Cal/OSHA continues to “encourage” business compliance with its pandemic regulations by targeting, fining and announcing violators on broad scale. Starting with several supermarkets and a frozen food plant we earlier reported, Cal/OSHA has now issued COVID-19 fines to businesses and facilities that include:

• Prisons
• Farmers and farm labor contractors
• Manufacturing
• Employment and temporary staffing agencies
• Wholesalers
• Medical professionals (dentists, physicians,
• Supermarkets
• Construction
• Millwork
• Food processing/manufacturing
• Hospitals
• Solid waste collection
• Packing and crating
• Nursing care facilities
• Law enforcement
• Garden center and farm supplies
• Retail stores
• Restaurants
• Messenger/delivery company
• Homes for the elderly and retirement communities
• Transportation
• Car dealer
• Cattle ranching
• Animal slaughterhouse and processing
• Universities
• Bakery

The fines range from the trivial (e.g., $475.00) to, so far, San Quentin State Prison’s top assessment at $396,070.

Violation examples include failures to follow the rules on:

• establishing/implementing procedures to investigate exposures
• notifying employees of exposures or providing post-exposure medical evaluations;
• recording illnesses/injuries on the Cal/OSHA Form 300;
• having and effectively implementing an Injury & Illness Prevention Plan with respect to COVID-19;
• reporting to Cal/OSHA serious injuries/illnesses or deaths;
• requiring physical distancing of at least six feet;
• utilizing physical barriers when physical distancing is not possible;
• implementation of screening for employees and visitors;
• investigating incidents of COVID-19 and establishing close contacts;
• excluding exposed employees;
• having suitable cleaning materials; and
• having procedures/equipment in place to avoid or contain transmission in laboratories.

Employers can consult Cal/OSHA’s multi-lingual guidances by industry, webinars, training and other educational materials, and FAQs for the required protective and compliance measures. By the appropriate websites, they should also confirm what COVID-19 situations trigger the duty to record and report to OSHA and/or to their local public health authorities.

Retaliation (e.g., termination, discipline) against employees who raise COVID protection issues is of course also unlawful. Thus, the Labor Commissioner cited a McDonald’sfranchise, its owners and HR manager for $125,913 in fines for firing four employees who had gone out on strike and complained to the authorities over COVID-19 workplace safety issues.

See also:

• Cautionary Tale Episode 39: Fish Story Gets Real – Cal/OSHA Fines Frozen Food Firm for COVID-19 Violations (December 2, 2020)
• Cautionary Tale Episode 38: Food for Second Thought – Cal/OSHA Fines Supermarkets for COVID-19 Violations (October 8, 2020)
• Suffocation Orders – California’s Safety Agency Now With Pandemic “Imminent Hazard” Shutdown Powers (October 2, 2020)
• Pandemic Police on Patrol – Cal/OSHA Hitting Employers Statewide for COVID-19 Non-Compliance (September 10, 2020)

Take Away: Employers should adopt and apply a full set of Cal/OSHA-compliant COVID protocols until the state withdraws them. We continue to advise and equip businesses with updated templates to this end. For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
March 4, 2021

The California Department of Fair Employment and Housing (DFEH) has published an important toolkit for employer compliance with the 2021 expanded California Family Rights Act (CFRA) and the Pregnancy Disability Leave law (PDL). See, California’s Expanded Family and Medical Leave Significantly Impacts Small Business. (November 12, 2020)

Under the expanded CFRA, all employers with five or more on payroll must provide eligible workers with up to 12 weeks of unpaid job-protected family and medical leave each year to care for their own or a family member’s serious health condition or to bond with a new child.

California’s PDL also requires employers with five or more on payroll to provide up to four months of unpaid disability leave per pregnancy.

The toolkit contains two health care provider certification forms, two quick reference guides and three fact sheets. An interactive app for new parents and pregnant employees will be soon available as well.

The toolkit also includes revised required posters in six languages. See, Family and Medical Leave and PDL.

Covered employers should promptly familiarize themselves with and train their supervisors on these 2021 documents, post/distribute the required posters, and update their employee handbooks, leave packets and absence request forms.

See also,

• Workplace Rhythm & Cues (January 21, 2021)
• What’s New in 2021: Crime Leave Spreading – California’s Broader Protections for Victim-Related Employee Time Off (October 15, 2020)
• Pregnancy Accommodation in California, New, Simpler Certification Form for Disability Leave, Transfer and Other Reasonable Accommodation (November 15, 2018)

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

Cindy Bamforth
February 25, 2021

Effective November 30, 2020, Cal/OSHA issued emergency temporary standards or “ETS” to prevent the workplace spread of COVID- 19. The ETS contains a slate of mandatory measures applicable to all California employers with exceptions for ● employees working at home; ● one-employee worksites where there is no contact with others; and ● certain health care employers otherwise covered by Cal/OSHA’s Aerosol Transmissible Diseasesguidelines.

The ETS requirements include:

• Written COVID-19 prevention program. This includes information on identifying, evaluating, inspecting for and correcting COVID-19 hazards; description of physical distancing, face coverings, and engineering controls; a system for communicating COVID symptoms and hazards; employee training and instruction; exclusion of COVID cases from the workplace and job pay and protection; reporting, recordkeeping and access; and criteria on return to work, outbreaks; and infection prevention rules for employer-provided housing and/or transportation. Cal/OSHA has developed a COVID-19 Model Prevention Program to assist employers to develop their particular programs.
• Written notification of potential COVID exposure. This includes written notice of potential exposure within one business day to all employees and independent contractors who may have been exposed and written notice to the local health department within 48 hours of learning about an outbreak of three or more COVID cases in a 14-day period.
• Physical distancing requirements. This includes installation of “cleanable solid partitions” at fixed work locations where it is not possible to maintain distancing.
• Face coverings. Employers must also provide detailed instructions on when face coverings must be worn in the workplace.
• Mandatory paid time off requirement. Employers must pay so-called “exclusion pay” and maintain seniority and all other rights and benefits for anyone who must quarantine or isolate after a workplace exposure who is otherwise able and available to work.
• Obligation to offer free COVID tests. If testing is required under any portion of the ETS, then employers must offer free service during working hours to all employees with potential workplace exposure.

Employers should fully familiarize themselves with these criteria and consult with employment counsel to assist in their implementation.

We will address particular features of the ETS in our upcoming articles as well as in our February 26, 2021 employment law webinar.

See also:

• Workplace Rhythm & Cues (January 28, 2021)
• Paid Pandemic Leave in the New Year – Nationwide Voluntary COVID-Related Paid Sick Leave (January 15, 2021)
• Freeing the Asymptomatic – California’s Shifting Sands Shortening of Quarantine Compliance Periods (December 18, 2020)

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

Cindy Bamforth

February 5, 2021

The International Franchise Association, along with the Dunkin’ Donuts, Supercuts, and Asian-American Hotel Owners franchisee associations, have sued California in San Diego’s federal court to prevent the state from classifying franchisees as employees.

A franchise is a business model where one company (franchisor), e.g., McDonald’s or Burger King, grants the right to another (franchisee, the local outlet) to sell the franchisor’s products or services under an identifying trademark and operating standards in exchange for license fees.

While franchisees have operated as independent contractors to their franchisors for decades, the model comes into potential conflict with California’s strict ABC “Dynamextest,” instituted in 2014 and now incorporated in Labor Code section 2775. See, Independent Contractor Status in California Now Falls Under Radically Different Rules(June 1, 2018). A worker is automatically presumed to be an employee unless the hiring company can prove:

A. The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;

B. The person performs work that is outside the usual course of the hiring entity’s business; and

C. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Prong “A” – no control by the hiring entity – and prong “B” – work outside the hiring entity’s course of business – appear directly contrary to the longstanding franchise model. For example, franchisors exercise considerable control over what franchisees do in building design, color schemes, uniforms, what can be sold or what services can be provided, and so on. Franchises are also clearly in the same business as their franchisors.

The issue is significant. According to the suit, in 2019 there were some 82,600 franchises in California, generating $82.9 billion in revenue and employing 827,000 people earning $35.3 billion in payroll. Unlimited franchise opportunities exist in dozens of industries.

Citing to the Federal Trade Commission’s “Franchise Rule,” the suit contends franchisees are independent businesses and not employees of the franchisor. It also cites a September 2020 Massachusetts court ruling barring the ABC test conversion of a franchisee to an employee as an evisceration of the franchise business model.

Stay tuned.

See also,

• California’s Newest Independent Contractor Law Part 2 – Revised Referral Agency Exception (September 24, 2020)
• California’s Newest Independent Contractor Law Part 1 – Revamped Business-to-Business Exceptions (September 17,2020)
• Gagging the Gigs, Plan B – California Remodels Exceptions to Its Strict Independent Contractor Test (September 11, 2020)

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

Helena Kobrin

January 8, 2021

California’s Broader Protections for Victim-Related Employee Time Off

Effective January 1, 2021, California workers will have expanded protection for crime victim-related leaves. Assembly Bill (AB) 2992.

Labor Code section 230 currently prohibits any employer, regardless of size, from terminating, discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking, for taking time off to obtain or attempt to obtain court-related “relief” stemming from such crimes (for example, restraining orders). Labor Code 230.1, applicable to employers with 25 or more on payroll, further includes medical, shelter, counseling services and related prevention action as qualified “relief” time.

Unless not possible under the circumstances, an employee must give reasonable advance notice of the need to take such time off. A worker must provide management within reasonable time a satisfactory written certification establishing the need for any unscheduled absence, including a police report, court order, or a medical or counseling attestation.

An employee may file a complaint for claimed violation with the Division of Labor Standards Enforcement. It is a misdemeanor for an employer to refuse to rehire, promote, or restore a worker determined by a grievance procedure or legal hearing to be eligible for such rehiring, etc.

Current law does not state who is a “victim” protected against such adverse employer action. Revised sections 230 and 230.1 provide specific definitions:

• a victim of stalking, domestic violence, or sexual assault;
• a victim of a crime that caused physical injury or that caused mental injury and a threat of physical injury;
• a person whose immediate family member is deceased as the direct result of a crime; or
• a victim of a crime compelled to testify on the matter.

Rather than just domestic- and sex-related offenses, “crime” for which such leave protection is justified will now include any California-prohibited misdemeanor or felony and any federally prohibited act of terrorism against any state resident wherever that act may have occurred.

In addition to police, medical or counseling documentation, the expanded law includes a catch-all category for the required certification confirming the need for any unscheduled absence: any other writing that reasonably verifies that the crime or abuse occurred.

See also:

• Workplace Pandemic Prevention – Model Employee Handbook and Forms Include Vital COVID-19 Protocols (September 3, 2020)
• Give Me a Break! – Time Off for Fire Fighting, Crime Victims, Drug Rehab, School Visits, and More. (June 22, 2018)
• Helping the Haunted – California Employers Must Accommodate Victims of Domestic Violence, Sexual Assault or Stalking. (July 7, 2017)

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

Tim Bowles

October 15, 2020

California’s Broader Protections forVictim-Related Employee Time Off

California’s Safety Agency Now With Pandemic “Imminent Hazard” Shutdown Powers

Sacramento continues to equip the state’s Division of Occupational Safety and Health (Cal/OSHA) with expanded powers in these days of COVID. Assembly Bill (AB) 685 (Labor Code 6325(b)), effective for two years from January 1, 2021, enables the agency to shut down any business operation or place of employment when, in Cal/OSHA’s “opinion,” that venue poses a COVID-related “imminent hazard” to such operations or workforce.

There are some boundaries:

• Cal/OSHA’s power is limited to “the immediate area in which the imminent hazard exists”; the agency may not prohibit operations or access to portions of a workplace “which is not exposing employees to, or is outside such area of imminent hazard”;
• Cal/OSHA may not apply this power if it would “materially interrupt the performance of critical government functions essential to ensuring public health and safety functions or the delivery of electrical power or water” (e.g. Cal/OSHA can’t shut itself down for any such hazard); and
• The agency has no power to prevent entry to or use of such a condemned venue for the sole purpose of eliminating the dangerous conditions.

Cal/OSHA regards any hazardous condition or practice “imminent” “which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of the hazard can be eliminated through regular Cal/OSHA enforcement procedures.” Since the law only requires the agency’s “opinion” on the matter, apparently Cal/OSHA will know – and be trusted to know — an imminent hazard when it sees one.

Suffice to say this new power should motivate continued effective commercial pandemic prevention and control actions to prevent and limit workplace infection to absolute minimums.

See also:

• Pandemic Police on Patrol-Cal/OSHA Hitting Employers Statewide for COVID-19 Non-Compliance (September 10, 2020)
• COVID’s Constant? …Change – E.E.O.C.’s Expanded Guidelines on Screening, Testing and Pandemic Management (September 18, 2020)
• Update California COVID Plan B- “Blueprint” Workplace Return Improving Conditions Statewide (September 25, 2020)

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

Tim Bowles

October 2, 2020

California’s Safety Agency Now With Pandemic “Imminent Hazard” Shutdown Powers

California’s Expanded Family and Medical Leave Significantly Impacts Small Business

Under existing law, employers with 50 or more on payroll are required to provide unpaid family and medical leave under the California Family Rights Act (CFRA) and those with 20 or more on payroll had to provide unpaid baby-bonding time off under the New Parent Leave Act (NPLA).

Effective January 1, 2021, Senate Bill 1383 (SB 1383) repeals the NPLA and greatly expands the CFRA’s leave entitlements.

Under the expanded CFRA, employers with as few as five employees must provide eligible workers with up to 12 weeks of unpaid job-protected family and medical leave each year.

An eligible employee must be employed for more than one year with the employer and have worked at least 1,250 hours during the 12 months prior to the leave. Previously, the law excluded highly-paid salaried employees; the expanded law does not.

Eligible employees may take up to 12 weeks of consecutive or intermittent unpaid leave within a 12-week period.

Eligible employees can take leave to bond with a new child or to care for themselves or a child, parent, spouse or domestic partner. The expanded CFRA also permits leave under these new qualifying reasons:

• To care for the serious health condition of a child of any age, including a child of a domestic partner,
• To care for the serious health condition of a grandparent, grandchild, or sibling;
• To bond with a new child within one year of birth, adoption, or foster care placement (both parents working for the same employer no longer have to split the 12 weeks of leave); or
• For reasons related to military activities/deployment of a specified Armed Forces family member

Employers may require limited documentation to substantiate the need for the leave. Upon granting the leave request, employers must guarantee reinstatement to the same or a comparable position.

Employers must continue paying group health insurance premiums as if the employee were actively working.

Although the leave is unpaid, the employee must be allowed to use available paid sick leave and accrued vacation pay for the employee’s own serious health condition. For CFRA leaves on other grounds, the employee must be allowed to use accrued vacation.

Employers with 50 or more on payroll must also continue to comply with the federal Family and Medical Leave Act (FMLA). Such employers will now potentially face a dual leave track. For example, the expanded CFRA permits for time off to care for a sibling, FMLA does not. Thus, an employee could potentially use up to 12 weeks of expanded CFRA to care for a sibling and then another 12 weeks of FMLA to care for a parent in a single year.

Covered employers should promptly update their employee handbooks and absence request forms. They should also educate and train their supervisors on the new law.

See also,

• Carpe Potestatum: Seize the Opportunity – Employee Handbook, Forms & Policies With 2021 Updates (November 6, 2020)
• What’s New in 2021: Crime Leave Spreading – California’s Broader Protections forVictim-Related Employee Time Off (October 15, 2020)
• What’s New in 2021 – Industry Suffocation Orders – California’s Safety Agency Now With Pandemic “Imminent Hazard” Shutdown Powers (October 2, 2020)

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

Cindy Bamforth
November 12, 2020

California’s Expanded Family and Medical Leave Significantly Impacts Small Business

COVID-19 Paid Leave and Tax Credits

As reported in Federal Coronavirus Workplace Relief (March 23) and COVID-19 Gets Noticed (April 2) the March 18 Families First Coronavirus Response Act (FFCRA) requires most employers with fewer than 500 on payroll to provide paid sick and family leave wages for certain COVID 19-related absences.

The FFCRA includes employer tax credits to fully offset qualified leave amounts paid between April 1 and December 31, 2020, including an employer’s share of Medicare tax and its cost of maintaining absent workers’ health insurance coverage.

On March 31, 2020, the Internal Revenue Service published frequently-asked questions (FAQs) on steps to obtain these credits.

FAQ Nos. 12-13 and 37-43 detail how eligible employers can claim the credits on federal employment returns, including IRS Form 941.

Employers may reimburse themselves more quickly by drawing from their federal employment tax set-asides to matching leave pay-outs, claiming any remaining difference as a credit on a future return. See, Form 7200, Advance Payment of Employer Credits Due to COVID-19. Form 7200 Instructions include helpful background information and examples.

See also:

• When the Show Must Go On; Key Protection for an Employee’s Covid-19 Diagnosis/Symptoms (April 8, 2020)
• Safer at Home (April 3, 2020)
• Unemployment Goes Viral; Furlough or Layoff, Distinction without a Difference? (March 28, 2020)
• Workplace Safety Nets (March 27, 2020)
• Telecommuting in Response to Coronavirus Outbreak (March 18, 2020)

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

Cindy Bamforth

April 9, 2020

COVID-19 Paid Leave and Tax Credits

Broader “Worker-Friendlier” COVID Leave Criteria?

The Families First Coronavirus Response Act (FFCRA), effective April 1 to December 31, 2020, requires most businesses with fewer than 500 employees to provide: ● two weeks emergency paid sick leave benefits for employees who cannot work or telework for any one of six COVID-19 related reasons; and ● up to 12 weeks of partially paid family leave to care for one’s child due to COVID-19-related school or other “place of care” closures. See, Federal Coronavirus Workplace Relief (March 23, 2020).

Employers have since relied on the U.S. Department of Labor’s (DOL) rules and frequently-asked-questions to apply these benefits narrowly. However, a recent New York court ruling more favorable to employees may be the precursor for invalidating some of these regulations nationwide. Among that federal district court judge’s directives:

• No-work-available rule shot down. Contrary to the DOL rules, the federal court judge found employers cannot deny FFCRA benefits to otherwise eligible workers on the grounds that they would be “furloughed” (temporarily laid off ) due to slowed or closed operations in any event.
• Narrow definition of health care provider vacated. The FFCRA permits “health care providers” to deny FFCRA leave to their employees. The federal court rejected the DOL’s inclusion of entities and individuals only indirectly involved in health care delivery (e.g., hospital equipment suppliers; a hospital’s janitorial staff). Thus, only actual health care providers — doctor offices, hospitals, health care centers, etc. – can deny such benefits and only to those who actually deliver such services – doctors, nurses, medical assistants, etc.
• No employer consent required for intermittent leave. The judge also invalidated the DOL rule that required remote workers to obtain employer consent to take FFCRA leave intermittently.
• Documentation requirement must be consistent with FFCRA’s language. The court further cut out the DOL rule requiring employees to submit satisfactory documentation of their eligibility in advance of taking FFCRA leave. Rather, a worker may give notice of his/her leave qualification after receiving the first paid workday (or portion thereof) or, for foreseeable emergency paid family leave, “as is practicable.”

Takeaways and Best Practices:

While a holding currently restricted to a single New York federal court, much wider application is possible, for example, by the results of any DOL appeal or by the agency’s agreement to relax such rules nationwide.

Meanwhile, employers should consider implementing practices and procedures consistent with this court’s ruling and obtaining advice of competent legal counsel when fielding FFCRA leave requests.

See also,

• Paid Sick Leave Going Viral – California Cities and Counties Expanding Pandemic-Related Benefits (May 29, 2020)
• COVID-19, I Presume – Workers Compensation Coverage for Diagnosed Workers (May 20, 2020)
• It’s a Wash – COVID 19 Paid Leave and Tax Credits (April 9, 2020)
• COVID-19 Gets Noticed (April 1, 2020)

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

Cindy Bamforth

August 21, 2020

Broader “Worker-Friendlier” COVID Leave Criteria?