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)
• 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.

Law Offices of Timothy Bowles
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,

• 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

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:

• 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:

• 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