Now with over 40 million residents and some 950,000 employers, California leads the nation in the size and diversity of its workforce. Every employee in the state holds protections against discrimination, harassment and retaliation, primarily through the Fair Employment and Housing Act (FEHA).

Such workplace rights were long in coming and hard fought. At statehood (1850), California was rife with racial inequities. The new state legislature stripped the native populations of land claims, prohibited African Americans from homesteading public land and barred Chinese children from public school.

Over the next 100 years, California’s minority population continued to boom despite repeated discriminatory backlash from the white holders of power.

From 1900 to 1930, roughly 10% of Mexico’s population migrated to California and other southwestern states. During World War II, 500,000 African Americans migrated to California to work in the state’s booming wartime economy. Through the war, Mexican and African American laborers replaced white workers who had gone off to fight. When the war ended, however, many of these laborers were dismissed. Those able to find employment were relegated to menial, low-paying positions. Job discrimination against minorities remained widespread.

In response, state lawmakers introduced the Fair Employment Practices Act (1946), proposing a ban on employment discrimination based on race, religion, color or national origin. However, it took 13 years, to 1959, to enact it. That same year, California’s Unruh Civil Rights Act also became law, entitling “all persons to full and equal accommodations, advantages, facilities, privileges or services in all business establishments, including both private and public entities.”

Regardless, local governments retained the power to restrict minorities from living in California communities. The state legislature responded with the Rumford Fair Housing Act (1963). The California Real Estate Association countered with Proposition 14 to nullify the Rumford Act and restore landlord power to deny housing to anyone. Although approved by 65% of the voters, the California Supreme Court ruled Prop 14 unconstitutional, restoring the Rumford Act.

In 1980, the Fair Employment Practices Act and Rumford Housing Act were combined and renamed the Fair Employment and Housing Act, banning employment and housing discrimination in California. The FEHA also established an enforcement agency, the Department of Fair Employment and Housing (DFEH), with the power to investigate, mediate and prosecute unlawful discrimination, harassment and retaliation complaints. The DFEH is now the largest civil rights agency in the country.

The DFEH also serves as an information and resource center for employers and employees alike. For instance, the agency has developed a library of required notices and circulars on many of FEHA’s critical aspects, for example:

• Workplace Discrimination poster
  
• California Family Rights Act (CFRA) and Pregnancy Leave poster
  
• Sexual Harassment poster
  
• Sexual Harassment factsheet
  
• Transgender Rights poster
  
• Your Rights and Obligations as a Pregnant Employee poster

The FEHA and its federal counterparts, including the Civil Rights Act of 1964 and the Americans with Disabilities Act (1990), stem from the premise that persons should be judged for their competence on the job and not by factors of race, religion and the many other characteristics deemed arbitrary and irrelevant to workplace qualification.

See also,

• Abolishing Workplace Bigotry: A Work in Progress (March 5, 2020)
• What’s New in 2020 – Time’s Up Extended – Longer Three-Year Deadline For Initiating Discrimination Claims (January 10, 2020)
• Preventing Workplace Discrimination: Accommodating Disabilities, Made Simple – New Guidelines Package Available for California Employers (August 24, 2017)

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

Tim Bowles
March 26, 2021

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARPA), extending payroll tax credits provided under the federal Families First Coronavirus Response Act (FFCRA) into Fall, 2021.

The FFCRA, which expired December 31, 2020, required two types of COVID-related paid leave:
(1) up to 80 hours of emergency paid sick leave on any one of six criteria (subject to a quarantine or isolation order; advised by a health care provider to self-quarantine; experiencing symptoms, etc.) (Emergency PSL); and
(2) up to 10 weeks more of partially paid emergency family and medical leave to care for a child whose school or place of care is closed due to COVID-19 related reasons (E-FMLA Leave).

See, Federal Coronavirus Workplace Relief - New Paid Sick Leave, Family Leave and Tax Credits Effective April 2, 2020 (March 23, 2020)

To promote an employer’s continuing voluntary provision of such paid leave benefits, the ARPA permits participating businesses to take tax credits on expanded sets of criteria for these two types of COVID-related covered leaves between April 1, 2021 and September 30, 2021.

Employers who choose to provide such optional benefits must comply with all applicable ARPA rules to qualify for the tax credits, including:

• “Reset” additional allotments of emergency paid leave: Eligible employees shall now receive a fresh 80 hours of Emergency PSL and up to an additional 12 weeks of partially-paid E-FMLA Leave between April 1 and September 30, 2021 even if they previously exhausted such allotted leaves under the FFCRA.

• Expanded grounds for Emergency PSL: Employers who opt in for these ARPA credits must provide emergency paid sick leave on time missed on any of the six grounds in the FFRCA, plus to get a COVID vaccine, to recover from adverse effects of the vaccine, or while seeking or awaiting the results of a COVID test/diagnosis due to workplace exposure or at the employer’s discretion.

• Expanded grounds for E-FMLA: Employers who opt in for the credits must provide emergency partially paid family leave for an employee caring for a child whose school or place of care is closed due to COVID-19 related reasons (the prior qualification for such leave under the FFCRA) or who meets any of the now-expanded PSL leave grounds, including the original six grounds in the FFRCA or any of the three new criteria in the above Emergency PSL bullet point.

• Increased emergency paid family leave tax credit: The ARPA increases emergency family leave paid wages from $10,000 per employee to $12,000.

• Non-discrimination requirement: Employers must provide these paid leave benefits to all workers across the boards. Thus, employers may not grant these benefits based on high earnings, full-time status or seniority. (The FFCRA is silent on this point.)

Thus, participating employers should update their policies and forms and consult with legal and tax advisors for assistance complying with these provisions of the ARPA.

See also:

• Once Certain Constant: Change - New Retroactive Paid Pandemic Leave Requirements. Revisions Coming 2021 Handbook & Forms (March 19, 2021)
• Stay-away exclusion pay required pandemic wages for positive test or workplace exposure(March 18, 2021)
• What’s New 2021: Paid Pandemic Leave In The New Year - Some Benefits Optional, Some Mandatory (January 15, 2021)

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

Cindy Bamforth
March 25, 2021

With only limited exceptions, Cal/OSHA’s mandatory COVID-19 Emergency Temporary Standards (ETS) (effective November, 2020) apply to all California employers. See, What’s New in 2021: Infection Prevention Direction CAL/OSHA COVID-19 Emergency Temporary Standards (February 5, 2021)

Exclusion Pay: The ETS require covered employers to provide employee pay and to maintain seniority and all other rights and benefits during absences due to:

• a positive COVID test; or
• potential workplace COVID exposure

The ETS and their frequently-asked questions advise:

• The exclusion pay only applies if the worker is otherwise available and physically able to work. Thus, it is not required if the absence is unrelated to actual or possible exposure such as a business closure, caring for a family member, disability, or vacation.

• Such pay only applies if the employer is unable to have the employee work remotely while excluded from the workplace.

• Exclusion pay is only required if the COVID exposure was work-related. It is the employer’s obligation to amply investigate and document that outside exposure was more likely than not.

• If an employee is unable to work because of his/her own COVID symptoms, then that individual may be eligible for workers’ compensation or State Disability Insurance benefits but not exclusion pay.

• An employer, at least in theory, may require the employee to exhaust paid sick leave benefits before providing exclusion pay “to the extent permitted by law.” However, it is not clear that California would allow any such required use policy since its paid sick leave law does not expressly address the issue.

• Exclusion pay is limited to a standard quarantine period based on a single exposure or positive test.

• Employers may not estimate what an employee might receive through public benefits and deduct that estimate from exclusion pay.

See also:

• What’s New in 2021: One-Stop COVID SHOP – New California Website and Employer Portal (March 5, 2021)
• Cautionary Tale Episode 40 Big Stick Compliance – Cal/OSHA Fines Numerous Businesses For COVID-19 Violations (March 4, 2021)
• What’s New 2021: Getting Under The Hood – New Toolkit For Workplace Leave Compliance (February 25, 2021)

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

Cindy Bamforth
March 18, 2021

Under California Labor Code § 515.6, licensed physicians and surgeons are exempt from overtime compensation so long as they are paid minimum hourly compensation. Effective January 1, 2021, the Department of Industrial Relations increased that rate from $84.79 to $86.49.

Employers must accurately track an eligible person’s hours worked and pay at least that minimum/hour to avoid paying California’s overtime premium rates for more than eight hours of work in a day or 40 in a week. Other pay systems, including lump sum weekly or monthly salaries, do not satisfy this exemption.

Eligibility requires a doctor to be “primarily engaged” (more than 50% of the time) in duties requiring medical licensure. California Business & Professions Code § 2052 defines those duties as “practicing any system or mode of treating the sick or afflicted in this state” or diagnosing, treating, operating for, or prescribing for physical or mental conditions, ailments, blemishes, deformities, diseases, disfigurements, disorders, or injury.

Employers relying on this exemption should have implemented this rate change by the January 1 deadline. Any who have not done so should correct what they have been paying doctors back to that date.

A licensed medical doctor may also qualify for the administrative, executive, or professional overtime exemptions. Each category possesses its own distinct criteria, including specific duties requirements and payment by salary equivalent to at least two-times California’s minimum wage for a 40-hour week.

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

Helena Kobrin
March 12, 2021

Closely paralleling national standards, California employers must balance COVID-19 health and safety guidelines with the required Fair Employment and Housing Act (FEHA) protections for those who seek accommodation for a physical or mental disability or religious conviction and practice.

To further help achieve this balance, the Department of Fair Employment and Housing (DFEH) has again updated its “DFEH Information on COVID-19” circular (March 4, 2021), offering new policy and protocols for vaccination-related health condition inquiries.

Employers May Require Worker COVID-19 Vaccinations Subject to Anti-Discrimination and Anti-Harassment Protections: While the DFEH is careful not to provide guidance “on whether or to what extent an employer should mandate vaccination within its workforce,” the agency cautions that management must respect disability- and religion-based objections if inoculation is to be required.

Thus, if an employer mandates workforce-wide vaccination and an employee objects on the basis of disability or a sincerely held religious belief or practice, management must engage that worker in a good faith interactive process to find a reasonable accommodation short of an undue hardship to the company’s operations.

The DFEH observes that reasonable accommodation is a fact-specific determination. Possible alternatives include whether the employee is able to work from home or whether reasonable worksite procedures and safeguards are feasible to enable work on site without endangering that employee or others. For a workplace where other prevention safeguards are already in place – social distancing, masks, etc. – such accommodation should generally not be difficult to achieve.

Employers, in Theory, Need Not Accommodate an Objection to Vaccine Safety: The DFEH advises that if an employee objects to receiving a vaccination because he or she does not trust the safety of the vaccine, FEHA does not legally require the employer to reasonably accommodate that person. However, the agency’s guidelines do not address the prospect that an employer who disciplines or terminates such an objecting worker might face a retaliation claim if that worker frames his or her complaint as his/her own valid health and safety concern.

The take-away is that employers should field any objection to vaccination with patience and respect and likely work with experienced legal counsel to resolve all good faith worker concerns.

An Employer Should Plan Its COVID Vaccination Screening Questions: The agency acknowledges that employers may generally ask workers to answer COVID-related questions, including screening arriving workers for symptoms.

Thus the DFEH advises that an employer administering an in-house vaccination program may ask employees pre-vaccination screening questions that could elicit disability information so long as the inquiry is “job-related and consistent with business necessity.” (The guidelines remind employers to maintain any vaccination records as confidential medical information.)

Yet, as the DFEH offers no examples of a proper “job-related” question in this context, management should deliberately plan just how pre-vaccination screeners will proceed, including posing all questions as job- and business-related and transitioning to the required interactive process if a worker raises a disability or religious concern.

Take-Aways:

employers should consult with experienced legal counsel before implementing procedures in this sensitive area.

See also:

• Worker COVID Vaccinations - E.E.O.C.’s Expanded Guidelines for Pandemic Management (December 17, 2020)
• COVID’s Constant? … Change - EEOC’s Expanded Guidelines on Screening, Testing, and Pandemic Management (September 18, 2020)
• Workplace Discrimination in a Pandemic - California’s Updated COVID-19 FAQs Call for Careful Decision Making(August 5, 2020)

For more information, including the adoption of workplace vaccination policy and protocols, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
March 11, 2021

The California Labor & Workforce Development Agency (LWDA) has launched a new website consolidating COVID resources previously only available through separate state and local online websites including:

• new laws;
• online prevention training;
• Cal/OSHA’s emergency temporary standards;
• testing information;
• identifying symptoms;
• information about employee benefits;
• paid sick leave; and
• immediate steps to take after a workplace exposure.

The site also includes an employer portal, a one-stop hub for California employers. After the employer anonymously answers questions on its location, industry business and current COVID-19 related practices, the portal generates a tailored “road map” containing a list of relevant links to current state and local COVID industry guidance to operate safely and lawfully.

Labor Secretary Julie A. Su commented, “We recognize that in a public health crisis, guidelines and best practices are evolving. That’s why we created a central navigation hub where employers can find the latest information.”

LWDA will update the portal on an ongoing basis. To encourage its use, the agency notes the site “is for educational purposes and will not be used for state enforcement activities.”

See also,

• Cautionary Tale Episode 40: Big Stick Compliance – Cal/OSHA Fines Numerous Businesses For COVID-19 Violations (March 4, 2021)
• What’s New in 2021 - Infection Prevention Direction Cal/OSHA COVID-19 Emergency Temporary Standards (February 5, 2021)
• Workplace Rhythm & Cues - Our Employee Policy Handbook & Forms for 2021 (January 21, 2021)
• Cautionary Tale Episode 39: Fish Story Gets Real – Cal/OSHA Fines Frozen Food Firm for COVID-19 Violations (December 2, 2020)

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

Cindy Bamforth
March 5, 2021

Likely to be quickly signed by Governor Newsom, Senate Bill (SB) 95 significantly expands California employer obligations to provide COVID-related paid sick leave in addition to established sick leave benefits, retroactive to January 1, 2021.

While we will report on the bill’s specifics once it is officially part of the Labor Code, its passage underscores the vital importance of updated, compliant workplace policies.

Accordingly, we will be promptly offering revised model forms to track with this significant development.

Current for 2021, our model forms will now include:

• Workforce pandemic recovery and prevention measures;
• Vaccination promotion, requirements and procedures;
• Paid sick leave benefits under all related federal and California directives, including the upcoming Covid-19 supplemental requirements;
• Employment application and accompanying job description template (including key requirements for Americans with Disabilities Act compliance and California’s constitutional privacy protections);
• Pre-employment protocols (properly positioning the process to meet changing legal requirements);
• Employment agreement (including confidentiality/non-disclosure of company trade secrets);
• Alternative dispute resolution agreement (also properly setting terms to match changing standards for private mediation and arbitration in lieu of court action);
• Meal and rest period acknowledgments (confirming employer provision of required breaks); and
• Termination policy, checklist and standard release (to be applied as appropriate for full transition and greater protection against later, preventable suits).

Our comprehensive model employee handbook will now include:

• Conditions of company employment, including mutual “at will” termination rights;
• Discrimination and harassment, prevention and handling (including new standards stemming from government response to COVID-19 conditions);
• Employee compensation;
• Employee benefits;
• Employee job performance;
• Limits of employee privacy, including valid employer access to employee-maintained databases and social media guidelines;
• Paid and unpaid leaves, including the latest supplemental paid sick leave requirements;
• Workplace health and safety;
• Job-related injury or illness, including prevention plan priorities; and
• Drug and alcohol policy, including testing and violations procedures and standards.

See also,

• Stay – Away “Exclusion” Pay – Required Pandemic Wages for Positive Test or Workplace Exposure (March 18, 2021)
• Preventing Discrimination in a Pandemic – California’s Expanded Guidelines on Workplace Vaccination Practices (March 11, 2021)
• What’s New in 2021: One-Stop COVID Shop – New California Website and Employer Portal (March 5, 2021)

CONTACT US TO ORDER NOW
To order or for more information, contact Office Manager Aimee Rosales at 626.583.6600 or email her at officemgr@tbowleslaw.com.

March 5, 2021

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’s franchise, 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-Aways:

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