The U.S. Supreme Court has come to opposite conclusions in two cases challenging federally mandated COVID-19 vaccinations.

Companies with 100+ Employees

In National Federation of Independent Business v. Dept. of Labor, Occupational Safety and Health Administration, the Court (6-3) invalidated mandatory requirements to vaccinate or test weekly for companies with 100+ workers. The majority found that OSHA exceeded its authority by:

• Imposing such requirements via Emergency Temporary Standards (ETS) enacted without the normally required rule-making process, including public comment; and
• Ordering a broad public health measure for the first time in its existence, affecting 84 million people for a “universal risk,” and not a particular workplace occupational hazard.

The Court placed the ETS on hold until the lower Court of Appeals conducts its review of these nationwide standards and its decision receives any Supreme Court review.

Healthcare Workers at Medicare and Medicaid Facilities

In Biden v. Missouri, a five-justice majority ruled the Secretary of Health, Education and Welfare (Secretary) may enforce a mandatory vaccination rule for medical facility employees, contractors, and volunteers. Non-complying employers may have their Medicare and Medicaid contracts terminated. The majority found:

• The Secretary had acted within the authority conferred by Congress to protect health and safety of patients in those facilities; and
• Even though the vaccine mandate goes further than prior rules, it is routine for the Secretary to impose conditions related to infectious diseases and worker qualifications on such medical facilities.

The Court’s ruling is temporary while the lower appeals court, and potentially the Supreme Court, review the Secretary’s mandate more closely.

Both cases drew strong dissents taking issue with the premises for the rulings.

Take-Aways:

• Medical facilities providing Medicare or Medicaid-covered services must comply with the Secretary’s mandate pending final outcome in the Biden case;
• Whatever the final outcome of either case, affected employers – and employers of any size – must ensure they comply with applicable state and local vaccination requirements;
• Competent legal advice is crucial in navigating the ever-changing universe of laws, guidances, and rules covering COVID-19.

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

See also:

• What’s New In 2022 Sewing Up Pandemic Conflicts - California’s Newly Modified, Uniform Quarantine/Isolation Period (January 14, 2022)
• Stay-Away “Exclusion” Pay – Require Pandemic Wages for Positive Test or Workplace Exposure (March 18, 2021)

Helena Kobrin
January 21, 2022

California has at last moved to eliminate conflicting agency directions on pandemic-related isolation and quarantine timeframes.

As covered in What’s New in 2022 Going the Distance - Cal/OSHA Updates Emergency Temporary Standards, on December 16, 2021, Cal/OSHA revised its COVID-19 Prevention Emergency Temporary Standards (ETS), effective January 14, 2022 and applying to most California workers not covered by the Aerosol Transmissible Diseases standard.

The revised ETS changed the COVID isolation and quarantine periods for workers testing positive or exposed to a positive case. For example, all fully-vaccinated, asymptomatic close contacts were permitted to return to work immediately with social distancing for 14 days. All unvaccinated asymptomatic close contacts could return to work either: (i) after 14 days with no physical distancing requirements; (ii) after 10 days with distancing for 14 days; or (iii) after seven days upon receipt of a negative test at least five days after the close contact, with physical distancing for 14 days.

Then on December 27, the Centers for Disease Control and Prevention (CDC) shortened the recommended time for isolation and quarantine to as little as five days. The California Department of Public Health (CDPH) promptly matched those isolation and quarantine five-day timeframes along with some additional testing and masking requirements.

These standards contradicted many of the ETS’s 14- and 10-day exclusion periods.

Accordingly, on January 6 and through two new FAQs, Cal/OSHA again adjusted its recommended isolation and quarantine periods to largely align with the CDPH’s. Not that the field is no longer complex. The FAQs address the CDPH exclusion periods in three detailed tables, which must be carefully reviewed to determine whether and for how long to exclude a particular COVID case or a close contact from the workplace.

Take-Aways:

As of January 14, 2022, employers should follow the Cal/OSHA exclusion tables provided in the new FAQs. Employers must also check for any local county guidance, such as Los Angeles County’s Isolation and Quarantine orders. Consulting with management-side employment counsel on best solutions to meet applicable, ever-changing and sometimes confusing workplace exclusion requirements is always sound practice.

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

See also:

• What’s New in 2022 Going the Distance - Cal/OSHA Updates Emergency Temporary Standards (December 22, 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
January 14, 2022

The California Labor Commissioner has revoked the garment manufacturing license of VRP Fashion, Inc. for workplace violations, putting it out of business.

A May, 2021 inspection discovered that owner Veronica Rojas Pablo had falsely claimed in VRP’s license application that the company had no employees. The Commissioner also found that Ms. Pablo failed to produce evidence of workers’ compensation insurance, to respond to a stop work order and to appeal citations for VRP non-compliance. On a follow-up visit, Ms. Pablo reportedly barred the inspector from entry and had her workers leave out the back door.

VRP’s closure comes on the implementation of the Garment Workers Protection Act (GWPA), effective January 1, 2022, which bans “by the piece” compensation for garment workers except as an “incentive bonus” on top of minimum wage payment for every hour worked. Citing rife abuse of such workers, the GWPA also puts new teeth into state regulation of that industry, for example expanding the definition of “garment manufacturer” to retailers who have until now escaped enforcement by creating “layers of subcontracting.”

Take-Aways:

• Employers must comply with all applicable – and changing – workplace laws;
• False statements and less-than-honest tactics in response to government regulation are never a good idea;
• For the exploitation cited in the GWPA’s enactment, California has a “new sheriff in town” to protect workers in this state’s garment industry, the largest in the nation.

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

See also:

• Cautionary Tale Episode 45 Old Boy Kill-Joy: EEOC Sues Employer for Sexual Harassment and Retaliation (September 30, 3031)
• Cautionary Tale Episode 44 Fined Dining: Restaurant Must Eat $1.6M Bill for Labor Violations (August 26, 2021)
• California Piece Work Is a Piece of Work: Haulers and Other Employers May Not Pay Purely by the Mile or Other Production (April 23, 2021)

Helena Kobrin
Tim Bowles
January 6, 2022

The Internal Revenue Service has announced its 2022 optional standard mileage reimbursement rate for employee business use of a personal vehicle, effective January 1, 2022, up from 56 cents to 58.5 cents/mile.

These standard business mileage rates stem from annual government studies of fixed and variable automotive operating costs, including insurance, repairs, maintenance, gasoline and oil.

Under California Labor Code section 2802, employers must reimburse employees for all actual work-related expenses necessarily incurred.

According to California’s Division of Labor Standards Enforcement, using the IRS mileage reimbursement rate will satisfy an employer’s reimbursement obligation unless the employee provides evidence demonstrating the rate does not cover all actual and necessary business-related vehicle expenses, in which case the employer must pay the difference.

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

Cindy Bamforth
December 28, 2021

On December 16, 2021, California’s Occupational Safety and Health Standards Board readopted 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 CPP in 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

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-Aways:

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

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.***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)
• 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

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:

• 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

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