumented workers
  • CalWORKS
  • Blind, elderly, and disabled state residents

 

When: Effective Immediately. Businesses will need to apply for grants. For individuals after filing 2020 taxes, payments may take up to 45 days for direct deposit and 60 days for paychecks.

What: Governor Gavin Newsom signed legislation, a $7.6 billion Golden State Stimulus plan, to send stimulus checks to certain state residents and undocumented immigrants.

Eligible businesses can apply for grants that range between $5,000 to $25,000. These funds are on top of the initial grant program of $500 million that began in 2020.

Tax breaks area available for small businesses through Economic Injury Disaster Loans, or loans issued under the Payment Protection Plan. Additional funds have been set aside for food processing and agriculture workers who have contracted the virus.

Fees associated with alcoholic beverages, cosmetology, and hairstyling have been canceled for the next two years.

Qualifying Californians will receive one-time $600 stimulus payments.

Undocumented immigrants who qualify for the California Earned Income Tax Credit and file Individual Taxpayer Identification Numbers will receive up to $1,200.

Those who receive CalWORKS could also receive $600 payments by mid-April.

What Should You Do?

  • Consult with your legal counsel regarding what loans or grants your business may qualify and to determine whether to pursue them.

 

Additional Resources

Governor Newsom Signs Legislative Package Providing Urgent Relief to Californians Experiencing Pandemic Hardship (Press Release)

Golden State Stimulus

California COVID-19 Resources

California Department of Public Health

California Executive Orders

 

Consolidated COVID-19 Government Resource Site Launched

The California Labor & Workforce Development Agency and the California Department of Industrial Relations produced a new website to help employers find all of the relevant rules and guidance that apply to their business.

The new site provides all of the information necessary for employers to create a safe workplace and help prevent the spread of COVID-19. In addition to training resources, safety practices, and testing information, the site helps employers navigate what to do when an employee has been exposed to or is infected with COVID-19.

The site includes a COVID-19 Employer Portal that will build a customized road map of guidance for employers based on the information they provide. The road map will pull the relevant state and county guidance that employers will need to review and figure out how to implement.

Additional Resources

New Website

COVID-19 Employer Portal

 

 

 

COVID-19 Reporting Requirements for Workplace Exposure (AB685 & AB2537)

Who: Public and private California employers

When: January 1, 2021

Update 12/14/20: The California Department of Public Health published a memo that provides guidance on AB685’s reporting requirements. In addition to reporting information, it also includes a template for employers to use when reporting a workplace COVID-19 outbreak.

Update 10/7/20: Governor Newsom issued AB 2537 which mandates that public and private employers of health care employees that provide direct patient care, like general acute care hospitals, provide PPE and follow regulations to ensure workers use the PPE accordingly. It also asserts days in 2021 that employers will need to be ready to report to the Department of Industrial Relations the “highest seven-day consecutive daily average consumption of personal protective equipment” and maintain a stockpile of PPE equipment that equates to 3 months of normal consumption. See AB 2537 for further details.

Governor Gavin Newsom signed AB 685 on September 17, 2020, that requires California employers to notify employees when there has been a COVID-19 workplace exposure and local public health departments when there has been an “outbreak.”

Notifying Employees

When an employer receives notice of a potential COVID-19 exposure, they have one business day to provide a written notice to employees, their representative (if applicable), and the employers of any subcontractors who were on-site at the same time as the potential exposure.

In addition to the written notice of potential COVID-19 exposure, employers should also include information about the federal, state, and local COVID-19-related benefits that employees may qualify for as well as the health and safety plan the employer will implement to help prevent the spread of COVID-19.

A notice of a potential COVID-19 exposure could come from:

  • A public health official or health care provider that an employee was exposed to a “qualifying individual” at the workplace,
  • An employee or employee’s emergency contact they are a “qualifying individual,”
  • The testing protocol the employer uses that identifies a “qualifying individual,” or
  • A subcontractor’s employer that a “qualifying individual” was on-site.

 

A “qualifying individual” is someone who has a confirmed case of COVID-19, has a positive COVID-19 diagnosis from a health care provider, has a COVID-19-related order to quarantine or isolate form a public health official, or has died from COVID-19.

Employers must maintain records of all written notifications for at least 3 years.

Notifying the Local Health Department

If 3 or more employees are diagnosed with COVID-19, the employer must report the cases to the local health department.

Additionally, the California Department of Public Health released guidance, Responding to COVID-19 in the Workplace for Employers.

Additional Resources

Employer Guidance on AB 685: Definitions

Employer Questions about AB 685

Responding to COVID-19 in The Workplace for Employers

AB685

California Executive Orders

California Department of Public HealthCalifornia COVID-19 Resources

 

 

Department of Health Issues New Quarantine and Isolation Guidance in October

The California Department of Health released self-quarantine and self-isolation instructions for people who have been exposed to, who have, or who likely have COVID-19.

 

Supplemental Paid Sick Leave to California Workers Due to COVID-19, AB 1867

Who: Employers with 500+ employees

When: September 19, 2020 (for non-food sector employees, see below for more on food industry guidance) to December 31, 2020

What:

Update 9/14/20: The Labor Commissioner updated its COVID-19 Information webpage to include the food industry and non-food industry posters. It also released FAQs.

AB 1867 was signed into law to require large employers to provide supplemental paid sick leave if employees meet the qualifications due to COVID-19. This Act solidifies Executive Order N-51-20 as part of the California code.

The reasons for using the supplemental paid sick leave include:

  • A federal, state, or local quarantine or isolation order because of COVID-19
  • A self-quarantine or self-isolation order because of COVID-19 from a health care provider
  • The employer bars the employee from working because of health concerned related to the transmission of COVID-19

Full time employees that work 40 hours/week are eligible for 80 hours of paid sick leave. Part-time employees that works less than 40 hours/week may take leave that is equal to the number of hours the employee works in a two week period. Eligible employees receive leave at their regular rate of pay, capped at $511/day and $5,110 total.

Other accrued leave may be used after the supplement sick leave through AB 1867 is used. Employers can’t require employees to use other paid leave first. Employers will need to account for any remaining balance of the supplemental sick leave on employee wage statements. If an employer provided COVID-19-related supplemental paid sick leave on their own, before AB 1867, that sick pay may retroactively count towards the $5,110 total.

Employers must provide a poster notice to inform employees of their rights of supplemental paid sick leave for non-food sectors and food sector employees, including health care workers and emergency responders.

Additional Resources

AB 1867

FAQs On Supplemental Paid Sick Leave

California Department of Public Health

CA COVID-19 Supplemental Paid Sick Leave for Non-Food Sector Employees

CA COVID-19 Supplemental Paid Sick Leave for Food Sector Workers   

California Side by Side Comparison of COVID-19 Paid Leave

 

Workers Compensation Benefits

Who: Employers with 5+ employees

When: September 17, 2020, although retroactively effective to July 6, 2020,  to January 1, 2023

What:

When Executive Order N-62-20 expired on July 5, 2020, the California legislature introduced SB 1159. Governor Gavin Newsom signed SB 1159 into law on September 17, 2020.

The law expands workers’ compensation coverage contracted COVID-19 cases through 2022 and does 3 things:

  • It establishes, as part of the California code, the previous Executive Order’s rebuttable presumption that a worker who contracts COVID-19 did so at the workplace 
  • Certain employees, like first responders and health care professionals, health care facility workers are also presumed to have contracted COVID-19 at work if the worker tests positive for COVID-19 within 14 days of working, and the date was after July 6, 2020. This presumption can be disputed or rejected by an employer within 30 days.
  • The law applies to employers with 5+ employees where there is an outbreak at work, meaning that an employee will be believed to have contracted COVID-19 at work if they test positive within 14 days of working on-site, the date worked was after July 6, 2020, and the positive test occurred during an “outbreak” at work.

 

An “outbreak” is defined as:

  • For employers with less than 100 employees: 4 employees test positive for COVID-19 within 14 calendar days
  • For employers with 100+ employees: 4% of employees test positive for COVID-19 within 14 calendar days.
  • Public authorities order the workplace to close because of the risk of COVID-19.

 

Reporting

Employers with 5+ employees must inform their workers’ compensation carrier within 3 business days that an employee tested positive, the date of the positive test, the employee’s workplace address, the highest number of employees who went to work within 45 days of when the impacted employee last worked. The report may be made through email or fax.

Additional Resources

SB 1159

California Department of Public Health

California Executive Orders

Executive Order N-62-20

California Division of Workers’ Compensation

 

Cal/OSHA Urges Employers to Review Health and Safety Plans; Hosts Industry-Specific COVID-19 Webinars

Who: All California businesses

What: Cal/OSHA recently updated its guidance for employers, urging them to keep their Injury and Illness Prevention Programs (IIPP) up to date. IIPP’s must cover 8 topic areas including responsibility, compliance, communication, hazard assessment, accident and exposure investigation, hazard correction, training and instruction, and recordkeeping.

If an employee requests to see the IIPP, employers must provide a hard copy, unless the employee requests it electronically, within 5 business days. In addition to ensuring that employees have access to the IIPP employers must be sure their programs include written verbiage about:

  • Healthy and safe workplace practice measures
  • Measures to take to identify, evaluate and investigate workplace hazards, injuries and illnesses
  • How to communicate hazards to employees
  • Employee training procedures for a new or unrecognized hazard

 

Employers are also responsible for training employees on the IIPP and for informing them that they can request access to the program.

Additionally, Cal/OSHA has organized industry-specific webinars throughout the month of September. The full schedule can be found here.

Additional Resources

Cal/OSHA and Statewide Industry Guidance on COVID-19

Employee Access to Injury and Illness Prevention Program

 

Supplemental Paid Sick Leave for Food Industry Workers

Who: Food industry employers with 500+ employees

When: Effective April 16, 2020 to December 31, 2020

What:

Update 9/21/20: A new poster is issued for the food sector workers titled CA COVID-19 Supplemental Paid Sick Leave for Food Sector Workers that employers need to post by September 19, 2020. Due to the passage of AB 1867, food sector workers no longer need to be considered part of critical infrastructure due to labor code section 248.

Executive Order N-51-20 was issued in April to require the food industry employers to provide employees with Supplemental Paid Sick Leave of up to two weeks (80 hours) for any qualifying COVID-19 reasons. Part-time employees are eligible for the total number of hours they normally work in a two-week period.

Supplemental Paid Sick Leave is paid out at the employee’s regular rate of pay in the previous pay period, the state or local minimum wage, and is capped at $511/day and $5,110 total. This paid leave on top of other paid sick leave that employers are required to provide.

Among the qualifying industries for this requirement are organizations that:

  • Relate to canning, freezing, and preserving food
  • Handle products after harvest
  • Prepare agricultural products for market on the farm
  • Are agricultural
  • Are food facilities or any operation that stores, prepares, packages, serves, etc. food for human consumption
  • Handle food delivery from a facility

 

Acceptable uses of the Supplemental Paid Sick Leave include:

  • Federal, state or local quarantine or isolation order because of COVID-19
  • A self-quarantine or self-isolation order because of COVID-19 from a health care provider
  • The employer prohibits the employee from working for health concerns related to the transmission of COVID-19

 

No formal documentation is required but employers must provide the Supplemental Paid Sick Leave immediately upon an oral or written request.

Impacted employers must post the California COVID-19 Supplemental Paid Sick Leave for Food Sector Workers poster or distribute it to employees that are not located on-site

 

UPDATED 5/20/21: Face Coverings Guidance Will Align with CDC Starting June 15, 2021

Update 5/20/21: California is maintaining its face covering guidance until June 15, 2021. Here is the current guidance. Starting June 15, the state will align its mask guidelines with the CDC’s guidelines for vaccinated people. Under this new guidance, employers can allow fully vaccinated people to no longer wear masks indoors and outdoors and stop adhering to social distancing requirements. Employers can also ask for employees’ vaccination status and request proof of vaccination, but if they keep the information they must treat it like confidential medical information. While making reasonable accommodations, employers may use vaccination status to guide employees’ access to workplaces, events, and other work locations. Businesses may choose to continue requiring masks and social distancing for employees and employees may choose to continue wearing masks and social distance.

What Should Employers Do? Employers will need to review their local guidance and adhere to whichever rules are the strictest in order to ensure compliance. They should train managers about communicating with employees about vaccine status and continue to monitor Cal-OSHA for more guidance.

Update 3/8/21: The California Department of Public Health released a new resource, Get the Most out of Masking Guidance. The article outlines what a “good fit” and “good filtration” means for wearing a mask. It also describes “double masking,” when it’s important to wear an effective mask, and how to choose your mask.

Update 11/28/20: The California Department of Health issued a Face Shield FAQs to answer questions like what they are, how they can or can’t be used with face masks, and what to look for in a face shield.

Update 11/16/20: On November 16, 2020, the California Department of Health issued new guidance for face coverings. Individuals must wear face coverings outside of their homes. There there are several exceptions, including being in the car alone or with immediate household members, working in an office or room alone, actively eating or drinking as long as they are a safe distance from others, and more. A full list can be found here.

On June 18, 2020, the California Department of Public Health issued guidance that all California residents are required to wear a cloth face covering in high-risk situations. A cloth face covering is any material or fabric that covers the nose and mouth.

Examples are more extensive in the guidance, but include:

  • Inside and outside public areas.
  • Performing work onsite or offsite whenever interacting with the public or a space frequented by the public, common areas like hallways and elevators, wherever food is prepared to help prevent the spread of COVID-19.
  • Taking public transportation, ridesharing, or taxis.
  • Whenever obtaining any health care services.

There are exceptions to this rule if individuals meet certain requirements. Remember that face coverings don’t replace social distancing, hygiene, or sanitation guidelines.

How:

  • Employers should review industry-specific guidance.
  • Be sure your employees know what kinds of masks they should be wearing and how to wear them properly
  • Be sure to check your local county or city mandates for additional requirements, like providing employees with coverings.

Additional Resources

CDPH Guidance for the Use of Face Coverings

Face Coverings, Masks, and Respirators

Statewide Industry Guidance to Reduce Risk

California Public Health Officials Release Guidance Requiring Californians to Wear Face Coverings in Most Settings Outside the Home (Press Release)

 

Enforcement of the California Consumer Privacy Act Takes Effect July 1, 2020

Who: Covered California Businesses

When: Effective Immediately

What: As of July 1, 2020, the enforcement of the California Consumer Privacy Act (CCPA) is effective. The CCPA may impact the requirements that the COVID-19 pandemic has placed on businesses to help prevent the spread of infection.

Primarily intended to protect consumers, the CCPA uses a definition of consumer that extends to employees as well. Businesses will need to determine the source of the personal information and how it will be collected and used. When it comes to employees’ personal information, businesses will need to determine if the information will be used in any way outside of the employment relationship between a business and its workers. Consulting with legal counsel may help with this determination.

As businesses work to meet state and local orders about COVID-19 hygiene and safety requirements, and gather personal information, they should review and update their privacy notices to ensure they comply with the CCPA. Under the regulation, employers must provide notice to consumers, which can include individuals like employees, job applicants, and contractors, at or before collection of personal information about what categories of personal information will be collected and why their personal information is being collected.

Personal information is defined by the CCPA as, “information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.”

Additional Resources

Chapter 20. California Consumer Privacy Act Regulations

 

California Unemployment Insurance Benefits Available for Long-Term Unemployed

Who: California employees

When: Effective Immediately

What: California has taken two actions to increase long-term unemployment benefits to workers. The California Employment Development Department completed its Pandemic Emergency Unemployment Compensation rollout which provides up to 13 weeks of unemployment insurance benefits for individuals who have run out of the normal benefits.

Governor Newsom signed AB 103 into law, qualifying the state for federal standards of unemployment benefits. These benefits include an additional 7 weeks of unemployment benefits.

These actions have increased the possible unemployment insurance benefits to up to 20 weeks and will be utilized through the Federal-State Extended Duration (FED-ED) benefits program.

In order to be eligible, workers must have earned more than 40 times the weekly benefit amount or 1.5 times their highest quarterly earnings during the base period, covering 12 months, divided into 4 consecutive quarters.

Those who qualify will be eligible for the $600 stimulus through July 25, 2020, based on the end date named in the federal CARES Act. FED-ED will be re-establishing the requirement that workers answer basic questions about their unemployment status.

Additional Resources

FED-ED Extension

California Employment Development Department PEUC

California Employment Development Department COVID-19

California COVID-19 FAQs

 

Cal/OSHA Issues Additional Guidance for Reporting COVID-19 Cases

Cal/OSHA’s guidance regarding recording and reporting COVID-19 cases is similar to federal OSHA guidance, requiring employers to investigate if a COVID-19 case is work-related and record them on the company’s log when the case results in death, lost time, medical treatment, or loss of consciousness.

Separate to federal guidance Cal/OSHA goes on to require that employers may need to report the work-related COVID-19 case when it results in death or hospitalization. Additionally, the state agency mandates that any work-related case that results in death or hospitalization must be reported, no matter how much time has elapsed.

The work-related case may also need to record it, and maybe even report it, if it causes “significant injury or illness” as stated by a medical professional.

Other ways Cal/OSHA differs from federal guidance:

  • There may be instances where a confirmed positive COVID-19 test isn’t needed for a reportable or recordable case, suspected cases may qualify for reporting or recording.
  • Because Cal/OSHA requires the reporting of a “serious injury or illness,” employers may need to report a case of COVID-19 regardless of whether it is work-related.
  • Determining if a COVID-19 case is eligible for workers’ compensation is a separate decision from determining if a case is recordable or reportable to the agency.

 

Additional Resources

Recording and Reporting Requirements for COVID-19 Cases

 

Employer Injury and Illness Prevention Program Expanded

Under guidance that came out in late May, Cal/OSHA has modified its rules to mandate that California employers create and enforce an Injury and Illness Prevention Program (IIPP). The IIPP program must contain 4 key provisions listed under the California Code of Regulations, title 8, section 3203. The Program must address four key areas including procedures for developing health and safety work practices, procedures for finding and assessing workplace hazards, injuries, and illnesses, developing systems for employee hazard communications, and employee training.

The program must take into consideration COVID-19 infection control in the workplace and follow CDC recommendations. It must be a written document that is readily available to employees. Employers are to provide preventable measures and training.

There are additional industry-specific considerations for businesses like agriculture, child care, and construction.

Additional Resources

KPA’s How California Auto Dealers Can Get Back to Work Under Cal/OSHA’s Guidelines

§3203. Injury and Illness Prevention ProgramCal/OSHA Interim General Guidelines for Protecting Workers from COVID-19

 

WARN Act Notice Requirements Temporarily Suspended

Who: California employers with 75+ employees

When: Effective Immediately until the end of this emergency

What: Governor Gavin Newsom signed Executive Order N-31-20, which relieves employers of the 60-day notice requirement of the California Worker Adjustment and Retraining Notification (Cal-WARN).

The executive order waives the current requirement that employers with 75+ employees in the last year must provide 60 days’ notice before conducting large-scale layoffs (i.e., 50+ employees in a 30-day period), relocation, termination, or furloughs. The new requirement states that employers must:

  • Give as much notice as is practical.
  • Be consistent with the federal WARN Act in that the mass layoff, etc. must be caused by COVID-19-related business circumstances that were not reasonably foreseeable at the time that notice would have been required.
  • Give written notices as outlined in Cal-WARN. When the notice is distributed, also provide a brief statement outlining the reason for reducing the 60-day notice requirement.
  • The statement must include, “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at labor.ca.gov/coronavirus2019.”

 

How:

If you’re considering a mass layoff, closure, relocation because of COVID-19, aside from contemplating consulting with competent legal counsel, be sure to:

  • Determine whether you’re covered by Cal-WARN.
  • If you’re covered, modify your procedures to comply with the Executive Order by providing proper notice, stating clearly that the reason is because of COVID-19.
  • Ensure you have a statement stating why you aren’t following the normal 60-day notice and the requirement statement above.
  • In addition to distributing the written notice to impacted employees, be sure to notify the California Employment Development Department, the local workforce investment board, and the elected official of each city and county government where the layoff, closure, etc. occurs.

 

Additional Resource

COVID-19 Resource for Employers and Workers

 

KPA Partner Fisher Phillips’ Auto Dealership COVID-19 FAQ

Who: California auto dealerships

When: Effective Immediately

What: Fisher Phillips has put together a comprehensive list of questions that auto dealers may be facing in light of California’s executive order and the evolving policies issued by the federal government.

In a frequent asked questions format, Fisher Phillips answers questions involving:

  • Continuing operations at your dealership
  • Length of California’s Executive Order
  • Layoffs versus furloughs
  • Paid sick leave and its relation to the Family Medical Leave Act (FMLA)
  • Employment issues revolving around positive COVID-19 tests

 

How:

If you have questions about your business’s response to COVID-19, take time to review the FAQ to see if Fisher Phillips may have an answer to your question.

 

 

California COVID-19 Local Regulations

Marin County Passes Supplemental Paid Sick Leave for Certain COVID-19 Reasons

Who: Employers, located in unincorporated areas of the county, with 25 or fewer employees

When: Effective June 8, 2021 through September 30, 2021

What: On June 22, 2021, the Marin County Board of Directors passed an urgency ordinance to provide supplemental paid sick leave (SPSL) for the following COVID-19-related reasons:

  • A health care provider has advised the worker to isolate or quarantine, or the worker is caring for someone who has received the same guidance.
  • The worker is subject to a federal, state, or local COVID-19-related quarantine or isolation order or is caring for someone who is subject to the order.
  • The worker is displaying COVID-19 symptoms and is looking for a medical diagnosis, or is caring for someone who is displaying symptoms.
  • The worker needs to care for someone whose school, day care, or assisted living services have been closed or are otherwise unavailable because of COVID-19.
  • The worker is getting a COVID-19 vaccine or experiencing symptoms as a result of getting a vaccine that prevents the worker from working or teleworking.

Covered employees include anyone who has worked for an employer for two hours or more in Marin County’s unincorporated area. They may use SPSL for their own covered reasons or to care or assist an “individual,” who is defined as being an immediate family member, someone who resides in the worker’s home, or a person who the worker has such a relationship that there is an expectation that they will care for the impacted individual, or if the individual’s school, day care, or senior care is closed for COVID-19-related reasons.

The amount of leave for full-time employees who are regularly scheduled to work 40 or more hours/week is 80 hours of SPSL. Other employees will receive an amount of SPSL equal to the average number of hours worked in a two-week period, employers must calculate this over the previous six months.

The rate of pay should be at the employee’s regular rate of pay. The amount of pay is capped at $511/day or a total of $5,110.

SPSL is available in addition to any other paid sick leave the employer makes available under California’s Healthy Workplace Healthy Family Act and pre-existing paid time off that was available to employees before March 16, 2020. Employers can’t require workers to use other types of leave before using SPSL.

If the employee accrued at least 80 hours/paid sick leave benefits, or at least 160 hours of combined paid sick, vacation, and paid time off benefits, then the employer has met the obligation to provide SPSL.

Employers may offset SPSL by the amount of COVID-19 paid sick leave they qualified for under the federal FFCRA or Cal/OSHA regulations, or other future state or federal COVID-19 paid sick leave regulations.

Employers may require that employees provide reasonable notice for any foreseeable leave, as well as identify the need for the leave, although they can’t require doctor’s notes or other similar documentation.

Employers can’t retaliate or discriminate against an employee for using SPSL, nor can they require the employee to find a replacement as a condition of using SPSL.

Employees can’t waive their rights under the ordinance. Employees may file a lawsuit against an employer under the ordinance.

Employer notices and recordkeeping: Within 3 days of the published ordinance, employers must provide a notice in English and Spanish to all employees about their rights to SPSL. Employees must be notified through whatever means will reach all employees, including posting a notice on-site, an intranet, email, or other internal platform. Employers must keep a record of all employees’ names, number of hours worked, and rate of pay.

Additional Resources

Marin County Coronavirus Information

 

Sacramento Paid Leave

Updated 3/11/21: On January 14, 2021, the Sacramento County Worker Protection, Health and Safety Act of 2020 was extended from December 30, 20220 to March 31, 2021.

Update 10/12/20: Employers must implement requirements from the Worker Protection, Health and Safety Act of 2020 by October 16, 2020. See below regarding the law’s requirements for providing paid leave to employees.

Update 9/28/20: The Sacramento County Worker Protection, Health and Safety Act of 2020 that takes effect on October 1, 2020, includes a supplemental paid sick leave requirement for employers located in the unincorporated parts of the county and have more than 500 employees nationwide. Full-time employees qualify for 80 hours of paid sick leave and part-time employees will receive an amount that is equal to the number of hours worked on average over a two-week period. Employers are obligated to pay for SPSL at $511/day or for a total of $5,110.

See below for the original posted information from July 2020.

In addition to the supplemental paid sick leave, employers must implement social distancing and health and safety protocols and procedures like providing face coverings for employees, daily cleaning and disinfection of high-touch areas, in addition to other protocols that can be found on pages 5-6 of the Ordinance.

Original Posted Information:

Who: Employers with 500+ employees

When: July 15, 2020 to December 31, 2020

What: The Sacramento City Council passed the emergency ordinance, the Worker Protection, Health, and Safety Act, that requires employers not covered by the Emergency Paid Sick Leave Act under the Families First Coronavirus Response Act (FFCRA) to provide up to 80 hours of supplemental paid sick leave for the same qualifying reasons under the FFCRA.

Full-time employees qualify for 80 hours of paid sick leave and part-time employees will receive an amount that is equal to the number of hours worked on average over a two-week period. Employers should calculate that rate by using the number of hours worked for each week during the 6 months immediately preceding July 15, 2020, multiplied by 2.

Under the law, employees may also use supplemental paid sick leave if they can’t work or telework because they’re part of a vulnerable population due to their age or their compromised immune system.

Employers are required to implement social distancing and cleaning protocols and practices, including providing face coverings for employees and mandating the use of face coverings when social distancing can’t be maintained.

Employers can’t require an employee to use other accrued paid sick leave, paid time off, or vacation time before using supplemental paid sick leave (SPSL). Employers can’t require an employee to find a replacement work as a condition of using SPSL and also can’t discipline or dock attendance points for an employee’s use of SPSL. Employers also can’t retaliate against employees that exercise their rights under the ordinance.

If employers provided additional paid sick leave starting March 19, 2020, they may choose to use that leave time as credit against the number of SPSL hours required by the ordinance.

Employees have the right to refuse work if the employer is violating the ordinance in any way. If they’re asked for it, employees must provide the reason for requesting the SPSL, although a doctor’s note isn’t required. Employees should give reasonable notice if it’s required by the employer.

Additional Resources

Ordinance No. 2020-0026

City of Sacramento COVID-19 Website

 

San Francisco Paid Sick Leave

Who: All San Francisco employers

When: Effective Immediately

What: San Francisco Mayor London Breed announced a “Workers and Families First Program” to expand paid sick leave to workers impacted by COVID-19. The program will provide financial assistance to businesses and nonprofits to provide an additional five days of paid sick leave to employees on top of their existing policies.

Up to 20% of Program funds will be set aside for small San Francisco businesses with 50 or fewer employees. The Program will contribute up to 40 hours (or one week) at $15.59/hour (minimum wage) per employee or $623 per employee. The employer must pay the difference between minimum age and the employee’s hourly wage.

The program is available if:

  • The worker has used all of their currently available sick leave
  • The worker has used or isn’t eligible for federal or state supplemental sick leave
  • The employer agrees to extend sick leave beyond its current policy.

 

How:

Review your current sick leave policies and determine if your business and employees could benefit from this new program.

Additional Resources

San Francisco Paid Sick Leave & The Coronavirus

Assistance and Guidance for Businesses and Workers Impacted by COVID-19

City and County Office of Labor Standards Enforcement

 

Updated 4/1/21: San Francisco Paid Public Health Emergency Leave Extended

Update 3/11/21: The city’s Board of Supervisors extended the emergency paid sick leave ordinance for a 60-day extension, extending benefits until April 12, 2021. The ordinance provides several new provisions including exempting certain 501(c)(3) organizations that meet certain conditions and removes the provision regarding the utilization of paid sick leave regardless of if the employer scheduled the employee to work. Under the latest guidance, employees can only use the emergency paid sick leave for covered reasons and only when scheduled to work.

Update 9/21/2020: Effective September 11, 2020, employees and independent contractors are protected against adverse actions due to COVID-19. The Office of Labor Standards Enforcement provided implementation guidance for employers. See the City & County of San Francisco Public Health Emergency Leave Poster.

Employers within San Francisco city limits must provide Public Health Emergency Leave Ordinance (PHELO) leave to:

  • Full-time employees, regardless of how long they’ve been employed
  • Part-time employees, regardless of how long they’ve been employed
  • Temporary employees, regardless of how long they’ve been employed
  • Workers that perform labor or services within the city, which can include employees that live inside city limits but work from home 56 or more hours/year or employees that work outside of the city but stop inside city limits to perform work, like deliveries, for 56 or more hours/year
  • Employees considered employees under California law and have worked in San Francisco

 

Health care or emergency response employers may choose to limit the available leave through PHELO but at minimum, these employees must be able to use leave if they can’t telework or get to work because of COVID-19-like symptoms, are waiting on a COVID-19 diagnosis, and don’t meet CDC criteria for health care workers to return to work.

Full-time employees that work 40 hours per week as of February 25, 2020, are eligible for 80 hours of paid leave through PHELO. Part-time employees are eligible for that equals the average number of hours over a two-week period from six months prior to February 25, 2020 (including any taken leave time). Leave may be taken by an employee at any time as long as the hours of leave don’t exceed the average number of worked hours over a one-week period in the prior 6 months leading up to February 25, 2020.

Employers must distribute the notice provided by the Office of Labor Standards in a manner that will reach all employees, whether it be online or by physically posting the notice in a conspicuous place. The notice must be in all languages spoken by at least 5% of the workforce.

Additional Resources:

New: City & County of San Francisco Public Health Emergency Leave Poster

New: San Francisco COVID-Related Employment Protections Ordinance Implementation Guidance September 11, 2020

Emergency Ordinance – COVID-Related Employment Protections

Emergency Ordinance: Public Health Emergency Leave File No. 200355

San Francisco Public Health Emergency Leave Notice

Updated: San Francisco Public Health Emergency Leave Ordinance FAQs (September 18, 2020)

San Francisco Coronavirus COVID-19 Guidance and Resources

 

San Jose Provides Emergency Paid Sick Leave

Update 1/8/21: Under a revised San Jose Urgency Ordinance, the city’s COVID-19 paid sick leave has been extended to June 30, 2021. The law took immediate effect on January 5, 2021, and is retroactive to January 1, 2021. It applies to all employers now, not just those who don’t fall under the FFCRA paid sick leave benefits.

From April 7, 2020, to December 31, 2020, an emergency order has mandated that San Jose private employers provide an additional two weeks of paid sick leave to employees during the COVID-19 public health emergency.

Who: This order covers employers that don’t fall under the FFCRA paid sick leave benefits. Employers with 500 or more employees and small employers with 50 or fewer employees are covered by the San Jose emergency order. Employees who qualify for the paid sick leave must be considered essential and have to leave their homes to conduct their work. Employees who work from home aren’t eligible.

Reasons for using emergency paid sick leave include if the employee:

  • Has been asked to quarantine by a public health official or government order,
  • Is experiencing COVID-19 symptoms and is seeking a medical diagnosis,
  • Must care for a family member that has been instructed to quarantine by a public health official or government order, or
  • Must care for a family member whose day care provider has closed.

Employers must provide 80 hours of paid sick leave to full-time employees. Part-time employees are eligible for paid sick leave hours that equal the number of worked hours over two weeks, using the average number of hours worked per day during six months leading up to the emergency order effective date (April 2, 2020).

Total paid sick leave that an employee can use for their own care is capped at $511 per day and $5,110 overall. Paid out paid sick leave is capped at $200 per day and $2,000 total if the employee is caring for someone else.

Recordkeeping: Employers must record and maintain documentation of employees using time under the paid sick leave ordinance. Recorded information includes: employee’s name, the date(s) of leave requested, the reason for leave, and a statement on why the employee is unable to work because of the reason for leave.

Exemptions exist for employers who already provide the same amount of personal or paid leave to their employees.

Additional Resources:

San Jose Urgency Ordinance No. 30390

San Jose Know Your Sick Leave Ordinance Rights

San Jose COVID-19 Sick Leave Ordinance FAQs

San Jose Urgency COVID-19 Paid Sick Leave Ordinance Website

 

UPDATED 3/11/21: San Mateo Emergency Paid Sick Leave Extended

Updated 3/11/21: Ordinance 4829 (outlined below) was extended to June 30, 2021.

Who:

  • Employers with 500+ employees
  • Employees who work in the county’s unincorporated areas since January 1, 2020
  • Food sector workers who are covered by California Executive Order N-51-20 are excluded

When: July 8, 2020 to December 31, 2020

What: San Mateo County adopted an emergency ordinance to require large employers to provide temporary emergency paid sick leave related to COVID-19. The ordinance is aimed at larger employers that aren’t covered by the Families First Coronavirus Response Act (FFCRA).

Full-time employees are entitled to 80 hours of supplemental paid sick leave (SPSL). Part-time employees are entitled to SPSL that equals no more than the employee’s average number of hours worked during a 2-week period, calculated between January 1, 2020 through July 7, 2020. SPSL must be paid at the employee’s regular rate of pay, up to $511/day or $5,110 total, regardless of the reason.

Employers must provide SPSL following the employee’s written request if the individual can’t work or telework based upon the reasons outlined under the FFCRA. The emergency ordinance specifies that the request must be made in writing, whether through email or text.

Exemptions exist for employees who are health care providers, aviation security workers, or emergency responders, as defined by the FFCRA.

If employers provided additional paid sick leave between March 17, 2020 and June 30, 2020, they may choose to use that leave time as credit against the number of SPSL hours required by the ordinance.

Employers can’t retaliate against employees that exercise their rights under the ordinance.

Additional Resources

County of San Mateo Emergency Sick Leave OrdinanceCounty of San Mateo

 

UPDATED 4/27/21: Santa Rosa Emergency Paid Sick Leave

Update 4/27/21: The City extended the COVID-19 Paid Sick Leave Notice Poster to September 30, 2021.

Updated 2/2/21: The City Council voted to extend the emergency paid sick leave ordinance that expired at the end of 2020, making the ordinance and its amendments effective February 2, 2021 – March 31, 2021, or until federal tax credits under the FFCRA expire. The amendments don’t work retroactively; employers must comply starting February 2, 2021.

Among the amendments:

  • The amount of leave remains the same from 2020, a new bank of leave isn’t available and whatever leave remained from 2020 is still available now. If an employee used all available leave last year, employers don’t need to provide more.
  • Employers that were required to provide paid leave under the FFCRA in 2020, must provide Santa Rosa Emergency Paid Sick Leave. There is a partial exemption for employers with 49 or less employees– they don’t need to provide leave for childcare for valid businesses reasons.
  • To address telework/remote work scenarios, the 5 covered uses of leave remain, but employees may use the leave whenever they are unable to work for those 5 reasons.
  • The pay rate now aligns with the FFCRA’s approach to regular rate of pay: up to $511/day or $5,100 overall for a qualifying personal reason and two-thirds their regular rate (up to $200/day or $2000 overall) when they need to care for someone else or for school closures. This approach is applicable to all employers, regardless of size. Full-time employees qualify for 80 hours of paid sick leave and part time employees paid sick leave is prorated.
  • Leave abuse. The amendment includes language that employers may deny leave requests if the request can be proven to violate a health order.
  • Notice requirements. Employers must give each employee a written notice of the individual’s rights under the ordinance. Employers must provide this notice to new employees within a week of the person’s start date.

 

Background:

Who: All private employers, including those covered by the federal Emergency Paid Sick leave Act, and employers with 500+ employees.

When: July 7, 2020 to December 31, 2020, with a possibility for extension

What: Santa Rosa’s City Council passed an emergency ordinance requiring employers provide up to 80 hours of temporary sick leave to full-time employees. Part-time employees are entitled to SPSL that equals no more than the employee’s average number of hours worked during a 2-week period.

The ordinance doesn’t apply to employers that have provided employees, as of July 7, 2020, with some combination of paid personal leave or paid sick leave that the ordinance requires. Employers that provide paid sick leave that amounts to less than the emergency ordinance must comply with the new law. This temporary leave is to be in addition to the leave that the employer already provides.

The reasons for use of the temporary paid sick leave are like those outlined by the FFCRA. The leave must be paid at the employee’s regular rate of pay, up to $511/day or $5,110 total. Employees aren’t required to provide written notes from health care professional for employer documentation.

Employers can’t require an employee to find a replacement work as a condition of using temporary paid sick leave and can’t discipline or dock attendance points for an employee’s use of the leave. Employers also can’t retaliate against employees that exercise their rights under the ordinance.

Additional Resources

NEW: Santa Rosa COVID-19 Resources

NEW: COVID-19 Paid Sick Leave Ordinance

NEW: 2021 Employer Paid Sick Ordinance Poster

City of Santa Rosa Urgency Ordinance

Santa Rosa Temporary Sick Leave Ordinance for COVID-19

 

Updated 2/3/21: Sonoma County Emergency Paid Sick Leave

Who: Employers with 500 or more employees, including health care workers

When: August 18, 2020 to December 31, 2020

Update 2/3/21: Taking effect on January 26, 2021, Revised Ordinance 2021-035 extended Sonoma County’s COVID-19 paid sick leave to June 30, 2021. No other provisions have changed other than the extension.

What: Under County Ordinance No. 2020-0815, Sonoma County employees who work for employers who aren’t covered under the FFCRA (i.e., those with 500 or more employees) are entitled to 80 hours of emergency paid sick leave if they are full-time, work at least 40 hours per week, and have a qualifying reason. Part-time employees are entitled to the average hours in a two-week period.

Reasons for using the emergency paid sick leave include if the employee:

  • Has been asked to quarantine by a health care provider or government order,
  • Is experiencing COVID-19 symptoms and is seeking a medical diagnosis,
  • Must care for a family member that has been instructed to quarantine by a public health official, health care provider, or government order, or
  • Must care for a family member whose senior care, school, or childcare provider has closed.

 

Employees are paid at their regular rate of pay (as calculated per the FFCRA) with a cap of $511 per day and $5,110 total for all types of qualifying reasons for leave.

The Ordinance also covers employees who work more than 2 hours in unincorporated parts of the County, not including Santa Rosa employees.

Employers are required to notify employees about their rights to supplemental paid sick leave by posting a notice in English and Spanish either in an email, on an intranet, or in the workplace.

Additional Resources

2020-0815

Sonoma County COVID-19 Resources

 

Update 5/24/21: City of Los Angeles Passes Supplemental Paid Sick Leave; Now Includes Vaccination

Updated 5/28/21: The county passed an urgency ordinance on May 18, 2021, to provide additional paid sick leave for employees in unincorporated areas of the county to get their COVID-19 vaccination. The Ordinance is effective immediately and is retroactive to January 1, 2021, and through August 31, 2021.

Employees who have used all of their time off under California’s Supplemental Paid Sick Leave (SPSL) and work in the unincorporated parts of the county, are now eligible for new paid leave to receive their vaccine. Full-time employees who work at least 40 hours/week in the 2 weeks before taking leave, are eligible for up to 4 hours of additional leave, per vaccination. Part-time employees are entitled to a prorated portion of paid leave.

Qualifying reasons to use supplemental paid leave for vaccination includes traveling to and from an appointment, receiving the vaccine, and recovering from symptoms related to the vaccine. Employers may ask for written verification of the vaccine receipt in order for the employee to receive COVID-19 Vaccine Leave.

Notifications. Employers must post a written notice, once it becomes available by the Los Angeles County Department of Consumer and Business Affairs.

Record-keeping. Employers must keep records, including payroll records for 4 years.

Retaliation. Employers are prohibited from terminating, reducing pay, discriminating, or retaliating against an employee for asking to use the supplemental paid leave.

Effective April 7, 2020, employers in the city of Los Angeles, who have more than 500 employees or more than 2,000 employees across the U.S., must provide supplemental paid sick leave of up to 80 hours if the employee has been asked to quarantine by a public health official, is a member of a high-risk population, must care for a family member that has been instructed to quarantine, or they need to care for a family members whose day care has closed. This rule also includes employees who may live outside of LA but work inside city limits.

Note that there are exemptions from this rule like critical delivery service employees, new businesses, or closed businesses. Additionally, a collective bargaining agreement may supersede this rule and legal counsel should be consulted.

Pay Rate: Is the amount equivalent to an employee’s average two-week pay during the time between January 1, 2020 through April 28, 2020, maxing out at $511 per day and $5,110 overall.

Documenting and Recordkeeping: Employers can’t require medical notes or other official documentation for the leave taken, they may request a verbal or written general reason for taking the leave, without getting into detailed medical information. Employers must keep track of the leave taken including the employee’s name, dates requested, general reason, approval or denial, and the reason for denial if applicable.

Additional Resources

Public Order Under the City of Los Angeles Emergency Authority Supplemental Paid Sick Leave Due to COVID-19 (May 19, 2020)

City of Los Angeles Office of Wage COVID-19 Resources

City Los Angeles Supplement Paid Sick Leave Rules and Regulations

City of Los Angeles Paid Sick Leave Website

City of Los Angeles COVID-19 Orders

 

UPDATED 1/30/21: Los Angeles County Approves Supplemental Paid Sick Leave for Large Employers

Update 1/30/21: On January 26, 2021, Los Angeles County passed an Ordinance for supplemental paid sick leave that amends the previous ordinance that expired on December 31, 2020.

The new ordinance is effective immediately and retroactive to January 1, 2021. It lasts until two weeks after the local COVID-19 local emergency has ended and ratified by the County Board.

The new ordinance is different and includes the following changes:

  • Applies to all employers in the unincorporated areas of the county, regardless of size.
  • Full-time employees that work 40 hours qualify for 80 hours of SPSL, however, if any of the Supplemental Paid Sick Leave (SPSL) was used under FFCRA or the original SPSL for a covered reason, employees will not accrue additional leave.
  • Part-time employees will receive SPSL leave not greater than their two-week average pay.
  • Qualifying reasons for leave remain the same (see below).
  • The leave is capped at $511/day or $5,110 total.

Effective April 29, 2020, businesses located in Los Angeles County, and with 500 or more employees, must provide paid sick leave until December 31, 2020. This rule covers employees on April 28, 2020, who conduct any work or services within the unincorporated parts of the county. Employees are entitled to supplemental paid sick leave retroactive to March 31, 2020, if one of the qualifying COVID-19 reasons are met.

Employees that work 40 hours/week or are classified as full-time employees receive 80 hours of leave, and their pay rate is based on the employees’ highest average of two-week pay during the period between January 1, 2020 and April 28, 2020.

Part-time employees that work less than 40 hours should receive an amount of leave that is no greater than their average of two-week pay during the period between January 1, 2020 and April 28, 2020.

Employers can’t require that employees use other paid or unpaid leave or vacation time, instead of supplemental paid sick leave (SPSL).

Reasons for using supplemental sick leave include if the employee:

  • Has been asked to quarantine by a public health official or government order,
  • Is a member of a high-risk population,
  • Must care for a family member that has been instructed to quarantine by a public health official, or
  • Must care for a family member whose day care provider has closed.

 

Recordkeeping and Documentation: Employers may require a doctor’s note or other documentation to support the reason for SPSL. Employers must provide SPSL when employees make their written requests.

Rate of Pay: Employers should use an employee’s average rate when calculating pay rates for SPSL. The rule does impose a daily limit of $511 and overall amount of $5,110.

Note that there are exemptions from this rule like for food sector workers who qualify for a different state rule enacted by Governor Newsom, health care providers and emergency responders.

Additional Resources

Los Angeles Paid Sick Leave and COVID-19 Guidance (June 11, 2020)

Public Order Under City of Los Angeles Emergency Authority Issue Date: April 7, 2020 (Updated May 19, 2020)

Los Angeles Rules & Regulations Implementing The Public Order On Supplemental Paid Sick Leave Due to COVID 19 (May 26, 2020)

Los Angeles County Paid Sick Leave Ordinance

Los Angeles County Paid Sick Leave Interim Guidance

 

UPDATED 1/31/21: Oakland Passes Emergency Paid Sick Leave for Employees

Update 1/31/21: On January 19, 2021, Oakland approved Ordinance 21-0019 for emergency paid sick leave in Oakland that is retroactive to December 31, 2020. Employees can use any paid sick leave time that was not already used. There is an additional calculation for employees who worked for less than 14 days between January 1, 2021, through January 21, 2021, an amount that equals the number of hours the employee worked over the 14 days.

Update 9/21/20: New resources added including Protecting Workers and Communities During a Pandemic: COVID-19 Eermgency Paid Sick Leave Ordinance (English and Spanish) and Frequently Asked Questions Regarding Oakland’s Protecting Workers and Communities During a Pandemic – COVID-19 Emergency Paid Sick Leave Ordinance

Effective May 12, 2020, Oakland employers must provide paid sick leave to employees who have COVID-19-related reasons:

  • Mainly this rule is intended to support employers with 500 or more employees who aren’t covered by the FFCRA.
  • Employers who qualify for leave under the FFCRA are still subject to this law but may credit their total FFCRA paid sick leave hours against their obligation under this ordinance.
  • Employers with less than 50 employees are exempt from this rule.

 

Emergency sick leave is calculated by the hours worked within Oakland’s city limits between February 3, 2020, and March 4, 2020:

  • Employees who worked at least 40 hours between February 3, 2020 and March 4, 2020 or are considered full-time employees, are eligible for 80 hours of emergency paid sick leave.
  • Employees who have worked less than 40 hours during the same time period are eligible for leave that is based on the number of hours they worked during a 14-day period between February 3, 2020 and March 4, 2020. The 14 days must be the 14 days with the highest number of hours worked within the City of Oakland during the period of February 3, 2020 through March 4, 2020.

 

Reasons for using supplemental sick leave include if the employee:

  • Is exhibiting symptoms of COVID-19 and is seeking diagnosis, or another similar condition as directed by the U.S. Department of Health and Human Services,
  • Has been asked to quarantine by a public health official or government order,
  • Is a member of a high-risk population,
  • Must care for a family member that has been instructed to quarantine by a public health official
  • Must care for a family member whose day care provider has closed, or
  • If the employee is unable to telework or work because they are at high-risk or they are caring for a family member who tested positive for COVID-19 or because they have COVID-19.

 

Documentation: An employer can’t require doctor’s notes or other documentation unless it’s to verify the condition that makes the employee part of a high-risk population. In this case, the employee doesn’t need to disclose the condition, just that they are at high-risk.

Employees can use intermittent leave in one-hour increments; employers can’t require employees to use the leave in greater than 1-hour increments.

Rate of Pay: Depending on the qualifying reasons for the leave, employers, including those covered by the FFCRA, must pay their employees at 100% of the employee’s normal wages, capped at $511/day and a total cap of $5,110, or two-thirds of the employee’s regular rate of pay, capped at $200 per day and $2,000 overall. Further details can be found on the FFCRA poster.

Note that there are exemptions from this rule like emergency responders, health care providers, and employers who provide more than 160 hours of paid personal leave already (there are additional requirements for these types of employers). Additionally, a collective bargaining agreement may supersede this rule and legal counsel should be consulted.

Posting Notices: Employers must provide a notice to employees within 3 days of the city releasing the official notice. The notice must be provided to employees in each language spoken by more than 10% of the employer’s workforce.

Expiration: December 31, 2020.

Additional Resources

Emergency Paid Sick Leave for Oakland Employees During COVID-19 Pandemic Ordinance

COVID-19 (Coronavirus Disease) and Oakland’s Sick Leave Law Guide

Oakland Coronavirus 2019 (COVID-19) Business and Worker Resources

 

Long Beach Supplemental Paid Sick Leave Ordinance

Effective May 19, 2020, Long Beach passed Paid Supplemental Sick Leave emergency ordinance. The emergency order applies to private employers with more than 500 employees nationwide and covers and covers employees that work within the city limits of Long Beach.

Reasons for using emergency paid sick leave include if the employee:

  • Has been asked to quarantine by a public health official or government order;
  • Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  • Must care for a family member that has been instructed to quarantine by a public health official or government order; or
  • Must care for a family member whose day care provider has closed.

 

Employers may require a reason for the paid sick leave being used but can’t require a doctor’s note or other official documentation for using the leave.

Calculation: Full-time employees are entitled to 80 hours of paid sick leave. Part-time employees are eligible for paid sick leave hours that equal the average number of hours they work in a two-week period.

Pay Rate: Employers can pay employees for paid leave at their regular rate of pay, not to exceed $511/day or $5,110 overall. Employers may pay employees, who are using paid sick leave to care for another individual, two-thirds their regular pay rate, not to exceed $200/day or a total of $2,000.

Exemptions exist for employees who can work from home and are healthy in addition to health care providers, government agencies, the employer already provides a general leave of 160 hours or more of paid leave per year, or if a collective bargaining agreement already provides for COVID-19 sick leave. Future collective bargaining agreements can waive the PSSL if employees acknowledge their PSSL and waive their rights to the leave.

Additional Resources

Long Beach Ordinance No. 20-042

 

California HR and Workforce Rules and Regulations

Below is a round-up of new and changing state regulations for employers navigating workforce-related policies and procedures. Although we have provided some information and recommendations, you should contact your legal counsel for further advice.

California Releases Fair Chance Act Toolkit

Who: California employers with five or more employees

When: Effective immediately

What: On October 20, 2021, the California Department of Fair Employment and Housing released a collection of online resources titled “Fair Chance Act: Guidance for California Employers and Job Applicants.” The purpose of the toolkit is to help employers comply with the Fair Chance Act, which went into effect on January 1, 2018. Also known as a “Ban the Box” law, the Fair Chance Act helps ex-offenders obtain employment by prohibiting employers from requesting a potential employee’s criminal history on a job application.

The new toolkit consists of several resources, including, but not limited to:

  • Sample forms that help employers follow required procedures, along with a guide for how to use the forms;
  • A statement employers can use in job advertisements and applications;
  • Answers to frequently asked questions (FAQs);
  • Links to sites where a person can report a violation or file a complaint; and
  • A video that explains the Fair Chance Act.

 

The Department plans to release an interactive training program and an interactive app in 2022.

How:

  • Review your hiring policies, procedures, and practices to ensure they comply with the Fair Chance Act requirements.

 

Additional Resources:

Fair Chance Act: Guidance for California Employers and Job Applicants

DFEH Launches Affirmative Enforcement of the California Fair Chance Act (Press Release October 20, 2021)

 

Year-End Deadline Approaches for California’s Board of Directors Diversity Requirement

Who:

  • AB 979: California publicly held corporations with outstanding shares listed on a major U.S. stock exchange
  • SB 826: California domestic general corporations and foreign public corporations whose principal offices are located in California

When: Deadline of December 31, 2021

What: By December 31, 2021, all covered California corporations must comply with Senate Bill 826 and Assembly Bill 979, which promote diversity on boards of directors. SB 826, which requires representation by women, applies to domestic general corporations and foreign public corporations whose principal offices are located in California. AB 979, which requires representation by underrepresented communities, applies to publicly held corporations with outstanding shares listed on a major U.S. stock exchange. AB 979 was signed into law on September 30, 2020, and SB 826 was signed into law on September 30, 2018. –

By December 31, 2021, SB 826 requires companies with six or more directors on their boards to have at least three of those directors be female. When the board consists of five directors, at least two of them must be female.

AB 979 calls for representation of underrepresented communities, defined as people who self-identify as Black, African-American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, Alaska Native, or gay, lesbian, bisexual, or transgender. Covered corporations must have at least one director from an underrepresented community on their board of directors by the December 31, 2021 deadline.

Violations are subject to fines up to $100,000 for a first violation and $300,000 for second and subsequent violations.

How:

  • Ensure your policies and board composition comply with the law.

 

Additional Resources:

SB 826

AB 979

 

 

Coming in 2022: California Law Will Presume Enterprise-Wide Violations for Multi-Site Workplaces

On September 27, 2021, Governor Gavin Newsom signed SB 606. The new law is expected to take effect January 1, 2022, and will directly impact businesses that have multiple worksites.

The new law gives Cal/OSHA the authority to issue a citation for an entire business, if one worksite has a written policy or procedure that isn’t compliant or if the state agency finds a violating pattern or common practice at more than worksite. In other words, the law presumes that if there is a violation at one worksite that the same violation is occurring at all company locations or worksites. Enterprise-wide violations could cost companies up to $134,334 per violation.

The law also creates a category for “egregious violations,” if Cal/OSHA determines that one of the following seven circumstances is true:

  1. The business consciously, intentionally, knowingly, or through voluntary action/inaction made no “reasonable effort” to fix a known violation
  2. The violation(s) resulted in a fatality, catastrophe (defined as inpatient hospitalization of three or more employees resulting from a workplace injury, exposure, or illness), a large number of injuries or illnesses. 
  3. Persistent high rates of injuries or illness as a result of a violation(s).
  4. Extensive prior history of violations
  5. The business has intentionally disregarded its health and safety responsibilities
  6. The employer’s conduct is determined to be a display of bad faith in performing their duties.
  7. The employer has committed a large number of violations that significantly undermine the effectiveness of the health and safety program in place.

Egregious violations can be issued repeatedly if the underlying conduct occurred within the last 5 years.

The law also gives Cal/OSHA the authority to seek legal action to restrict certain uses or operations of a business where it has grounds to issue a citation. Previously, Cal/OSHA only had the ability to do this in the case where there was “a serious menace” to the lives or safety of people at the workplace.

During an inspection, Cal/OSHA will have the authority to issue subpoenas if employers don’t promptly provide any requested information and enforce the subpoena if the employer fails to provide the requested information in a reasonable time, as determined by Cal/OSHA.

What Should You Do?

  • Review all of your workplace policies and procedures (across locations), ensure they are are up to date and compliant with Cal/OSHA, including your Injury and Illness Prevention Program
  • If you need to make enterprise-wide changes, be sure to communicate those changes to your locations, train them on what they need to know, and ensure their employees are also trained on the changes.
  • Seek legal counsel as necessary to ensure any changes you make are compliant with all laws and regulations.

 

Additional Resources

SB 606

 

California Court Reinstates Prohibition of Mandatory Arbitration Agreements

Who: California employers

When: Effective immediately

What: On September 15, 2021, the U.S. Court of Appeals for the Ninth Circuit reversed in part a preliminary injunction against California Labor Code Section 432.6, which prohibits arbitration in the context of employment. The outcome is that employers may incur criminal and civil penalties for asking employees or applicants to agree to arbitration of any future disputes.

The law applies to arbitration agreements entered into on or after January 1, 2020. The Court carved out an exception for agreements executed by the employee or applicant, which means that signed agreements are enforceable and not subject to penalties. Employers may still ask employees to waive their rights to a court action, but if they do—and the employee doesn’t sign the agreement—the employer is subject to penalties.

How:

  • Consult with counsel to determine the legality of your arbitration agreements.

 

Additional Resources:

AB 51

U.S. Chamber of Commerce v. Bonta, Ninth Circuit Case No. 20-15291

 

California Clarifies Premium Pay for Noncompliant Break Periods

Who: California employers

When: Effective immediately

What: On July 15, 2021, the California Supreme Court ruled on the definition of “regular rate of compensation” under California Labor Code section 226.7(c). The law states an employer must pay an employee an extra hour of pay at the employee’s regular rate of compensation for each workday in which the employer does not provide a legally required meal, rest, or recovery period.

In Ferra v. Loews Hollywood Hotel, LLC, the plaintiff asserted that she had been underpaid for non-compliant meal and rest breaks. The Court agreed, saying that for purposes of paying premium pay for such breaks, the regular rate of compensation must include all non-discretionary payments for work performed by that employee, not just the employee’s hourly wages. Nondiscretionary payments are those made pursuant to a prior contract or agreement and include but are not limited to incentives, bonuses, and commissions.

Further, the Court applied the ruling retroactively, which means previous violations must be paid in accordance with the clarified definition of the regular rate of compensation.

How:

  • Confirm that you are using the correct method to calculate premium pay, and update your policies as needed to comply with the ruling.
  • Determine if you need to adjust payments you made previously for noncompliant break periods.

 

Additional Resources:

Ferra v. Loews Hollywood Hotel, LLC

 

Deadline June 30: California Retirement Plan Deadline Approaches

Who: California employers with 50 or more employees

When: Deadline of June 30, 2021

What: California employers with 50 or more employees must have a retirement plan in place for employees by June 30, 2021. Employers may choose to offer a private-market option, such as a 401(k) plan, in which case they do not need to enroll in CalSavers. Or employers may offer the state-run CalSavers Roth IRA program.

Either way, covered employers must officially register for CalSavers or claim exemption by the deadline. Employers who do not register are subject to a penalty of $250 per eligible employee, plus an additional penalty of $500 per eligible employee if still out of compliance 180 days after receiving notification of failure to comply.

Businesses with 5 to 50 employees have until June 30, 2022 to comply.

How:

 

Additional Resources:

Your Money, Your Future

Employer Eligibility

 

Effective Immediately: Rounding Time for Employee Meal Breaks Ends

Who: California employers

When: Effective immediately

What: On February 25, 2021, the California Supreme Court ruled that employers may not round time punches for employees’ meal periods. Wage Orders require that meal period violations trigger the obligation to pay meal-period premiums. The Court also clarified that there is a rebuttable presumption of liability when time records show short, delayed, or missed meal periods.

The ruling also emphasizes the need for employers to keep accurate time records and to strictly comply with the meal-period requirements. Even “minor” infractions, such as a 28-minute or 29-minute meal period when it should be 30 minutes, are unacceptable and trigger the obligation for meal-period premium pay.

How:

  • Review and update your policies, and consult with legal counsel as needed to comply with the new ruling.
  • Ensure that your time tracking software or time card attestations accurately reflect meal periods and do not round.
  • Notify employees of their right to timely and complete meal periods.

 

Additional Resources:

California Supreme Court Ruling

 

Effective Immediately: New App to Help Employee Navigate Job-Protected Leave for Bonding with a Child or Pregnancy-Related Disability

Who: Private California employers with 5 or more employees

When: Effective immediately

What: On March 24, 2021, the California Department of Fair Employment and Housing (DFEH) introduced a new app to help provide guidance to California employees who want to obtain job-protected leave to bond with a new child or for a pregnancy-related disability. The interactive app is free to download and use.

The app helps to simplify a set of complex laws that could be a source of confusion for the employee. It asks a series of questions and then generates a report that summarizes eligibility for leave, along with the amount of leave to which the employee may be entitled. The report also explains how the employee can take leave and their obligations to the employer, plus answers FAQs and provides links to additional resources.

Employers may use this app to determine if their policies are consistent with current California law. Employers have the option of asking an employee who uses the app for a copy of the eligibility report at the time the employee seeks leave.

How:

Consider notifying employees that the new app is available.

Additional Resources:

California New-Parents Rights Advisor App

Family, Medical, and Pregnancy Disability Leave for Employees in California Toolkit

 

Due March 31, with Possible Extension: Pay Data Portal Opens and User Guide Published

Who: California employers with 100 or more employees who are subject to federal EEO-1 reporting

When: Due March 31, 2021; may be extended to April 30, 2021 if you submit an enforcement referral

What: On February 1, 2021, the California Department of Fair Employment and Housing (DFEH) published a detailed California Pay Data Reporting Portal User Guide to assist employers with SB 973, Pay Day Reporting Law. It includes report templates and additional guidance on how to comply with the law. The guide discusses the structure of the pay data report, how to use the submission portal, and how to build the pay data report. There is also an option to complete a fillable form rather than build a report in Excel or CSV format.

Because the pay data reporting requirement is new this year, and because the COVID-19 pandemic may cause reporting difficulties or delays for some employers, the DFEH is offering a deferral option. Employers may complete an “Enforcement Deferral Request” by March 31, 2021, which will give them an extra month to complete their pay data reporting.

Also in February, the DFEH opened the California Pay Data Reporting Portal.

How:

  • Use the new guide to help you build the pay data report, or collect the data for the fillable form.
  • Submit pay data via the online portal by March 31, 2021, or apply for the one-month extension by this same date if you are unable to meet the deadline due to COVID-19.

 

Additional Resources:

California Pay Data Reporting Portal

California Pay Data Reporting Portal User Guide

Pay Data Reporting FAQs

Request for Enforcement Deferral Period

California Pay Data Reporting Website

 

Submit California Pay Data by End of March 2021

Who: California private employers with 100 or more employees

When: Due March 31, 2021

What: To comply with Senate Bill 973 (Employers: annual report: pay data), covered California employers must submit their pay data to the Department of Fair Employment and Housing (DFEH) by March 31, 2021. The data required resembles what is submitted on an EEO-1 report and includes demographic data for 10 job title categories and for employees whose annual earnings fall in certain pay ranges. Employers choose one pay period between October 1 and December 31 of 2020 as the “Snapshot Period” for which they will report.

The pay-data submission requirement applies only the employers that file EEO-1 reports. The DFEH will publish a user guide and Excel reporting template on February 1, 2021. The Pay Reporting Portal will be available on February 15, 2021.

How:

  • Submit your pay data to the DFEH Pay Reporting Portal by March 31, 2021.
  • Monitor the DFEH California Pay Data Reporting website for the release of the user guide, Excel template, CSV example, and updated FAQs.

 

Additional Resources:

SB 973

California Pay Data Reporting Website

Pay Data Reporting FAQs

By March 31: Employers Must File Equal Pay Reports

Who: California private employers with 100 or more employees

When: Due March 31, 2021

What: To comply with Senate Bill 973 (Employers: annual report: pay data), covered California employers must submit their pay data to the Department of Fair Employment and Housing (DFEH) by March 31, 2021. The data required resembles what is submitted on an EEO-1 report and includes demographic data for 10 job title categories and for employees whose annual earnings fall in certain pay ranges. Employers choose one pay period between October 1 and December 31 of 2020 as the “Snapshot Period” for which they will report.

The pay-data submission requirement applies only the employers that file EEO-1 reports. The DFEH will publish a user guide and Excel reporting template on February 1, 2021. The Pay Reporting Portal will be available on February 15, 2021.

How:

  • Submit your pay data to the DFEH Pay Reporting Portal by March 31, 2021.
  • Monitor the DFEH California Pay Data Reporting website for the release of the user guide, Excel template, CSV example, and updated FAQs.

 

Additional Resources:

SB 973

California Pay Data Reporting Website

Pay Data Reporting FAQs

By March 31: Employers Must File Equal Pay Reports

 

 

California Supreme Court Rules ABC Test is Retroactive

 

Who: California employers

When: Effective immediately

What: On January 14, 2021, the California Supreme Court ruled that the ABC test used to classify a worker as an employee or independent contractor is retroactive to before April 2018, which is when the related Dynamex case was decided. In that case, the court established the three-factor ABC test to classify a worker in claims arising under California’s Wage Orders.

When applying the ABC test, a worker is presumed to be an employee unless the employer can prove that the worker:

  1. Is free from control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
  2. Performs work that is outside the usual course of the hiring entity’s business; and
  3. Is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

 

If the employer can prove all of those conditions apply to the worker, the employer may classify the worker as an independent contractor. With the most recent decision, Vasquez v. Jan-Pro Franchising, Inc., 2021 WL 127201 (Cal.),(Jan 14, 2021)(“Vasquez”), the court determined that the Dynamex decision applies retroactively, subject to the statute of limitations.

There are some exceptions to the ABC test, as carved out in Assembly Bill 5 and related legislation and in Proposition 22, which covers app-based drivers and delivery workers. In those industries, employers may apply the less stringent Borello standard to classify their workers.

How:

  • Consult with legal counsel if you have questions about whether you are in alignment with the Vasquez decision and to determine if your worker relationships fit under the exceptions in Assembly Bill 5 and Proposition 22.

 

January 8: California Releases Family and Medical Leave Tool Kit

Who: Private California employers with 5 or more employees

When: Effective immediately

What: The California Department of Fair Employment and Housing (DFEH) released a tool kit on January 8, 2021 that addresses the recently expanded benefits under the California Family Rights Act (CFRA). The changes were effective January 1 2021 and include Family and Medical Leave and Pregnancy Disability Leave.

The tool kit is electronic and housed on the DFEH website. It gives employers and employees access to required notification posters, fact sheets, and certification forms in several languages, plus resources such as quick reference guides that explain the new benefits. DFEH will also soon release an app for workers who are pregnant or new parents.

How:

  • Inform HR personnel and supervisors that California Department of Fair Employment and Housing (DFEH) released a Family and Medical Leave Tool Kit.
  • Post the required employee notifications for Family and Medical Leave and Pregnancy Disability Leave.
  • If you have an employee handbook, create or update your policies to reflect the changes in the law.
  • Update employee-facing new hire and leave documents to reflect the changes in the law.

 

Additional Resources:

DFEH 100 21 CFRA and Pregnancy Disability Leave Notice

DFEH E09P Your Rights and Obligations as a Pregnant Employee

DFEH Family, Medical, and Pregnancy Disability Leave for Employees in CaliforniaDFEH Family, Medical, and Pregnancy Disability Leave for Employees in California Tool Kit

 

 

By January 1: Sexual Harassment Prevention Training Due

Who: California employers with five or more employees

When: Training deadline January 1, 2021

What: California’s Senate Bill 1343 requires employers with five or more employees to provide interactive sexual harassment prevention training to their employees. The requirement is two hours of training for supervisory employees and one hour for nonsupervisory employees. The first training is due by January 1, 2021, which Senate Bill 778 postpones from the original due date of January 1, 2020. Training is due every two years thereafter. New employees and newly promoted managers must receive training within six months of hire/promotion.

The California Department of Fair Employment and Housing (DFEH) provides free online sexual harassment–prevention training programs for supervisory and nonsupervisory employees. Employers must keep a record of their employees’ participation in sexual harassment prevention training for at least two years, including employee’s name, date attended, a sign-in sheet, a copy of certificates issued, a description of the training, the trainer’s name, and a copy of written and recorded training materials.

How:

  • Update policies related to sexual harassment–prevention training as needed to be in compliance with the law.
  • Distribute the required harassment-prevention policy to employees.
  • Post the Sexual Harassment Prevention Poster and provide to employees. You may also give the Sexual Harassment Fact Sheet to employees to meet the notification requirements.
  • Provide the required training by January 1, 2021.
  • Maintain associated attendance records.

 

Additional Resources:

SB-1343 Sexual Harassment Training Requirements for Employers

SB 778 Amends Government Code Section 12950.1 and Extends the Sexual Harassment Training Deadline

California Government Code Section 12950.1

Sexual Harassment Prevention Training FAQ for Employers

Sexual Harassment Prevention Training FAQ for Employees

Sexual Harassment Prevention Poster

Sexual Harassment Fact Sheet

DFEH Council Employment Regulations Regarding Sexual Harassment Prevention Training

 

January 1: Family Rights Act Benefits Expand

Who: Private California employers with 5 or more employees

When: Effective January 1, 2021

What: With the passage of State Bill 1383, California has expanded benefits under the California Family Rights Act (CFRA). The Act now requires employers with 5 or more employers to give employees up to 12 weeks of unpaid leave each 12-month period for family and medical leave. Employees are covered under the law if they have worked at least 1,250 hours and for 12 months in the 12 months prior to taking leave.

The amendments:

  • Eliminate the requirement that the employee work within 75 miles of the worksite;
  • Expand the definition of “family member,” which now includes siblings, grandparents, grandchildren, and domestic partners; and
  • Expand the definition of “child,” which now includes all adult children and children of a domestic partner.

 

Additional changes to the CRFA address the situation where two employees work for the same company: The employer must now provide both employees 12 weeks for leave related to the birth, adoption, or foster care placement of a child. The new Act also deletes the language that allowed an employer to refuse reinstatement to certain salaried employees.

Employers with 50 or more employees are subject to the Federal Medical Leave Act (FMLA) and the CFRA.  Some CFRA qualifying reasons may not run concurrently with FMLA, and they may need to provide 12 weeks plus 12 weeks of unpaid medical and family leave, for a total of 24 weeks. This will depend on the employee’s leave reasons.

The California Fair Employment and Housing Council (CFEHC) will hold a meeting on December 5, 2020, and it may issue further rules related to the CFRA before January 1, 2021.

How:

  • Post the employee notification poster by January 1, 2021. (Look for a current version on the CFEHC website by year-end.)
  • Smaller employers that have not given family and medical leave in the past must develop new policies and procedures to accommodate the requirements of the amended Act.
  • If you have an existing policy, update your HR Manual, employee handbook, and associated procedures as needed to reflect the changes in the law.
  • Train supervisors and HR personnel on the amendments to the Act and your related policies.
  • Watch for additional rules to be issued by the CFEHC before year-end.

 

Additional Resources:

State Bill 1383

Changes without Regulatory Effect to the California Family Rights Act Regulations

Coming Soon: Expanded Family and Medical Leave in California

California Department of Fair Employment and Housing Posters

 

January 1: California Allows Employees to Choose Designation of Sick Leave as Kin Care

Who: California employers

When: Effective January 1, 2021

What: Current law gives employees the right to use up to half of their accrued and available employer-provided sick leave when attending to the illness of a family member. Such care is dubbed “kin care.” Under another current law, employers have the right to classify the time taken for kin care. Newly passed Assembly Bill 2017, however, gives employees the “sole discretion” to designate the reason for which they use their available sick leave. This means the employer cannot intentionally or accidentally choose to designate leave as kin care and thus rapidly deplete the amount of leave available for kin care.

How:

  • Revise your sick leave policies, procedures, and practices to comply with the new law.

 

Additional Resources:

Assembly Bill 2017 Employee: sick leave: kin care

Labor Code section 233

 

January 1: California Expands Protection of Employees Who Are Victims of Crime

Who: California employers

When: Effective January 1, 2021

What: California Assembly Bill 2992 becomes effective January 1, 2021. It amends Labor Code Sections 230 and 230.1 and prohibits employers from discriminating or retaliating (including discharge) against an employee who is a victim of abuse or crime and takes time off from work to obtain relief.

Victims of domestic violence, sexual assault, and stalking were already protected, but the definition of crime has been expanded to include other crimes that caused physical injury or that caused mental injury and a threat of physical injury. In fact, the amendment defines it as any crime that would constitute a misdemeanor or a felony if the crime were committed in California by a competent adult (regardless of any related arrest or conviction). The amendment also protects leave for an employee whose immediate family has died as a direct result of crime.

The employee must give the employer reasonable notice, except when that’s not feasible. Employees can provide documentation “within a reasonable time after the absence” via a police report, a court order, a report from a victim’s advocate or health or mental health care provider, or any other document that reasonably verifies the crime has occurred.

Employers with 25 or more employees are subject to additional rules, which expand the victim–of–crime–related reasons employees may take the leave. All employers must protect employees’ confidentiality and notify employees of their rights under the new law.

How:

  • Update your policies related to leave for crime victims to ensure you are in compliance with the new law. Update your HR Manual.
  • Distribute the new policy to employees before January 1, 2021.
  • Educate supervisors and managers about employees’ rights under the new law and how you are going to accommodate requests for leave and leave taken under the law.

 

Additional Resources:

California AB-2992–Employment Practices for Leave Time

 

January 1: California Extends Time to File Complaint with Labor Commissioner; Allows for Reimbursement of Attorney’s Fees in Whistleblower Cases

Who: California employers

When: Effective January 1, 2021

What: Governor Newsom signed Assembly Bill 1947, which amends Labor Code section 98.7. Current law gives employees six months to file a claim alleging they were discharged or discriminated against in violation of any law enforced by the Labor Commissioner. Effective January 1, 2021, however, AB 1947 gives employees one year to file such a complaint.

AB 1947 also amends Labor Code Section 1102.5 to allow courts to award reasonable attorneys’ fees to employees who prevail in whistleblower actions. This remedy is in addition to damages an employee could obtain under the current law.

How:

  • Review your HR Manuals and employee handbook and modify policy language as necessary to comply with the new law.

Additional Resources:

Assembly Bill 1947 Employment violation complaints: requirements: time

Labor Code section 98.7

Labor Code section 1102.5

 

January 1: Labor Commissioner’s Ability to Represent Complainants Expands

Who: California employers

When: Effective date January 1, 2021

What: California passed Senate Bill 1384, which amends Labor Code section 98.4. The new law states that where a claimant cannot have their wage claim adjudicated due to a court order compelling arbitration, that if the claimant so requests, the Labor Commissioner must represent an individual in the arbitration proceedings when that person cannot pay for legal counsel and the Labor Commissioner has determined that the claim has merit.

In addition, SB 1384 requires employers to serve petitions to compel arbitration of section 98, 98.1, or 98.2 claims on the Labor Commissioner. Upon request of the claimant, the Labor Commissioner may represent the claimant in proceedings to determine the enforceability of the arbitration agreement.

How:

  • Revise policies and procedures as necessary to ensure that you serve petitions on the Labor Commissioner to compel arbitration of Section 98, 98.1, and 98.2 claims.

 

Additional Resources:

Senate Bill 1384 Labor Commissioner: financially disabled persons: representation

Labor Code section 98.4

 

January 1: California Expands Family Leave for Military Members

Who: California employers

When: Effective January 1, 2021

What: California’s Assembly Bill 2399 amends sections 3302 and 3307 of the Unemployment Insurance Code and provides Paid Family Leave to U.S. military members and their families. Paid Family Leave now includes an additional category of time off for participating in an exigency related to active duty or call to active duty of a person or that person’s spouse, domestic partner, child, or parent.

Affected employees must provide a copy of new active-duty orders or other documentation to prove the need for leave based on a qualifying exigency. The list of activities that qualifies is lengthy and described in full in section 3302.2 of the Unemployment Insurance Code.

How:

  • Review and update your employee handbook to comply with the amended law.
  • Update policies and procedures related to leave requests related to qualifying military-related exigencies.
  • Provide training for HR personnel, payroll personnel, and managers on the availability of Paid Family Leave for military members and their families.

 

Additional Resources:

Assembly Bill 2399 Paid Family Leave: Qualifying Exigency

 

January 1: California Clarifies Law Prohibiting No-Rehire in Employment Settlement Agreements

Who: California employers

When: Effective January 1, 2021

What: Under existing law, California employers are disallowed from including no-rehire clauses in settlement agreements with employees regarding employment disputes—except in cases where the employer made a good-faith determination that the complainant engaged in sexual harassment or assault.

The state passed Assembly Bill 2143, which requires that the aggrieved person (i.e., the employee) filed a claim in good faith for the prohibition to apply. AB 2143 also revises Code of Civil Procedure section 1002.5(b)(1)(B) to require the employer’s good faith determination that the complainant engaged in sexual harassment or assault to be “documented.”

How:

  • Consider the amendments to the law when drafting settlement agreements in employment disputes.
  • Review your policies and practices related to the investigation of employees’ complaints. Document all incidents and investigations.

 

Additional Resources:

Assembly Bill 2143 Settlement agreements: employment disputes

Civil Procedure section 1002.5

 

By March 31: Employers Must File Equal Pay Reports

Who: Private California employers with 100 or more employees

When: Pay data report due by March 31, 2021

What: The California legislature reported that despite strengthening of equal pay laws, the gender pay gap persists. By passing SB 973, California hopes to further close that gap. The legislation requires certain private employers to annually report pay data to the California Department of Fair Employment and Housing (DFEH). The law applies to employers 1) with 100 or more employees and 2) who must also file an annual Employer Information Report (EEO-1).

California legislators hope that reporting equal pay data will help employers assess their pay disparities with regard to gender, race, and ethnicity and more readily comply with equal pay and anti-discrimination laws. Because SB 973 also allows DFEH to enforce the Equal Pay Act, the pay data they gather will allow them to do so more efficiently and in a targeted way.

The new law becomes effective on January 1, 2021, and the deadline for reporting is March 31, 2021. Required data include numbers of employees, the hours they worked, and their W-2 earnings, reported by race, ethnicity, and sex in each of the 10 job categories in the federal EEO-1 report. Employers must also report which of the employees’ annual earnings fall within the wage ranges the U.S. Bureau of Labor Statistics uses in its Occupational Employment Statistics Survey. These ranges include “less than $19,239” to “more than $208,000.”

How:

  • Watch this DFEH site for updates on how and where to report your data, and which data must be reported.
  • Work with payroll staff to create a data-gathering and reporting procedure and update your documentation accordingly.
  • Report the required pay data by March 31, 2021.

Additional Resources:

California SB-973—Pay Data Requirements for Employers

FAQ Relating to Pay Data Reporting

U.S. Bureau of Labor Statistics Occupational Employment Statistics

 

Extended to 2026: Exemption from Rest-Period Requirement for Safety -Sensitive Employees at Petroleum Facilites

Who: California employers

When: Effective date extended to January 1, 2026

What: It is customary for employees in the petroleum industry to be given periods of time where they are relieved of all duties and are allowed to rest without interruption. Currently, there is an exemption from the rest-period requirements for employees who hold safety-sensitive positions in the petroleum industry and are required to respond to emergencies. These employees must carry and monitor a communication device at all times, or remain on employer premises to respond to emergencies. Assembly Bill 2479 extends this exemption—which was set to expire on January 1, 2021—until January 1, 2026.

How:

  • Revise policies and procedures as necessary to accommodate the extension of the exemption.

 

Additional Resources:

Assembly Bill 2479 Rest periods: petroleum facilities: safety-sensitive positions

Labor Code section 226.75

 

By December 31, 2020: Law Requirements Due for Corporations to Add Directors from Underrepresented Groups

Who: California employers

When: Requirements to be met by December 31, 2021

What: On September 30, 2020, Governor Newsom signed Assembly Bill 979, which requires publicly held corporations headquartered in California to include persons from underrepresented communities on their boards of directors. Both foreign and domestic publicly held corporations with principal executive offices in California must have at least one director from an underrepresented community on their boards by the end of 2021. Although existing laws require the addition of female directors, this law is an attempt to force representation of all underrepresented communities.

By December 31, 2022, the number of persons to be included is based on the size of the board must be as follows:

  • For boards with three or fewer directors, at least one director must be from an underrepresented community.
  • For boards with four to eight directors, at least two directors must be from an underrepresented community.
  • For boards with nine or more directors, at least three directors must be from an underrepresented community.

 

Underrepresented is defined as, “an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.”

Existing law authorizes the Secretary of State to impose fines up to $100,000 for the first violation of this new law, and up to $300,000 for subsequent violations.

How:

  • Review and update your recordkeeping policies to comply with the law’s reporting requirements as it relates to board members’ gender and race.
  • Consider sensitivity and confidentiality when created a mechanism for existing and potential board members to self-identify as a member of an underrepresented group.
  • Train Governance and Nominating committee members on the new law.
  • Reconsider your recruitment strategies in order to attract minority candidates.

 

Additional Resources:

Assembly Bill 979 Corporations: Boards of Directors: Underrepresented Communities

 

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