Cal/OSHA Updates Emergency Temporary Standards

On December 16, 2021, California's Occupational Safety and Health Standards Boardreadopted and revised the Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) to incorporate the latest California Department of Public Health (CDPH) guidance. The revised ETS take effect on January 14, 2022 and apply to most California workers not covered by the Aerosol Transmissible Diseases standard.

Important ETS revisions include:

Post-exposure notification. Clarification on how to notify workers of potential COVID-19 workplace exposure within one business day.

Face covering. Types of acceptable face coverings and alternative requirements for those with medical or mental health-related conditions.

Testing. Post-exposure testing must be available to everyone in the exposed workgroup, even asymptomatic fully-vaccinated employees.

Exclusion/return to work criteria. The "close contact" return-to-work timeframes now comport with current CDPH guidelines:

• All recently-recovered COVID cases (i.e., those with natural immunity) and all fully-vaccinated, asymptomatic close contacts may return to work immediately after close contact so long as they (i) wear a face covering, (ii) maintain six feet of distance from others for 14 days, and (iii) receive CDPH's recommended "close contact" precautions.

• All unvaccinated asymptomatic close contacts may return to work with face coverings either: (i) after 14 days from close contact with no physical distancing requirements; (ii) after 10 days with physical distancing for 14 days; or (iii) after seven days upon receipt of a negative test at least five days after close contact with physical distancing for 14 days.

Unchanged requirements include:

• Establishing, implementing and maintaining an effective written COVID-19 prevention program (CPP);

• Providing effective training to employees to prevent the spread; and

• Relaying instructions regarding certain COVID-19 benefits for affected employees.

Cal/OSHA also issued a new fact sheet and will presumably publish an updated Model CPPin English and Spanish in the coming weeks.

Employers must also follow either their local health department's indoor mask mandate, such as LA County's public health order, or the latest CDPH order.

We will address these ETS revisions more fully in our upcoming employment law webinar.

See also:

• Nationwide Mandatory Workplace Vax Rules Are On Hold - California's Mandatory Directives for Certain Health Care Workers Remain in Place (November 19, 2021)
• Easy Does It Take Two; Cal/OSHA Revises Written COVID-19 Prevention Program(July 15, 2021)
• What's New in 2021 Infection Prevention Direction CAL/OSHA COVID-19 Emergency Temporary Standards (February 5, 2021)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
December 22, 2021

Preservation Time Doubled for Personnel Records

California's Fair Employment and Housing Act (FEHA) prohibits employers from discriminating, harassing, or retaliating against workers on the basis of protected classifications such as race, religion, gender, disability, and the like. To protect employee rights, FEHA has long required employers to preserve personnel records for no less than two years.

Starting January 1, 2022, Senate Bill (SB) 807 requires companies to "maintain and preserve any and all applications, personnel, membership, or employment referral records and files for a minimum period of four years after the records and files are initially created or received," and to "retain personnel files of applicants or terminated employees for a minimum period of four years after the date of the employment action taken."

Take-Away: Employers should implement or confirm policy that securely preserves personnel records for current workers, former employees and applicants for a minimum of four years.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Workplace Discrimination Prevention: California's Fair Employment and Housing Act, A History (March 26, 2021)
• Preventing Discrimination in a Pandemic: California's Expanded Guidelines
  on Workplace Vaccination Practices (March 11, 2021)
  
• Time's Up, Extended: Longer Three-Year Deadline For Initiating Discrimination Claims (January 10, 2020)

Helena Kobrin
December 17, 2021

Avoid Drunk and Disorderly and Keep People Safe

Employers planning end-of-the-year holiday parties should maintain sensible guidelines to carry off a safe and successful gathering. Management must ensure the event acknowledges production and promotes morale without becoming a fertile ground for harassment incidents or worse.

Some DO's and DON'Ts:

DO: Make an actual determination that the company can safely hold a party consistent with prevailing COVID-19 government restrictions and common sense;
DO: Make participation voluntary so people who are uncomfortable can avoid attending without fear of consequences;
DO: Adopt and announce advance dress code guidelines appropriate to the workplace, e.g., dress not likely to be offensive to other races, cultures, religions, etc.;
DO: Plan a health-prudent celebration that minimizes any potential for unwelcome, inappropriate conduct, such as drunkenness or harassment of co-workers. The time of day may help. A luncheon is more likely to avoid unwanted romantic advances and other improper conduct than a dinner;
DO: Have company executives, supervisors, and managers set a good example of appropriate behavior; and
DO: Enforce company guidelines during the event when needed, for instance requiring an offending employee to leave.

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DON'T: Permit improper conduct by supervisors, managers, or executives.
DON'T: Ignore or dismiss offensive behavior, including so little as off-color banter, even if you personally do not find it offensive. Inaction is tantamount to condoning bad conduct and greatly increases the possibility of receiving a harassment claim; and
DON'T: Allow alcohol consumption. Doing so lessens the ability to maintain a professional event and can increase potential exposure to company liability for drunken conduct by an employee. If you feel you must make alcohol available, provide advance rules to prevent unwanted incidents.

See also:

• Holiday Party Survival 101 - Keep in Your Lane Idiot (November 27, 2021)
• Find Out What's New in 2022 - Annual Seminar for Employers Covering Employment Legal Essentials and New Workplace Laws for 2022. (November 24, 2021)
• The Boundaries of Holiday Office Gatherings - Team Acknowledgment, Yes; Bad Taste, Alienation and Harassment, No: (November 22, 2017)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
December 10, 2021

California Clamps Down on Fair Chance Act Violations

The California Fair Chance Act (the Act) seeks to enable job applicants with criminal histories to obtain gainful employment. Under the Act, employers with five or more on payroll cannot obtain criminal background information until after extending a conditional offer of employment. Upon receipt of any criminal conviction information, the employer must engage in the "fair chance process" i.e., evaluating the applicant's criminal history as well as any mitigating circumstances before rescinding the job offer.

The California Department of Fair Employment and Housing (DFEH) recently began using technology designed to conduct mass searches of online job advertisements for statements that violate the Act, such as "No Felons" or "Must Have Clean Record." In a single-day search, the DFEH found over 500 unlawful job postings and has sent cease-and-desist letters to the violators.

DFEH Director Kevin Kish announced the process in a recent press release: "Using technology to proactively find violations of the state's anti-discrimination laws is a powerful strategy for our department to protect Californians' civil rights."

The DFEH has also recently issued a toolkit to assist employers in complying with the Act. It includes:

• Sample "fair chance process" procedural forms and instructions;
• Suggested language to add to job advertisements and applications;
• Frequently-asked questions; and
• An informational video about the Act

The DFEH also plans to release an interactive training and an online app in 2022.

Take-Aways:

Covered employers should ensure their job advertisements and employment applications comply with the Act. They should also educate and train their supervisors and human resources team on all of the Act's required procedures.

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• Find Out What's New in 2022 - Annual Seminar for Employers Covering Employment Legal Essentials and New Workplace Laws for 2022 (November 24, 2021)
• Good Workplace Policy is Boss - Our Template Handbook & Forms for 2021 (May 28, 2021)
• New for 2018 California Adopts Ban the Box Law - Ban The Box California 2018 Means Employers Cannot Seek Criminal Record Until After Offer to Hire Applicant(October 27, 2017)

Cindy Bamforth
December 10, 2021

Physicians and Surgeons Overtime Exemption Rates

California Labor Code section 515.6 exempts certain licensed physicians and surgeons from overtime compensation upon receipt of specified minimum hourly compensation.

California's Department of Industrial Relations (DIR) has announced its rate increase for this minimum, effective January 1, 2022, to $91.07, up from $86.49, reflecting the 5.3% increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.

To avoid California overtime premium rates, employers will need to pay such eligible professionals that minimum hourly rate, keeping accurate track of hours worked.

An exempt physician or surgeon must also meet each of the Labor Code section 515.6 skills and duties criteria. Among these, the employee must be "primarily engaged" (more than 50% of the time) in duties requiring licensure.

California Business and Professions Code section 2052 specifies such duties, requiring a medical license for anyone who "diagnoses, treats, operates for, or prescribes for any ailment, blemish, deformity, disease, disfigurement, disorder, injury, or other physical or mental condition of any person."

Physicians and surgeons paid on a salary basis will not qualify for this exemption, but may otherwise qualify for the administrative, executive or "learned profession" exemptions from overtime. Each category possesses its own distinct requirements.

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
December 2, 2021

On January 1, 2022, California minimum wages will increase as mandated by Senate Bill (SB) 3: $15.00/hour for employers with 26 or more; $14.00/hour for those with 25 or fewer employees; See California's Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April 20, 2016).

The California cities and counties below have ordinances with higher or more extensive minimums.  Employers must review and comply with the rules for locality in which their employees work. The UC Berkeley Center for Labor Research and Education publishes regular updates.

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Covered employers must also conspicuously post an updated wage notice/bulletin for each applicable jurisdiction. The above city/county link(s) provide respective current notices.

See also:

• California Summer Minimum Wage Rate Increases (June 10, 2021)
• Good Workplace Policy Is Boss - Our Template Handbook & Forms for 2021 (May 28, 2021)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
Daniska Coronado
November 24, 2021

California's Mandatory Directives for Certain Health Care Workers Remain in Place

On November 5, 2021, the federal Occupational Safety and Health Administration (OSHA)issued Emergency Temporary Standards (ETS) implementing the President's ordered mandatory vaccinate-or-test rules. The ETS directs all employers with 100+ on payroll to require worker vaccination or weekly testing.

Numerous state governments, private employers, and employees immediately challenged the ETS in federal appeals courts around the country. On November 6, the Fifth Circuit Court of Appeals (covering Texas, Louisiana, and Mississippi) temporarily barred implementation of the ETS pending full judicial review.

The Fifth Circuit extended that prohibition on November 12, terming the vaccination-or-test mandate a "one-size-fits-all sledgehammer" that : (1) "grossly exceeds OSHA's statutory authority"; (2) includes both too many workers (same rules regardless of working conditions and actual danger of exposure) and not enough ("grave danger" only for 100+ employees?); (3) is not addressing an "emergency" when the pandemic is nearly two years in; and (4) is unconstitutional.

On November 16, the Sixth Circuit Court of Appeals (Michigan, Ohio, Kentucky and Tennessee) was tasked with the full ETS review for all federal courts. The Fifth Circuit's stay remains in effect in the meantime.

OSHA has thus suspended all ETS implementation and enforcement nationwide pending the Sixth Circuit's decision.

Regardless of status or outcome of the federal rules, the various Cal/OSHA protocols remain in effect on mandatory vaccination for certain health care workers. See, Health Care Workers Must Vaccinate or Regularly Test (July 30, 2021); and Tighten Up - Required Vaccination for Certain Health Care Workers (August 13, 2021).

Take-Aways: While employers should keep an eye on how this federal challenge plays out, those health care organizations affected should continue to enforce Cal/OSHA's vaccination-or-test workplace requirements. Consulting with management-side employment counsel on best solutions to meet applicable, ever-changing and sometimes confusing requirements is sound practice.

See also:

• Religion and Mandatory Workplace Vaccination (November 5, 2021)
• Making Mandatory Mandatory - The Coming Vaccination Requirement for Larger Employers (September 10, 2021)
• Easy Does It Take Two; Cal/OSHA Revises Written COVID-19 Prevention Program(July 15, 2021)
• What's New in 2021 Infection Prevention Direction Cal/OSHA Covid-19 Emergency Temporary Standards (February 5, 2021)

Helena Kobrin
November 19, 2021

Our "Best of Pasadena" Three-Peat

Thanks to the strong support of our clients and colleagues, Bowles Law is Pasadena Weekly's "Best" for 2021, our third year running. We strive to continue delivery of capable services in the often contentious arena of personnel management.

Again, thank you! Onward.

Tim, Cindy, Helena and staff
November 12, 2021

Computer Software Professionals Overtime Exemption Rates

California Labor Code section 515.5 exempts certain computer software professionals from overtime compensation upon receipt of specified minimum compensation.

California's Department of Industrial Relations (DIR) has announced its rate increase for this minimum, effective January 1, 2022, to $50.00, up from $47.48. Alternatively, an otherwise qualified salaried employee is eligible on minimum annual compensation of $104,149.81, up from $98,907.70, payable at least once monthly at no less than $8,679.16.

An exempt computer professional must also meet each of the Labor Code section 515.5high-level skills and duties criteria. Among these, the employee must be "primarily engaged" (more than 50% of the time) in intellectual or creative work requiring the exercise of discretion and independent judgment such as ● applying systems analysis to determine "functional specifications" of hardware, software or systems; ● designing computer systems or programs; and/or ● documenting, testing, creating or modifying computer programs related to computer systems software or hardware design.

Although these workers need not be paid overtime premium under California law, employers should further ensure they meet the comparable federal law exemption, which includes a less restrictive definition of "primary" duty, a lower hourly/salaried threshold, and similar skills and duties tests.

Such computer professionals may also qualify for the administrative, executive or "learned profession" exemptions from overtime. Each category possesses its own distinct qualifications.

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
November 10, 2021