From February 1 to April 30, California employers which have had ten or more persons on payroll at any time the previous year must post an annual summary of work-related injuries and illness (Cal/OSHA Form 300A).

This posted information stems from the more-detailed “Log of Work-Related Injuries and Illnesses” (Cal/OSHA Form 300).

Unless Cal/OSHA specifically directs a business otherwise, California employers in certain low-hazard industries are exempt from recording workplace injuries and illnesses.

Companies with 250 or more employees – as well as “Appendix H” businesses with 20-249 on payroll – are also required to electronically submit Form 300A to Cal/OSHA.

Regardless of size or exemption, California employers must immediately report to the nearest Cal/OSHA district office all occupational incidents that result in any fatality, hospitalization for more than 24 hours (other than for observation), or loss or serious disfigurement of any body part.

See Cal/OSHA’s recordkeeping website for more information and forms.

See also,

• What’s New in 2021: Infection Prevention Direction CAL/OSHA COVID-19 Emergency Temporary Standards (February 5, 2021)
• Safety Safeguarded - Required Injury and Illness Recordkeeping and Posting in California (March 8, 2019)

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

Helena Kobrin
February 19, 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 Diseases guidelines

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

Nationwide Voluntary COVID-Related Paid Sick Leave: Until its December 31, 2020 expiration, the federal Families First Coronavirus Response Act (FFCRA) required COVID-19-related emergency paid sick leave and emergency paid family leave for nearly all employers with fewer than 500 on payroll. The FFCRA’s tax rules also created a 100% wash by federal tax credits up to the leave amounts paid.

To encourage an employer’s voluntary provision of such FFCRA paid sick leave to employees who have not already used such benefits, the Consolidated Appropriations Act (CAA), 2021 extends the “100% wash” tax credits to March 31, 2021.

The CCA also extends the FFCRA’s documentation and compensation requirements. Employers must not retaliate against any employee who seeks to take such paid leave.

Employers who choose to provide such optional benefits should update their policies and forms accordingly.

California’s Mandatory Pandemic-Related Paid Sick Leave: California employers also should become familiar with newly issued Cal/OSHA emergency temporary standards (November 30, 2020) requiring “exclusion” pay and benefits to employees who are on leave to prevent any further workplace exposure. Exclusion pay is not required if an employee is unable to work for other reasons (e.g., business closure, caring for a family member or experiencing COVID-19 symptoms) or if employer can establish the excluded employee’s exposure was not work related.

See also:

• What’s New in 2021: Virtual - Employment Legal Essentials and New Workplace Laws (January 6, 2021)
• New Year, Policy Clear - Employee Handbook & Forms for 2021 (January 4, 2021)
• It’s a Wash - COVID 19 Paid Leave and Tax Credits (April 9, 2020)
• Federal Coronavirus Workplace Relief - New Paid Sick Leave, Family Leave and Tax Credits Effective April 2, 2020 (March 23, 2020)

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

Cindy Bamforth
January 15, 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 “Dynamex test,” 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

The Internal Revenue Service (IRS) has announced its 2021 optional standard mileage reimbursement rate for employee business use of a personal vehicle, effective January 1, 2021, down from 57.5 cents to 56 cents/mile.

These annual adjustments stem from government survey 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 the state’s Division of Labor Standards Enforcement, using the IRS mileage reimbursement rate will normally satisfy an employer’s reimbursement obligation. However, if the employee can show the IRS reimbursement rate does not cover all of his/her actual and necessary business-related vehicle expenses, the employer must pay the difference.

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

Cindy Bamforth
December 29, 2020

From 2016’s Senate Bill (SB) 3, California minimum wage will increase on January 1, 2021 to $13.00 per hour for employers with 25 or fewer employees and $14.00 for employers with 26 or more. SB 3’s final statewide increase to $15.00 per hour will be in 2022 for larger employers and in 2023 for those with 25 employees or less. See California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April, 2016).

Several municipalities have ordinances directing even higher minimums. This can present particular challenges for businesses with workers active in one or more of these local jurisdictions.  Best practice is to set the hourly rate by highest among the applicable cities or counties.  The UC Berkeley Center for Labor Research and Education publishes regular updates.

Employers should promptly review the information for their location(s). Some cities require written notice to employees of the increase by a certain date.  Covered employers must also conspicuously post an updated wage notice/bulletin for each applicable jurisdiction.

See also:

• New Year’s Resolutions: Start Now - Secure Employee Handbook, Forms & Policies With 2021 Updates (October 10, 2020)
• New Local Minimum Wage Rates Effective July 1, 2020 (June 18, 2020)

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

Helena Kobrin
Daniska Coronado
December 23, 2020

Failing to list each required paystub item – nine basic ones and up to another seven for piece pay recipients – for every worker and in every payroll period can subject a California employer to potentially devastating damages and civil penalties. For example, a trucking company employing 50 drivers and five office staff could find itself facing up to $1,000,000 in such damages and penalties for the simple – and inadvertent – omission of its address on the stubs over the space of just 12 months.

A. The First Nine Required Pay Stub Items: Labor Code 226(a) specifies the basic items for all earnings statements (paystubs):

(1) Gross wages earned;
(2) Total hours worked (except salaried exempt employees);
(3) Piece rate units and rate, if applicable;
(4) All deductions, including taxes, disability insurance, and health and welfare payments (deductions ordered by the employee may be aggregated and shown as one item);
(5) Net wages earned;
(6) The inclusive dates of the pay period;
(7) The name of the employee along with the last four digits of his or her social security number (listing full number is a violation) or an employee identification number;
(8) The name and address of the legal employing entity; and
(9) All applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.

B. Required Listing of Employee’s Paid Sick Days Benefit: Under Labor Code 246(i), most employers are also required to list:

(10) Written notice of the amount of available paid sick leave on the employee’s pay stub or a separate writing provided with the employee’s payment of wages.

An employer which provides unlimited sick leave (no maximum cap) may meet this notice requirement by indicating “unlimited” sick leave on such wage statements or separate writings.

C. Further Required Paystub Listing of Rest and Recovery Pay for Certain Employers: By Labor Code 226.2, an employer utilizing a piece work (production-based) compensation system must list three further items on each pay statement or stub:

(11) Total hours of compensable rest and recovery periods in the applicable pay period;
(12) Rate of compensation for such periods; and
(13) Gross wages paid for such rest and recovery periods during that pay period.

Under Labor Code 226.2(a)(2)(B), and unless a piece work-paying employer includes an hourly minimum wage base rate in its compensation system, that employer will also have to list yet three more items on each pay stub for affected workers:

(14) Total hours of other compensable nonproductive time in the applicable pay period;
(15) Rate of compensation for such time; and
(16) Gross wages paid for that time during the pay period.

This state’s Labor Commissioner lists samples for:

• a basic nine-item paystub; and
• a 16-item stub for piece work compensation plans

See also:

• What’s Even Newer in 2021 California Expands COVID-19 Paid - Detailed, Retroactive Requirements for Employers with 26 or More on Payroll (April 9, 2021)
• Minimum Wage Laws, a History (April 2, 2021)
• Workplace Rhythm & Cues - Our Employee Policy Handbook & Forms for 2021 - Including Updated COVID-19 Guidelines (January 21, 2021)
• What’s New In 2021: California Minimum Wage Increases (December 23, 2020)

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

Continually changing COVID-19 quarantine and isolation standards – commonly at variance between federal, state, and local governments -- have joined death and taxes as the only certain things in life.

The latest Cal/OSHA emergency temporary standards (ETS) (November 30, 2020) specified a 14-day symptom-free employee quarantine after a COVID-19 exposure.

Now two weeks later comes the latest California Department of Public Health (CDPH) COVID-19 Quarantine Guidance (Guidance) and accompanying Executive Order N-84-20 (Executive Order), suspending that ETS 14-day quarantine rule for many asymptomatic workers.

Instead, based on the latest CDC pronouncement (December 2) and unless an applicable local public health specifies another duration, the December 14 Guidance directs a ten-day quarantine for an asymptomatic individual after the last close contact with a COVID-confirmed or symptomatic person.

The Guidance also allows exposed asymptomatic health care workers and “exposed asymptomatic emergency response and social service workers who work face to face with clients in the child welfare system or in assisted living facilities” to return to work after a seven-day quarantine following last exposure with a negative PCR test on a specimen collected after day five.

Acknowledging governmental impositions are creating hardship and distrust as the pandemic wears on, the Guidance observes that while the CDC and CDPH are recommending 14-day quarantines as “upper limits of the COVID-19 incubation period,” that duration “can impose burdens that may affect physical and mental health as well as cause economic hardship that may reduce compliance. In addition, the prospect of quarantine may also dissuade recently diagnosed persons from naming contacts and may dissuade contacts from responding to contact tracer outreach if they perceive quarantine as onerous.”

The Guidance still requires asymptomatic persons ending quarantine on these earlier ten- and seven-day time frames to:

• Wear face coverings “at all times” and stay at least 6 feet from others;
• Wear surgical face masks at all times upon return to work after day seven and face coverings away from home through day 14 after last exposure; and
• “Self-monitor for COVID-19 symptoms through Day 14 and if symptoms occur, immediately self-isolate and contact their local public health department or healthcare provider and seek testing.”

See also,

• Dancing with Corona - New Wave of California and Local Stay-at-Home Orders (December 4, 2020)
• Industry Suffocation Orders - California’s Safety Agency Now With Pandemic “Imminent Hazard” Shutdown Powers (October 2, 2020)
• Update California COVID Plan B - “Blueprint” Workplace Return Improving Conditions Statewide 0 Tier assignments as of August 31, 2020 (September 25, 2020)

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

Helena Kobrin
December 18, 2020

The federal Equal Employment Opportunity Commission (EEOC) has again expanded its pandemic guidelines to address the effect of the Americans with Disabilities Act (ADA) and other workplace anti-discrimination laws on the national COVID vaccination campaign that now lies ahead.

A major “tension” point is between an employee’s right to maintain the privacy of his or her medical information and an employer’s responsibility to protect the health and wellbeing of its workforce. Since the declaration of COVID as a pandemic, the EEOC has relaxed ADA confidentiality restrictions to give business greater ability to thwart widespread workplace disease transmission. See, Infection Protection; What an Employer Can Ask in a Pandemic (March 25, 2020).

The agency’s December 16, 2020 updated COVID guidance offers new vaccination-related “do’s and don’ts,” including:

• An Employer May Ask Whether a Worker Has Been Vaccinated: The EEOC does not regard a vaccination as a “medical examination” because a shot to prevent an infection is not a procedure or test seeking the existence of a health-related condition. Thus, an employer is free to ask an employee if he/she has been inoculated.
  Thus, an employer may ask an employee for proof of receipt of a COVID-19 vaccination. However, follow-up employer questions, such as asking why an individual has not received a vaccination, may elicit disability information subject to the pertinent ADA standard that the inquiry be “job-related and consistent with business necessity,” discussed below. Thus, the EEOC counsels that the “employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.”
• An Employer Requiring Vaccination Must Limit Screening Questions: As pre-vaccination medical screening questions are likely to elicit disability or religious affiliation information, an employer requiring COVID inoculation may only ask such questions as are “job-related and consistent with business necessity.” Permitted questions must thus concern information that if not disclosed will “pose a direct threat to the health or safety” of that worker or others.

Thus, if a business is to make vaccination mandatory and management encounters an employee claiming she or he is unable to receive the inoculations due to a disability or religious belief/practice, the EEOC counsels that management can and should discuss the prospects of reasonable accommodation with that individual, e.g., prospect of performing tasks remotely, short of an undue hardship to company operations.

• An Employer Must Explore Possible Reasonable Accommodations for Those Declining Vaccination Due to Disability or Religion: Process is vital here. The EEOC stresses that management must be flexible and interactive, include determination “whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. In discussing accommodation requests, employers and employees also may find it helpful to consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org.”
• Disability-Related Vaccination Screening Questions Are Permitted in Two Circumstances: The EEOC advises there are two situations where disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement: (a) an employer offering a voluntary vaccination program must also give the employee the choice of answering pre-screening, disability-related questions; and (b) if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer (e.g., an independent pharmacy or other health care provider), that third party is free to ask pre-vaccination medical screening questions.
• Preserve the Confidentiality of Medical Information: The new guidance also reiterates that an employer must keep confidential any employee medical information obtained in the course of its vaccination program.
• Excluding an Unvaccinated Worker is the Last Resort: Ultimately, the guidance states: “[i]f an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”
• Possible Leave for an Unvaccinated Worker: An unvaccinated worker who must be excluded from the workplace for lack of any possible reasonable accommodation may be eligible to take leave under the Families First Coronavirus Response Act (FFCRA), the Family and Medical Leave Act (FMLA), other state or local leave laws or the employer’s policies.

See also:

• COVID’s Constant? … Change; EEOC’s Expanded Guidelines on Screening, Testing, and Pandemic Management (September 18, 2020)
• Workplace Pandemic Prevention - Model Employee Handbook and Forms Include Vital COVID-19 Protocols (September 3, 2020)
• Older Folks are People Too - Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Thinking the Unthinkable - Expanding Federal Post-Pandemic Guidelines for Safeguarding Returning Personnel (April 23, 2020)

We continue to assist employer clients on pandemic-related policies, protocols and problem solving. For more information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
December 17, 2020