Author Archives: Mary Spadaro

International Student-Athlete Visas Potentially At Risk Due To New NCAA NIL Rules

OVERVIEW
Opportunities for student-athletes to benefit from use of their name, image, and likeness (NIL) have opened up under new NCAA rules adopted in the face of pressure from state laws challenging NCAA’s former prohibition on student-athletes profiting from their own NIL. As of July 1, 2021, student-athletes who are U.S. citizens or lawful permanent residents may profit from their NIL, subject to NCAA rules and applicable state laws.

But international student-athletes, meaning those who are not U.S. citizens or lawful permanent residents, face different considerations. Their immigration status and ability to remain in the U.S. short-term or long-term may be affected by how they try to benefit from use of their NIL. U.S. colleges and universities have a strong interest in protecting the immigration status and thus the ongoing enrollment and program participation of their international student-athletes.

We recommend that college and universities educate their international student-athletes about their rights and risks around NIL and how their situation differs from their U.S. peers, to avoid drastic consequences of even the most innocent missteps.

F-1 STUDENT VISAS AND PASSIVE INCOME vs. WORK FOR PAY
Many student-athletes are in F-1 international student status, sponsored by their school. F-1 sponsoring schools are certified by the U.S. Department of Homeland Security (DHS) to issue F-1 student visa documentation and manage student visa records in the Student and Exchange Visitor Information System (SEVIS) database maintained by DHS to track student visa holders.

Certified F-1 sponsoring schools have an express duty to educate and inform their F-1 students about F-1 compliance rules, including the scope of permissible employment and the approvals needed to authorize permissible types of employment. International student-athletes in F-1 international student visa status are not allowed to work for pay outside of certain approved types of employment, either on campus (for the school or a service provider for the campus community), or for training in their field of endeavor and authorized by their school’s Designated School Official (DSO) for their F-1 program.

Passive income is permitted for international students in F-1 status and does not violate their F-1 visa status. Applicable state laws are important indicators of the rules, but international student-athletes are subject to the umbrella of U.S. immigration law and interpretation of “work” versus “passive income” by the DHS, which won’t necessarily agree with state labor and employment regulators.

To avoid a status violation, F-1 international students need to understand what seems to be passive income and what seems to be work for pay. For example, appearing in a scripted advertisement probably is work for pay, whereas use of competition film or photos in subsequent advertising probably is passive income. So that means appearing in a scripted advertisement filmed on campus is not permissible “on campus employment” for F-1 international students, unless the school is creating the advertisement on campus for its own promotional efforts.

DRASTIC CONSEQUENCES FOR F-1 VISA VIOLATIONS
Each school certified by DHS to sponsor F-1 international students must appoint one or more DSOs on campus who have delegated authority from DHS to monitor the F-1 status of the international students on its campus. If a DSO becomes aware that an F-1 student worked for pay – or “volunteered” to work without pay – outside authorized parameters for F-1 status, the consequences can be drastic. DSOs dread that one of their F-1 students could show up at their home off campus as a commercial delivery person, giving the DSO actual knowledge that the F-1 student is engaging in unauthorized employment.

If an F-1 student violates status by engaging in any amount of unlawful employment, the DSO is required by law to terminate the student’s SEVIS record with the Student and Exchange Visitor Program, U.S. Immigration and Customs Enforcement (SEVP – ICE – DHS), which terminates the student’s F-1 visa status. The student then has to either apply to U.S. Citizenship and Immigration Services (USCIS – DHS) for reinstatement to F-1 status, or depart the U.S. and return based on a new F-1 SEVIS record from their school. If they depart the U.S., it’s likely they will need to obtain a new F-1 visa stamp at a U.S. consular post (the State Department), and then they will need to request return admission to the U.S. in F-1 status. When a student arrives at a U.S. port of entry and requests admission in F-1 status, U.S. Customs and Border Protection (CBP – DHS) checks their SEVIS record to make sure they still are authorized for F-1 status by their school and SEVP (ICE – DHS). CBP will know from SEVIS if a student recently was terminated in SEVIS for a status violation such as unlawful employment and now is returning on a new SEVIS record, and CBP has the opportunity to question the student about the circumstances.

USCIS, the State Department, and CBP – DHS at U.S. ports of entry, each has discretion to deny reinstatement or return to F-1 student status every time they are asked to approve an application, issue a visa stamp, or admit a traveler to the U.S.

INTERNATIONAL STUDENTS IN OTHER VISA CATEGORIES ARE ALSO AT RISK
The same situation applies to international students who are in other types of status categories that don’t allow employment, such as dependents of international personnel working in the U.S. These students may not be identified or tracked by a college or university because they aren’t sponsored by the school for F-1 student visas, but similar to F-1 students, they aren’t allowed to engage in employment. It can be even harder for student-athletes in other status categories to rectify their immigration status after even an innocent status violation, because the school doesn’t manage their immigration status and there’s no “reinstatement” process for other visa categories.

TAKEAWAY: EDUCATE INTERNATIONAL STUDENT-ATHLETES ABOUT NIL RISKS
Violations of immigration status by international student-athletes have the potential to interrupt their program of study and force them to depart the U.S., and as a result miss athletic competitions and lose NCAA eligibility. So it’s important for schools to help their international student-athletes avoid status violations, including engaging in unauthorized work for pay. We recommend that F-1 sponsoring schools distribute handouts or FAQs for their international student-athletes explaining the difference between passive income and work for pay with respect to NIL activities.

If you have questions or need help preparing handouts or FAQs, please contact attorneys Leigh Cole or Adam Maldonado at Hirschfeld Kraemer LLP.

Bay Area Reinstates Indoor Masking For All, Even If Vaccinated

Several Bay Area counties, including San Francisco, Alameda, Contra Costa, Marin, San Mateo, Santa Clara, and Sonoma counties, as well as the city of Berkeley, have joined Los Angeles, Sacramento, and Yolo counties in requiring that all persons, regardless of vaccination status, wear a mask indoors.

These mandates follow recent guidance from the U.S. Centers for Disease Control recommending the same after an increase of COVID-19 cases related to the Delta variant.

The Bay Area mask mandates will take effect Tuesday, August 3, 2021, and remain in effect for the foreseeable future.

Employers located in the above counties and the City of Berkeley should immediately review their policies and practices to ensure all employees are masking up indoors, even if vaccinated, in light of these new mandates.

For more information on this topic, please reach out to Michelle Freeman, mfreeman@hkemploymentlaw.com (415) 835-9003

California Supreme Court: Premium Pay for Non-Compliant Meal/Rest Periods Must Be Paid at “Regular Rate of Pay” Used for Overtime, Not Base Hourly Rate—and Applies Retroactively

California employers are already well acquainted with the resource-intensive process of navigating and applying California law to maintain compliant payroll practices. This process became even more difficult due to the California Supreme Court’s recent decision in Ferra v. Loews Hollywood Hotel, LLC, which holds that premium pay for missed meal and rest breaks must be calculated at the same “regular rate of pay” used to calculate overtime payments.

Of equal concern, the Court held it was not making new law, but simply explaining what the law has always been: in other words, this requirement applies retroactively.

Background
Under California Labor Code section 226.7, non-exempt employees who do not receive a compliant meal or rest period are entitled to receive premium pay of “one additional hour of pay at the employee’s regular rate of compensation for each day that the meal or rest or recovery period is not provided.” A common understanding among employers was that a “premium” was the equivalent of one hour’s pay at the employee’s base hourly rate. While plaintiffs’ attorneys frequently argued that the term “regular rate of compensation” (as used in section 226.7) must be interpreted the same as “regular rate of pay” under section 510(a) for overtime payments, there was no bright line case law. Until now.

Notably, the trial court ruled, and the Court of Appeals agreed, that the “regular rate of compensation” meant an employee’s base hourly rate and was not synonymous with “regular rate of pay” as used for overtime purposes. In reversing the lower court, the California Supreme Court leaned heavily on the legislative history of both Labor Code sections 226.7 and 510 as well as section 7(a) of the federal Fair Labor Standards Act and the California Industrial Welfare Commission’s tracking of the FLSA’s “regular rate” language in California wage orders.

Against this historical background, the California Supreme Court rejected Loews’ interpretation that the term “regular rate of pay” was an established term of art specific to California overtime law — instead finding that because sections 226.7 and 510 were enacted contemporaneously, the terms should be given consistent meaning:

“In sum, we hold that the term ‘regular rate of compensation’ in section 2267(c) has the same meaning as ‘regular rate of pay’ in section 510(a) and encompasses not only hourly wages but all nondiscretionary payments for work performed by the employee. This interpretation of section 226.7(c) comports with the remedial purpose of the Labor Code and wage orders and with our general guidance that the state’s labor laws are to be liberally construed in favor of worker protection.”

The Calculation
For California employers, the Ferra decision means that premium pay for non-compliant meal and rest periods cannot be paid at an employee’s base hourly rate. The calculation for premium pay must be determined by dividing total workweek compensation, including non-discretionary bonuses/payments and commissions, among other potential non-hourly compensation, by total hours worked in that workweek, dividing by two, and then adding that quotient to the base hourly rate.

Moreover, because the Court rejected Loews’ argument that the decision should only apply prospectively, employers could be liable for a failure to pay such premiums at the “regular rate” going back four years (the effective statute of limitations).

Next Steps
In consultation with legal counsel, employers should promptly review their premium pay practices for non-exempt California employees going back four years to ensure compliance with this clarification of existing law.

For more information, please reach out to:
Kirstin Muller – kmuller@hkemploymentlaw.com or (310) 255-1811
Monte Grix – mgrix@hkemploymentlaw.com or (415) 835-9016
Margeaux Pelusi – mpelusi@hkemploymentlaw.com or (415) 835-9051

At the Buzzer: Hours Before State Laws Take Effect, NCAA Clears Way for College Athletes to Immediately Cash-In on “Name-Image-Likeness” Rights

Overlapping but fundamentally different legal developments in the last few weeks have transformed how the National Collegiate Athletic Association (NCAA) defines and applies “amateurism” – the core concept by which the NCAA’s more than 1000 member institutions and conferences collectively relate to college athletes, define and limit their rights, and seek to differentiate college athletics from professional sports. This post offers a brief roadmap through these momentous changes.

Most immediately, on June 30, 2021, the NCAA’s Board of Governors ended the NCAA’s long prohibition against collegiate athletes financially profiting from their Name-Image-Likeness (NIL) assets while competing in college athletics. For the first time in the NCAA’s 115-year history, athletes now may secure endorsement deals, receive compensation for postings and content related to their social media accounts, sell autographs, appear on trading cards, accept video game deals, and otherwise profit from their NIL rights – either in accord with applicable state laws or, in states without such laws, through policies which their institutions must develop. Following its initial press release announcing the interim NIL policy change, the NCAA has compiled a suite of educational materials further explaining the immediate impacts and reach of its NIL decision.

The NCAA policy was approved just before conflicting laws and executive actions – all of which would have overridden the NCAA’s prior NIL prohibitions in many respects – took effect on July 1, 2021, in approximately a dozen states, with many other new state provisions set to follow, including California. Applicable across all three NCAA Divisions, the change is an interim approach to what otherwise would have been the chaos of inconsistent state laws across the country. It followed year-long efforts to secure at least temporary uniform federal legislation, and will remain in effect until superseded by federal law – which may still be forthcoming over the next year – or by a permanent NCAA policy whose details accommodate the varying state approaches. (What we think is the best overall summary of this history, as well as of possible federal issues, can be found here).

The NIL change came hard on the heels of the U.S. Supreme Court’s unanimous June 21, 2021, decision in NCAA v. Alston, upholding a ruling by the United States Court of Appeals for the Ninth Circuit that another category of NCAA restrictions for college athletes – on so-called “education-related benefits,” such as enhanced tutoring services or scholarships for graduate school – were subject to scrutiny under the Sherman Act, failed that scrutiny, and thus violated federal antitrust law.

Separately, either the new NIL structure or the Alston decision – one a policy change following state and threatened federal legislation, the other the result of landmark litigation – would have been a paradigm shift in college sports. Taken together, the two developments will fundamentally alter how college athletes will share in the billions of dollars of annual college athletic revenues, the structure of institutional and conference finances, and potentially the meaning of gender equity in college sports – and thus, many observers believe, will reshape the underlying structure of college athletics.

With so much change to consider, institutions need to be clear about what they need to do now, in responding to the NIL change pending further Congressional or NCAA action, and what was and was not decided by the Supreme Court in Alston.

Payments to Athletes from Schools

Alston addressed direct payments from schools to athletes of benefits with an educational nexus, such as post-graduate education funding, internships, or computers and other school-related supplies. The Supreme Court prohibited regulation of this area at the national level, but left open the possibility of different rules issued by different conferences. As conferences across all three NCAA Divisions work through this area, schools will need to participate fully in their conferences’ efforts, and be especially attentive to whether state laws that primarily address NIL issues also address these kinds of education-related “benefits.”

What Alston didn’t address was the application of separate NCAA “amateurism” rules that prohibit what is commonly referred to as “pay-for-play” – direct compensation for athletic activity, unrelated to educational benefits – and attendant possible issues such as athlete participation in rule-making (as through collective bargaining), or tax consequences of actual “pay” above full athletic scholarships.

Although these pay-for-play prohibitions were upheld by the 9th Circuit, neither party appealed the issue to the Supreme Court; it thus was neither before the Court, nor addressed by it. Pending new litigation, those rules remain in effect: NCAA member institutions still may not compensate student-athletes for athletic participation or achievement or provide a student-athlete with compensation contingent on future enrollment. And while some of the new state laws may address pay-for-play issues in ways that differ from the NCAA rules, the NCAA’s new NIL policy does not change those rules.

Name-Image-Likeness Arrangements

What schools do need to do now – and have already begun to do, especially in states whose laws took effect on July 1, 2021 – is implement the new NCAA NIL policy, with particular focus on the details of applicable state laws. There are many areas of uncertainty – these are the issues we think are key:

– Overall Effect on College Athletes: College athletes now may benefit from NIL opportunities, no matter where their school is located or whether there is an applicable state law, and institutions may help them arrange such opportunities. But the NCAA’s existing non-NIL rules still apply, especially those which prohibit “pay-for-play,” improper recruiting inducements, and improper involvement by institutional “boosters”.

– Applicable State Laws or Executive Orders: The interim NCAA policy requires institutions to allow athletes to engage in NIL-related activity “consistent with the law of the state” in which the institution is located: if an institution’s state does not yet have an applicable law, the institution must permit NIL activities consistent with the NCAA’s policy. The policy does not address applicability of a law in the state of the athlete’s residence – with or without a law in the state where the athlete’s institution is located – but institutions should consider what such laws might provide.

– Multiple or Divergent State Restrictions: The interim policy doesn’t have uniform guidelines as to what NIL activities are permitted, and state NIL laws differ significantly as to whether, e.g., student-athletes may use an institution’s name or logo, receive compensation for promoting alcohol, tobacco, or gambling, and in other areas. Florida, for example, requires student-athletes to take a five-hour workshop covering “financial literacy, life skills, and time management skills” before their first year in order to engage in NIL-conduct. In Arkansas, student-athletes are prohibited from negotiating or receiving NIL compensation prior to enrollment. And in Alabama, student-athletes may only receive NIL compensation “commensurate with the market value” of their NIL.

– Agents and Other Advisors for Athletes: The policy permits “use of a [third-party] professional services provider for NIL activities”, including an agent, attorney, or brand management company – a significant change from current limits on an athlete’s general engagement of such personnel or companies.

– Reporting Requirements: The interim NCAA policy indicates that student-athletes “should report” NIL-related activities “consistent with state law and/or institutional requirements.” The policy appears not to have created a stand-alone mandatory reporting requirement for athletes when there no state law obligations, but not to prohibit institutions from requiring such reporting. Given that many states do impose such requirements (e.g., Pennsylvania mandates that NIL-related arrangements be reported “within seven days of execution”), institutional and conference reporting and record-retention procedures will need to meet a variety of obligations.

– Impact on International Students: Because the interim NIL policy will apply equally to international athletes, institutions will need to consider what are currently open questions surrounding immigration, visa, and tax implications for international students who engage in NIL-related activity.

The combination of state NIL legislation and the resulting NCAA interim NIL policy change has brought cheers from current and future student-athletes – and considerable uncertainty to administrators and university counsel, who now must quickly develop a playbook to implement, administer, and enforce new templates in a constantly changing environment. And though higher education confronts many other “post-pandemic” challenges, the NIL area is certain to be among the most publicly visible, and potentially among the most controversial.

For more information or for questions about how to navigate these and related legal issues, please reach out to Adam Maldonado, at amaldonado@hkemploymentlaw.com or (415) 835-9075.

UPDATE More Relaxed Masking, Distancing Among Cal/OSHA’s Latest Changes To Safety Rules

**UPDATE** August 3, 2021 — – Bay Area Reinstates Indoor Masking For All, Regardless of Vaccination Status

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**UPDATE** July 16, 2021 — – Los Angeles County Reinstates Indoor Masking For All, Regardless of Vaccination Status

The Los Angeles County Department of Public Health announced on Thursday, July 15, 2021 that, due to rising cases of the COVID-19 Delta variant in the County, it will issue a new Health Officer Order mandating masking for everyone while indoors in public spaces, regardless of vaccination status.

The new masking order will take effect at 11:59 p.m. this Saturday, July 17, 2021, and will remain in place for the foreseeable future.

Employers with operations in Los Angeles County should immediately review their policies and practices to ensure all employees are masking up indoors while in the presence of others, in light of this latest order.

We will continue to provide updates on this issue as more information becomes available.

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**UPDATE** June 29, 2021 — New Masking Recommendations for Los Angeles County.

On June 28, 2021, due to growing concern about the Delta variant, Los Angeles County issued a recommendation that everyone mask up “in settings such as grocery or retail stores; theaters and family entertainment centers, and workplaces when you don’t know everyone’s vaccination status.”

Employers who are not yet able to confirm full vaccination status for all individuals together in indoor settings should consider following the World Health Organization and Los Angeles County Public Health recommendations to have everyone continue to mask up until we know more about the dangers posed by the Delta variant.

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**UPDATED** June 21, 2021 — As anticipated, the Cal/OSHA Board voted June 17, 2021 to adopt revisions to its COVID-19 workplace regulations, which include major changes to masking and physical distancing requirements as described in our June 16 blog post (below). Following the Board’s adoption, Governor Newsom signed an Executive Order making the changes effective immediately.

Cal/OSHA has published initial guidance regarding these regulations via these FAQs.

We will continue to provide updates on this issue as more information becomes available.

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June 16, 2021 — Cal/OSHA has released another round of highly anticipated changes to its emergency COVID-19 workplace health and safety regulations (or ETS), heeding clear instruction from its Board last week to provide consistency with the significantly more relaxed masking and distancing protocols that became effective June 15, 2021 in California.

These updates, which are expected to be adopted at the Board’s June 17, 2021 meeting, incorporate the Board’s guidance and include several key departures from regulations currently in place, such as:

Fully vaccinated employees would no longer be required to wear a mask at work, and unvaccinated employees would need to wear one only while indoors when in the presence of others.
Employers would be able to do away with all measures implemented to maintain physical distancing, including removing previously mandatory partitions.
Employers would be required to make approved respirators (e.g., an N-95 mask) available to unvaccinated employees upon their request.
Employees who are either fully vaccinated or naturally immune to COVID-19 (through prior exposure and contraction of the virus) who have a COVID-19 exposure and are asymptomatic would not need to be excluded from the workplace.
Employers would be required to offer free testing to all unvaccinated employees exposed to COVID-19 regardless of whether the exposure occurred at work.
Employers would need to provide notice of potential exposure to all employees at a worksite where a COVID-19 case was present.
Employers will need to provide training to employees that includes information about the availability and correct usage of respirators and about access to and effectiveness of vaccinations.
While regular cleaning of PPE and other general office supplies will still be required, employees will now be permitted to share these items.

These changes are expected to become effective by June 28, 2021, and possibly as soon as June 17, 2021, if Governor Newsom acts on his expressed intention to accelerate the timeline via an Executive Order.

Employers should carefully review their policies in light of these significant changes, explained in greater detail below:

FACE COVERINGS
Fully Vaccinated Employees no longer need to wear face coverings in the workplace (unless the employer is experiencing an “outbreak” where three or more employees test positive for COVID-19 over a 14-day period).

An employee is fully vaccinated when the employer has documented that at least two weeks have passed since the employee’s final dose of an approved COVID-19 vaccine. Appropriate vaccines include only those approved or under Emergency Use Authorization by the FDA. However, for employees vaccinated abroad, a vaccine listed for emergency use by the World Health Organization is also acceptable.

Unvaccinated Employees: While no longer required to wear a mask in outdoor settings, unvaccinated employees must continue to wear face coverings indoors unless they are alone, are eating or drinking, or are otherwise exempt from wearing a mask due to a medical condition or while performing a task that would be unsafe to complete with a mask.

Keep in mind that for the purposes of these requirements, a face covering means a surgical or medical procedure mask, a respirator, or a woven fabric mask of at least two layers. Scarves, ski masks, bandanas, turtlenecks, or a single layer of fabric are no longer acceptable.

VERIFYING VACCINATION STATUS
While the proposed changes to Cal/OSHA’s regulations provide no guidance on how employers should document vaccination status, the agency will likely address the issue in subsequent FAQs. In the meantime, for avoidance of any doubt in maintaining a healthy workforce, employers should require documentary proof, like an employee’s vaccination card, while ensuring that this documentation must be treated as confidential medical information and kept separate from other employee files.

PHYSICAL DISTANCING AND PARTITIONS
Physical distancing measures, including formerly required partitions, may be removed (unless the employer experiences a major outbreak, with 20 or more COVID-19 cases over a 30-day period).

In a major outbreak, an employer must ensure that all employees in an “exposed group” are separated by at least six feet, or, if not feasible, employees must be as far apart as possible. The “as far apart as possible” condition also applies when employees in movement are subjected to momentary exposure.

Under the new regulations, “exposed group” refers to employees at a work location or area where an employee with COVID-19 case was present during their high-risk exposure period, unless the person(s) with a COVID-19 case (the “Affected Person”) passed through the area momentarily, where such Affected Person was at the location for less than 15 minutes while wearing a face covering the entire time, or where such Affected Person entered the location at a time when no other employees are present.

RESPIRATORS
Employers must provide respirators to unvaccinated employees upon request, and, during a major outbreak, also make respirators available to all employees in the exposed group, regardless of vaccination status. During outbreaks, employers must inform unvaccinated employees in the exposed group that they have the option to request a respirator, including, for example, an N-95.

It is important to keep in mind that use of respirators must be compliant with Title 8, Section 5144, which has specific requirements for voluntary respirator use, including creating and implementing written policies.

NO WORKPLACE EXCLUSION FOR VACCINATED EMPLOYEES
The revised rules now explicitly state that fully vaccinated employees, or those who developed natural immunity, do not need to be excluded from the workplace after a close contact with a COVID-19 case, as long as they are asymptomatic.

EMPLOYER-PROVIDED FREE TESTING
Under the current regulations, employers are required to offer free testing to all employees who experienced a close contact in the workplace. With the changes, employers would no longer be required to offer free testing to fully vaccinated employees, or those with natural immunity, unless these employees have COVID-19 symptoms or there is a major outbreak in the workplace. However, the changes would expand current regulations by requiring employers to provide free testing to employees during paid working time, even where there is no indication that the exposure was work-related.

RETURN TO WORK REQUIREMENTS FOR CLOSE CONTACTS
Employees who test positive for COVID-19 must continue to meet specific requirements before coming back to work. In addition, the revised regulations would require employees who had a close contact to meet specific criteria prior to returning to work.

Specifically, employees who experience a close contact but remain asymptomatic may return to work after 10 days. Exposed employees who develop symptoms typically cannot return to work until all of the following are true:

they are fever-free for 24 hours without the use of fever-reducing medication;
their other COVID-19 symptoms (aside from fever) have improved; and
at least 10 days have passed since the symptoms first appeared.

NOTICE REQUIREMENTS
Under the updated regulations, employers would need to provide notice to all employees and independent contractors at the worksite during a COVID-19 case’s high-risk exposure period. This change makes Cal/OSHA’s reporting requirements more consistent with Labor Code section 6409.6.

The requirement to notify employees kicks in when an employer knew, or should have known, of a COVID-19 case. If an employer should reasonably know that an employee has not received the notice, or has limited literacy in the language used in the notice, the employer must provide verbal notice, as soon as practicable, in a language understandable to the employee.

TRAINING REQUIREMENTS
In addition to the topics included in the current regulations, employers must also provide training to all employees on the following topics:

How to participate in the identification and evaluation of COVID-19 hazards;
The increased effectiveness of mitigating measures when combined (physical distancing, face coverings, increased ventilation indoors, and respiratory protection);
Information on respirators, including the employer’s policies for providing respirators, how to properly wear a respirator, how to perform a seal check, and unvaccinated employees’ right to request a respirator, without fear of retaliation, for voluntary use at no cost to the employee;
The different purposes and effectiveness of respirators versus face coverings with regard to COVID-19 as an airborne disease (N95s are more protective respirators that protect users from airborne disease, while face coverings primarily protect people around the user);
How to access COVID-19 testing and vaccination;
The effectiveness and benefits of vaccination in preventing COVID-19, (including protections against both transmission and serious illness or death);
The conditions under which face coverings must be worn in the workplace;
Recommendations regarding the use of face coverings outdoors (if physical distancing cannot be maintained) for persons who are not fully vaccinated;
Employees’ ability to request and obtain face coverings from the employer at no cost; and
Anti-retaliation provisions (employees can wear face coverings at work, regardless of vaccination status, without fear of retaliation).

Consistent with the removal of physical distancing requirements, employers no longer need to provide training on methods of physical distancing.

CLEANING AND DISINFECTION PROCEDURES
Employees are no longer prohibited from the sharing of personal protective equipment (PPE) or other items that employees regularly come into contact with such as phones, desks, keyboards, and the like. Employers must continue to perform regular cleanings of frequently touched surfaces, but the requirement to also disinfect those surfaces has been removed. Also, employers must clean and disinfect equipment and premises used by a COVID-19 case within 24 hours.

VENTILATION
In addition to evaluating how to maximize ventilation with outdoor air and achieving the highest level of filtration efficiency compatible with an existing ventilation system, employers must now also determine whether the use of portable or mounted high efficiency particulate air (HEPA) filtration units, or other air cleaning systems, would reduce the risk of COVID-19 transmission.

CONCLUSION
Revisions to existing policies and practices on this fast-changing topic can be complex. We encourage you to contact us should you have any questions or concerns.

For more information on this topic, please reach out to:
Michelle Freeman, mfreeman@hkemploymentlaw.com, (415) 835-9003
Monte Grix, mgrix@hkemploymentlaw.com, (310) 255-1827
Kirstin Muller, kmuller@hkemploymentlaw.com, (310) 255-1811
Netta Rotstein, nrotstein@hkemploymentlaw.com, (310) 255-1807

To Mask Or Not To Mask? Cal/OSHA Still Sorting It Out

UPDATE August 3, 2021 – See the latest on mask guidelines HERE

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June 11, 2021: Employers Advised To Maintain Current Policies Pending June 17 Meeting

In yet another twist in the controversy regarding whether fully vaccinated employees in California will be required to wear masks at work, after an emergency meeting on Wednesday night, Cal/OSHA’s Board scrapped proposed revisions to its Emergency Temporary Standards (ETS) initially adopted on June 3.

The Board’s withdrawal of the revisions—which contained onerous, highly criticized masking rules that would have required fully vaccinated employees to wear masks indoors any time they were in the presence of an unvaccinated individual—sent Cal/OSHA back to the drawing board, with clear direction from the Board to align California workplace safety requirements more closely with the liberal masking guidelines that will become effective for the general population statewide beginning June 15, 2021.

The Board’s flip-flopping has created widespread confusion for California employers who have been closely monitoring Cal/OSHA’s directive as they prepare for the state’s highly anticipated reopening next week.

Here is what employers need to know to ensure they remain in compliance with current Cal/OSHA regulations:

WHERE THINGS CURRENTLY STAND:
For now, there are no new changes to the ETS currently in place. Cal/OSHA is expected to make further revisions to the masking provisions of the new ETS that it will present to the Board on June 17, 2021. If approved, this new ETS would likely go into effect by June 28, 2021, once reviewed by the state Office of Administrative Law.

WHAT EMPLOYERS SHOULD DO NOW:
Since further revisions to the ETS will not become effective before June 15, California employers need to continue to adhere to the ETS implemented in November 2020 (as clarified and/or modified by Cal/OSHA’s FAQs) in the meantime. Although California’s relaxed masking guidelines—which apply to the general public—will kick in on June 15, employers should hold off on updating their masking policies and relaxing their practices and await final word from Cal/OSHA.

STAY TUNED!
We will continue to provide periodic updates on this issue as more information from Cal/OSHA becomes available. Further proposed revisions to the ETS are expected to be published by June 17, with a proposed effective date of June 28.

For the time being, employers should hold on tight for another potentially bumpy ride.

For more information on this topic, you can reach out to:
Kirstin Muller, kmuller@hkemploymentlaw.com, (310) 255-1811
Netta Rotstein, nrotstein@hkemploymentlaw.com, (310) 255-1807
Michelle Freeman, mfreeman@hkemploymentlaw.com, (415) 835-9003

Cal/OSHA Issues New Vaccine Guidelines

In news that will be welcomed by employers, Cal/OSHA has finally updated its Emergency Temporary Standards (ETS) to address whether fully vaccinated employees must be excluded from the workplace if exposed to COVID-19.

Prior to the updated guidance, an employer was required to exclude all employees from the workplace, regardless of vaccination status, if (1) they contracted COVID-19; or (2) were exposed to COVID-19 in the workplace.

Now, employers must only exclude employees who are not fully vaccinated. However, employers must still exclude fully vaccinated employees if they have a confirmed case of COVID-19, or have had a COVID-19 exposure and are experiencing COVID-19 related symptoms.

While this change allows employers to keep more of their employees in the workplace, it is important to remember that the remainder of the ETS remain in effect, including the requirements related to masks, physical distancing, and testing.

More Changes Coming

On May 7, 2021, Cal/OSHA submitted further proposed revisions to the ETS which will be considered at its May 20, 2021 meeting. The revised ETS will provide further direction regarding vaccinated employees, including updated social distancing and testing requirements, as well as updated definitions and the clarification of other terms.

If and when the updated ETS goes into effect, we will provide a further update.

For more information, contact Michelle Freeman in Hirschfeld Kraemer LLP’s San Francisco office, mfreeman@hkemploymentlaw.com, or (415) 835-9003.

Hospitality Industry Must Rehire Employees Laid Off Due To COVID-19

On April 16, 2021, Governor Gavin Newsom signed Senate Bill 93. This new law, effective immediately and through 2024, requires hospitality-related employers to rehire certain employees who lost their jobs for pandemic-related reasons.

Here are the key issues:

Which employers are covered by SB 93? Hotels, private clubs, event centers, airport hospitality operations, airport service providers, or entities providing services (janitorial, building maintenance or security) to commercial buildings.

Which employees are potentially eligible for recall under SB 93? Employees who were employed by the employer for at least six months during the 2019 calendar year and who were terminated involuntarily (laid off) for a pandemic-related reason, including a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, non-disciplinary reason due to the COVID-19 pandemic.

What requirements are imposed on employers under SB 93? The affected employer must offer laid-off employees information about job positions that are available or become available for which the former employees are qualified. The affected employer must then offer positions to such former, laid off employees based on a preference system. Importantly, under the preference system, if more than one employee is entitled to a position based on the foregoing criteria, the employer has to first offer the position to the more senior employee (measured by hiring date).

When and how must an employer provide notice? Within 5 days of establishing of the opening or creation of an open position, written notice of such position must be provided to the eligible former employee. The notice must be delivered by hand or to the employee’s last known address. The notice must also be provided by text and email if the employer has the former employee’s cell phone number and/or email address.

When and how must a former employee respond in order to accept the position? The former employee must be given at least five business days from the date he/she receives it to accept the position. If the employee accepts the position, then the employer must recall the employee back to work.

Are there any exceptions to this mandate to recall laid off employees? Yes, but they are limited. If an employer chooses not to recall an employee for a position based on the grounds that he/she is unqualified, the employer must provide written notice explaining the reasons for the decision within 30 days.

Are there anti-retaliation provisions in SB 93? Yes. Employers are prohibited from taking any adverse employment action against employees who exercise, or try to exercise, their rights under SB 93. Further, employers must maintain records regarding such layoff/recall efforts for three years, including records of communications regarding the layoffs and offers.

We strongly suggest that affected employers review their policies and procedures immediately to ensure that they conform with this new law.

For more information, contact Monte Grix in Hirschfeld Kraemer’s Los Angeles office, mgrix@hkemploymentlaw.com or (310) 255-1827.

Special Report: Major Changes For California Employers in 2021

This year saw a host of changes to California employment laws, and not all of them resulted from the COVID-19 pandemic. While the laws changed rapidly to address the needs of employees and employers during these increasingly uncertain times, California laws changed significantly with regard to all sorts of everyday activities. Among other things:

Employees now have additional time to bring wage claims to the Division of Labor Standards Enforcement (DLSE)
Employees can recover attorney’s fees for certain “whistleblower” claims
Larger employers must submit pay data to the Department of Fair Employment & Housing (DFEH)
The California Family Rights Act (CFRA) now applies to more employees and more employers
Employees have more leeway to decide when sick leave is taken for “kin care”
Victims of crime and abuse are more free to take leave
The standards for no-rehire agreements have been loosened
Adjunct faculty are now considered exempt

Add all that to the many changes adopted to deal with the pandemic, and 2020 made for a busy year for the California State Legislature.

Take a look for yourself at all of these significant changes:

FILING PERIOD FOR DLSE CLAIMS EXTENDED, AND ATTORNEY’S FEES ALLOWED UNDER LABOR CODE 1102.5 (A.B. 1947)
Assembly Bill 1947 amends the California Labor Code in three substantive ways. First, A.B. 1947 amends Labor Code section 98.7 by extending the time period for employees to file a complaint with the Division of Labor Standards Enforcement (DLSE). Currently, an employee who believes he has been wrongfully discharged or discriminated against in violation of any of California’s labor laws has six months after the occurrence of the violation to file a claim with the DLSE, but under the new legislation, an employee has one year to do so.

Second, A.B. 1947 amends Labor Code section 1102.5 to prohibit an employer from retaliating against an employee who reports an employer’s actual violation or noncompliance with local, state, or federal statutes or regulations; or who has a reasonable cause to believe that his/her employer violated or failed to comply with the law.

Lastly, the new legislation permits a court to award reasonable attorney’s fees to a plaintiff who prevails on a “whistleblower” action under Labor Code section 1102.5.

EMPLOYERS WITH OVER 100 EMPLOYEES MUST SUBMIT PAY DATA TO DFEH (S.B. 973)
Senate Bill 973 requires that private employers with 100 or more employees, and who are required to file an annual Employer Information Report (EEO-1) pursuant to federal law, must submit an annual pay data report to California’s Department of Fair Employment & Housing (DFEH).

Per the new legislation, the pay data report must include the number of employees by race, ethnicity, and sex during a single pay period between October 1 and December 31 of the reporting year, in each of the following categories:

Executive or senior level officials and managers
First or mid-level officials and managers
Professionals
Technicians
Sales workers
Administrative support workers
Craft Workers
Operatives
Laborers and helpers
Service Workers

Employers are also required to identify the number of employees by race, ethnicity, and sex whose annual earnings fall within each of the pay bands used by the U.S. Bureau of Labor Statistics in the Occupational Employment Statistics survey. To do so, the employer must calculate the total earnings for each employee for the entire reporting year, whether or not the employee worked a full calendar year. Lastly, the report must include the total number of hours each employee worked in each pay band.

To avoid duplicative reporting, if an employer is required to submit an EEO-1 under federal law (which provides substantially similar data), the employer may submit a copy of the same report to the DFEH. However, if an employer has multiple establishments, it must file a report for each establishment, as well as a consolidated report. Per S.B. 973, the first annual report will be due on or before March 31, 2021, and subsequent annual reports will be due on or before March 31 each year thereafter.

PROTECTED LEAVE COVERAGE EXPANDED TO SMALLER EMPLOYERS AND ADDITIONAL FAMILY MEMBERS (S.B. 1383)
The California Family Rights Act (CFRA) ensures job-protected leave for California employees to bond with a newborn, care for a family member with a serious health condition, care for their own illness, or address a military exigency. Senate Bill 1383 significantly expands the application of CFRA in several respects.

Smaller Employers Are Now Covered. The CFRA previously applied to all public employers and private employers with 50 or more employees within 75 miles of the worksite. S.B. 1383 expands CFRA leave to private employers with at least 5 employees, and eliminates the requirement that employees work within 75 miles of the worksite. Therefore, employees who work for such employers will now be able to take up to 12 weeks of unpaid family care and medical leave, which includes leave for an employee to care for themselves, a family member, the birth or adoption of a child, and a qualifying military exigency. This will significantly impact small employers who were not previously required to provide such leave.

Expansion of “Family Members.” The CFRA currently allows employees to take leave to care for several purposes, including to care for a “family member,” which is defined to include a spouse, parent, or child (if the child is a minor or dependent adult). S.B. 1383 expands the scope of “family members” to include domestic partners, siblings, grandparents, grandchildren, children of a domestic partner, and adult children (whether or not they are a dependent). Therefore, large employers who were already covered by the CFRA will need to change their existing policies and practices to provide leave for a wider definition of family members.

New “Stacking” Issue with the federal FMLA. For employers with at least 50 employees who are covered by both the CFRA and Family Medical Leave Act (FMLA), the CFRA’s more expansive definition of “family member” may result in employees “stacking” leave under the two laws for varying purposes. Leave under the CFRA and the FMLA generally runs concurrently, meaning an employee is only eligible for a total of 12 weeks’ unpaid leave under both laws. However, the CFRA will now allow family leave for more family members than the FMLA permits (which limits family leave to care for an employee’s spouse, child, or parent who has a serious health condition). Therefore, an employee covered by both the CFRA and FMLA can take 12 weeks’ leave to care for a sibling under the CFRA, and another 12 weeks’ to care for a spouse under the FMLA, totaling 24 weeks’ leave.

Deletions from Existing Law. S.B. 1383 deleted two provisions from the CFRA. First, if both parents are employed by the same employer, an employer was previously not required to provide more than 12 weeks total leave for the birth, adoption or foster care placement of a child. Employers will now be required to provide 12 weeks’ leave to both employees for such purposes. Second, S.B. 1383 removes language that allowed an employer to refuse to reinstate highly compensated employees where necessary to prevent substantial economic injury.

What Should Employers Do Now?
S.B. 1383 goes into effect on January 1, 2021. Small businesses who were not previously covered by the CFRA need to develop policies and procedures to implement and administer the new leave requirements. Employers who were previously covered by CFRA need to update their policies to incorporate the revisions to CFRA, and ensure that FMLA and CFRA properly track when such leaves run concurrently or separately.

PAID SICK LEAVE DESIGNATION FOR KIN CARE (A.B. 2017)
California Labor Code Section 233 requires employers to permit employees to use their accrued and available sick leave entitlement to attend to the illness of a family member (known as “kin care”). It also prohibits employers from denying an employee the right to use sick leave or taking specific discriminatory action against an employee for using, or attempting to exercise the right to use, sick leave to attend to such an illness. “Family member” for purposes of kin care includes an employee’s child, parent or guardian, spouse or registered domestic partner, grandchild, grandparent, and sibling.

Assembly Bill 2017 revises Labor Code section 233 to provide employees the sole discretion to designate such leave as paid sick leave.

What Should Employers Do Now?
Employers should review their paid sick leave policies and implement procedures that allow employees to make such designations for kin care. Employers may also want to consider differentiating kin care from other protected leaves in their processes for tracking paid sick leave.

EXPANDED LEAVE PROTECTIONS FOR VICTIMS OF CRIME OR ABUSE (A.B. 2992)
Assembly Bill 2992 expands existing prohibitions on employers from discharging, discriminating, or retaliating against employees who are crime victims who take time off from work to obtain medical attention for injuries suffered, psychological counseling, mental health services, or similar relief.

Prior to A.B. 2992, such protections extended only to victims of domestic violence, sexual assault, or stalking. By amending Labor Code sections 230 and 230.1, these protections now broadly apply to crime victims outlined in Government Code section 13951 which comprehensively include any crime victim who has experienced physical or mental injury, or a threat of physical injury, including persons who experience the death of a family member as the result of a crime. Employee crime victims are covered regardless of whether any person is ever arrested for, prosecuted for, or convicted of committing the alleged crime. To qualify under A.B. 2992, however, an employee must provide advance notice of the requested absence unless it is unfeasible to do so. In those circumstances, the employee must provide their employer with a police report, court order, or other form of documentation that verifies that a crime or abuse occurred within a “reasonable” amount of time.

NO-REHIRE AGREEMENTS AND NEW “GOOD FAITH” REQUIREMENT (A.B. 2143)
Assembly Bill 2143 augments existing law prohibiting “no-rehire” clauses in settlement agreements in two important ways.

Currently, employers are prohibited from including “no-rehire” clauses in settlement agreements that prohibit, prevent, or otherwise restrict an aggrieved employee from obtaining future employment with an employer where the aggrieved employee has filed a claim against the employer either in court or through the employer’s internal compliant process.

Born out of the #MeToo movement, the policy behind the existing law was to avoid situations where a victimized employee was forced from their employment in connection with a settlement agreement while their harasser or abuser remained employed. Following the passage of A.B. 2143, an aggrieved employee must not only have filed a claim against their employer for the prohibition to apply, but the claim must have been filed in “good faith.” Notably, A.B. 2143 does not define or clarify what a “good faith” showing would require.

Second, A.B. 2143 creates additional exceptions from the prohibition if the employer has documented its own good faith determination that the aggrieved employee: (a) engaged in sexual harassment or sexual assault themselves, or (b) engaged in criminal conduct, either of which the employer must have documented prior to the filing of the aggrieved employee’s claim. The inclusion of a “no-rehire” clause in an employment settlement agreement under those circumstances would be permissible under the new law.

ADJUNCT FACULTY ARE NOW EXEMPT PROFESSIONALS (A.B. 736)
Although adjunct professors historically performed exempt duties and qualified as exempt professionals under federal law, they typically did not meet the full-time salary threshold under California law to be exempt from California wage and hour laws, due to the part-time nature of their work.

A recent surge of litigation caused some colleges and universities to reclassify their adjunct faculty as hourly paid employees. As a result, the Association of Independent California Colleges and Universities sponsored Assembly Bill 736, which the Service Employees International Union supported, to allow independent colleges and universities in California to appropriately treat adjunct faculty as professional employees.

Effective September 9, 2020, A.B. 736 amends Labor Code Section 515.7 to expand the California professional exemption under Industrial Welfare Commission Wage Order Nos. 4-2001 and 5-2001 to include part-time faculty employed by independent institutions of higher education in California, as long as the employee meets the existing professional exemption duties test, as well as a new salary test.

The duties test requires the employee to both: (1) be engaged in an occupation commonly recognized as a learned or artistic profession, and (2) customarily and regularly exercise discretion and independent judgment in the performance of their duties. The law further details work recognized as a learned or artistic profession.

The new salary test also mandates that employees who meet the duties test qualify for the exemption if they either: (1) are paid a monthly salary that is at least two times the state minimum wage for at least 40 hours per week; or (2) are paid per course or laboratory in accordance with rates set forth in Labor Code Section 515.7 (i.e., $117 per hour for 2020; $126 per hour for 2021; $135 per hour for 2022; with increases thereafter coinciding with increases in the state minimum wage).

Independent higher education intuitions with adjunct faculty who are classified as exempt should consult with counsel to review their employees’ duties and compensation structure to ensure compliance with Labor Code Section 515.7.

COVID-19 AND WORKERS’ COMPENSATION (S.B. 1159)
Governor Newsom previously issued Executive Order No. N-62-20 (the “Order”), which created a rebuttable presumption that any employee who contracted COVID-19 contracted the illness at work for workers’ compensation purposes. The Order expired July 5, 2020; however, the California legislature passed S.B. 1159, adding sections 3212.86, 3212.87, and 3212.88 to the California Labor Code to address COVID-19 in the workers’ compensation system. These added provisions create a new framework for COVID-19 related workers’ compensation claims and impose strict reporting requirements on employers.

Rebuttable Presumption. If an employee suffers from illness or death resulting from COVID-19, it is presumed that employee contracted the virus at work. An employer may rebut this presumption, but must do so quickly.

If the date of injury is prior to July 6, 2020, the employer’s claims administrator has 30 days to deny the claim. If the date of injury is on or after July 6, 2020, the claims administrator has 45 days to deny the claim. If the claims administrator does not deny the claim, the claim is presumed compensable.

Evidence an employer may use to rebut the presumption includes any measures taken by the employer to prevent transmission of COVID-19, and any evidence that an employee may have contracted the virus elsewhere.

Notably, the presumption is only rebuttable with evidence that is discovered subsequent to the applicable investigation period. Meaning: evidence discovered within the 30 and 45 day deadlines discussed above cannot be later used to rebut the presumption of compensability. However, if an employee is “essential,” as defined by Labor Code section 3212.87 (active firefighters, peace officers, or healthcare workers) the 30-day deadline applies regardless of the date of injury.

Employees Covered by the Presumption. Labor Code sections 3212.86 and 3212.88 apply to all employees who:

Test positive during an outbreak at the employee’s specific place of employment; and
Whose employer has five or more employees.

An “outbreak” exists if within 14 calendar days one of the below occurs at a specific place of employment:

“If the employer has 100 employees or fewer at a specific place of employment, 4 employees test positive for COVID-19;”
“If the employer has more than 100 employees at a specific place of employment, 4 percent of the number of employees who reported to the specific place of employment, test positive for COVID-19;” or
“A specific place of employment is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection with COVID-19.”

“Specific place of employment” is anywhere the employee performs work at the employer’s direction; however, it does not include an employee’s home or residence. If an employee performs work at multiple locations, the employee’s positive test must be counted at each location when determining whether there is an outbreak.

When the Presumption Applies. For the presumption to apply, the below conditions must be met:

“The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction;”
The last day that the employee performed work at the employee’s place of employment at the employer’s direction was on or after March 19, 2020 and before July 5, 2020 (Labor Code section 2312.86) or on or after July 6, 2020 (Labor Code section 3212.88); and
“The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.”

Employers Can Require Exhaustion of COVID-19 Related Benefits. If the presumption applies, the employee is entitled to “full hospital, surgical, medical treatment, disability indemnity, and death benefits.” However, if an employee is eligible for paid leave benefits the employee would not have received but for COVID-19, those benefits must be exhausted before using any temporary disability. If an employee has no benefits available to them, then the employee must be provided with benefits without any waiting period.

Employer Reporting Requirements. Labor Code section 3212.88(i) requires employees who know, or reasonably should know, that an employee has tested positive for COVID-19 report the below information to their workers’ compensation claims administrator (via electronic mail or facsimile) within three business days:

An employee has tested positive (the employer is prohibited from providing personally identifiable information unless the employee has filed a claim under Labor Code section 5401);
The date the employee tested positive (i.e. the date the specimen was collected for testing);
The specific address or addresses of the employee’s place of employment during the 14 days preceding the date of the positive test; and
The highest number of employees who reported to work at the employee’s place of employment during the 45 days preceding the employee’s last day of work.

Retroactive Reporting Requirements. An employer who is aware of an employee testing positive on or after July 6, 2020 and before September 17, 2020, must also prepare a report to the claims administrator (via electronic mail or facsimilia) within 30 business days of September 17, 2020 (i.e., October 17, 2020). The report must contain the same information as outlined above, except rather than identifying the highest number of employees who reported to work at the employee’s place of employment during the 45 preceding days, the employer is instead required report the “highest number of employees who reported to work at each of the employee’s [work site] on any given work day between July 6, 2020 and September 17, 2020.

Penalties for Submission of False and/or Misleading Information. Any employer, or agent acting on behalf of the employer, who intentionally submits false or misleading information, or fails to submit the required reporting information outlined above, is subject to a civil penalty in the amount of $10,000.

COVID-19 NOTICE TO EMPLOYEES (A.B. 685)
On September 17, 2020, Governor Newsom signed Assembly Bill 685, placing strict COVID-19 related reporting requirements on employers and expanding the Division of Occupational Safety and Health’s (Cal/OSHA) powers.

While A.B. 685 does not go into effect until January 1, 2021, employers should act now to review existing policies and put procedures in place to ensure compliance with A.B. 685 in the new year.

When Notice to Employees is Required. When an employer, or its representative, receives notice that a “qualifying individual” was in the workplace, the employer is required to issue notice within one business day to affected employees.

A “qualifying individual” is any person who:

Has a confirmed case of COVID-19;
Has a positive COVID-19 diagnosis from a licensed health care provider;
Has received a COVID-19-related order to isolate from a public health official; or
Has died due to COVID-19.

Who Must Be Notified. The employer must notify all employees, including employees of any subcontractors, who worked as the same worksite during the infectious period and the employees’ “exclusive representative,” if any.

Information the Employer Needs to Provide. Notice provided to employees must:

Advise the employee that he/she “may have been exposed to COVID-19;”
Be in writing;
Be in English and any other language understood by the majority of employees;
Transmitted to employees in the same manner the employer normally uses to communicate with employees.
Identify COVID-19 related benefits the employees may be entitled to under federal, state, or local law and under the employer’s policies;
Identify antiretaliation and antidiscrimination protections of the employees; and
Identify the disinfection and safety plan the employer plans to implement and complete pursuant to Centers for Disease Control guidelines.

Importantly, the notice should not disclose the names of any infected employees. Employers must maintain records of any written notifications made pursuant to A.B. 685 for a period of three years.

Notice to Local Health Officials. In addition to notice to employees, an employer may also be required to notify the local public health agency in the jurisdiction of the worksite if the employer is experiencing an “outbreak” within 48 hours. An “outbreak” is “three or more laboratory-confirmed cases of COVID-19 among employees who live in different households within a two-week period.” (See the California Department of Public Health’s COVID-19 Employer Playbook – Supporting a Safer Environment for Workers and Customers.)

Notice to local health officials must contain the following information:

Name, number, occupation, and worksite of a qualifying individual; and
Business address and NAICS code of the worksite.

The employer is required to provide further notice of any subsequent laboratory-confirmed cases of COVID-19 at the worksite.

Exemptions to Notice and Reporting Requirements. The above notice and reporting requirements apply to all private and public employees, with two exceptions: (1) health facilities as defined in section 1250 of the Health and Safety Code; and (2) employees whose regular duties include COVID-19 testing or screening, or who provide patient care to individuals who are known or suspected to have COVID-19, unless the “qualifying individual” is also an employee at the same worksite.

Cal/OSHA’s Authority to Shut Down a Workplace Due to COVID-19. Current law vests Cal/OSHA with the authority to prohibit entry into a workplace or prohibit use of dangerous equipment in the workplace where there is an imminent hazard to employees. A.B. 685 specifically extends this authority to COVID-19 related issues.

If Cal/OSHA finds that a workplace, operation, or process exposes employees to a risk infection, it has the authority to prohibit entry to the workplace or the performance of an operation and/or process. However, the restriction must be only to the areas of the worksite that pose a risk to employees. Cal/OSHA must notify employers and post conspicuous notice.

Serious Violation Citations Regarding COVID-19. A.B. 685 removes the prior 15-day notice period for COVID-19-related serious violation citations. Typically, Cal/OSHA will provide at least 15 days’ notice before issuing a citation. Now, and until January 1, 2023, Cal/OSHA no longer must provide 15 days’ notice, but can issues citations immediately. Employers are still able to contest the citation through the appropriate procedures.

* * *

CONCLUSION
While many of us are ready to put 2020 in the rear-view mirror, challenges for the new year abound. We wish everyone a happy, healthy and safe holiday season, and we are ready to assist you with all of your employment needs in the new year.

This special report was compiled by Michelle Freeman, Alison Hamer, Dan Handman, Ferry Lopez, Adam Maldonado, Anna Pham, and Felicia Reid. For more information, please contact any of them, or the Hirschfeld Kraemer lawyer who normally provides your legal counsel.

EEOC Issues Employer Vaccination Guidance

As COVID-19 cases surge, doses of emergency-approved vaccinations begin to be administered to first responders and the availability of a vaccine for the greater public seems more promising, the Equal Employment Opportunity Commission (EEOC) recently issued its highly anticipated guidance regarding employer-mandated COVID-19 vaccines.

Under EEOC Guidance, Employers May Generally Require Employees to Receive a COVID-19 Vaccine and Ask For Proof

The new EEOC guidance allows employers to require employees to get vaccinated for COVID-19, and to request proof of vaccination from employees. However, rather than prohibiting or endorsing mandatory vaccinations, the EEOC guidance recommends protocols for employers who decide to implement such mandates, to ensure they aren’t running afoul of anti-discrimination laws.

For example, if an employer seeks to require employees to receive the vaccination and have that vaccine administered by the employer (or a third party contractor), the employer must show that screening inquiries confirming that no medical reason would prevent the employee from receiving the vaccination are “job-related and consistent with business necessity.

Further, if a vaccination requirement would screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

What If An Employee Claims He Cannot Be Vaccinated Because of a Disability?

Under the ADA and California law, an employer can exclude an employee from the workplace because his condition constitutes a “direct threat to the health or safety of individuals in the workplace” which would place the employee or his co-workers at “significant risk of substantial harm.” Like many disability discrimination-related issues, this is a very fact-intensive inquiry and you should carefully consider each request individually, taking into account “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.”

If you conclude that an unvaccinated individual will expose others to the virus at the worksite based on these factors, you should then consider whether there is any reasonable accommodation that will suit the employee, and you should carefully consider remote work or offering them another position where remote work may be possible.

What If An Employee Claims She Cannot Be Vaccinated Because of a Religious Belief?

The analysis is generally the same, except instead of analyzing whether an employee poses a direct threat to herself or others, you analyze the basis of the employee’s religious belief, whether it is “sincerely held” and whether the religious belief actually prohibits vaccination. If it does, then you must engage in the same reasonable accommodation analysis.

For more information, contact Dan Handman at dhandman@hkemploymentlaw.com, (310) 255-1820, or Netta Rotstein at nrotstein@hkemploymentlaw.com, or (310) 255-1807. Both are in Hirschfeld Kraemer’s Santa Monica office.

** UPDATE** August 3, 2021 – See the latest on mask guidelines HERE

June 11, 2021: Employers Advised To Maintain Current Policies Pending June 17 Meeting

UPDATE August 3, 2021 – See the latest on mask guidelines HERE