California’s Division of Occupational Safety and Health, better known as Cal/OSHA has gone from bark – its July 16 notice calling on all employers to carefully review and follow the state's COVID-19 workplace safety and health guidance– to bite.

In two press releases, September 4 and September 9, the agency has identified 13 employers up and down the state, including manufacturers, retailers and a health care provider, that it has recently cited for a collective $500,000-plus in penalties for failing to provide adequate worker pandemic protection. The largest alleged offenders include a Vernon frozen food plant and its temporary employment agency, each tapped for over $200,000.

Cal/OSHA claims to have found hundreds of that plant’s employees “exposed to serious illness from COVID-19” due to the lack of physical distancing procedures among workers including where they clock in and out of their shifts, at the cart where they put on gloves and coats, in the break room, on the conveyor line and during packing operations.

The agency also charges the plant put workers at risk of exposure by failing to train employees to investigate any of the more than 20 COVID-19 illnesses and one related death Cal/OSHA claims to have uncovered.

Cal/OSHA clearly aims by these broad announcements to motivate greater compliance with its multi-industry guidelines and use of its multiple language educational materials as means to hasten full defeat of the virus.

“It is critical that employers evaluate the workplace and take proactive measures to prevent the transmission of COVID-19 in the workplace,” said Cal/OSHA Chief Doug Parker. “If a COVID-19 illness occurs, employers must investigate the case to determine if additional protective measures should be taken and report the serious illnesses and deaths to Cal/OSHA. Employers should also notify workers of possible exposure and report outbreaks to county public health officials.”

While sounding the alarm on alleged violators, the agency provides live, online training for employers in the agricultural, meatpacking and food processing sectors as well as direct liaison with managers and workers alike through its Consultation Services Branch, (800) 963-9424.

It should of course not take government enforcement actions to encourage any employer to adopt sound pandemic-related workplace protocols as part of its state-mandated “Injury and Illness Prevention Plan” (IIPP). We are assisting management regularly in the process.

See also,

• California COVID Plan B - “Blueprint for a Safer Economy” for a Tiered Return to the Workplace (September 4, 2020)
• Over the Horizon - Broader “Worker-Friendlier” COVID Leave Criteria? (August 21, 2020)

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

Tim Bowles
September 10, 2020

A month into California’s first attempt at loosening commercial restrictions (the “Pandemic Resilience Roadmap”), a July 13, 2020 public health order required all counties to again close indoor operations for dine-in restaurants, movie theaters, and like establishments. See, One Big Scrappy Family, California’s Coronavirus Response Statewide and Local (August 7, 2020).

Based on greater experience, Sacramento is now embarked on its second major round of statewide business pandemic recovery guidelines, California’s Plan for Reducing COVID-19 and Adjusting Permitted Sector Activities to Keep Californians Healthy and Safe, or the “Blueprint for a Safer Economy” for short.

The Blueprint, effective August 31, refines the California Department of Public Health’s (CDPH) four pandemic stages (ranging from maximum shutdown to full cancelation of the state’s “stay-at-home” order) to four tiers of risk transmission, with a county-by-county assessment conducted weekly:

• Tier 1; Widespread risk (purple);
  
• Tier 2; Substantial (red);
  
• Tier 3; Moderate (orange); and
  
• Tier 4; Minimal (yellow)

Tier 4 is not colored green because some restrictions remain at that level.

An accompanying chart outlines the degree of restriction for each business type at each tier. For instance, companies that fall within the so-called “critical infrastructure” (medical, grocery, transport, etc.) remain open with modifications no matter what “tier” a county is in. Places of worship, movie theaters, and restaurants must comply with identical indoor and capacity restrictions, lessening to maximum 50% capacity in Tier 4. Professional sports must proceed without live audiences no matter the tier.

Assessment is week-to-week, measured by a county’s case rate, percentage of positive tests and many other metrics (statistics). The CDPH is posting each county’s current status at the beginning of each week. Reflecting a greater caution than California’s June reopening initiative, a county will remain in a tier for at least three weeks before it may advance to the next and may only move one tier at a time.

City and other local health jurisdictions may continue to maintain more restrictive health measures in their discretion.

See also:

• Over the Horizon - Broader “Worker-Friendlier” COVID Leave Criteria? (August 21, 2020)
• Workplace Discrimination in a Pandemic - California’s Updated COVID-19 FAQs Call for Careful Decision Making (August 5, 2020)
• Fourth and Long - California’s Employer Playbook For a Safe Reopening (July 31, 2020)

Tim Bowles
September 4, 2020

As a San Francisco judge had directed that Uber and Lyft convert their drivers to employees by August 21, 2020, the rideshare giants were ready to shut down their California operations unless the Court of Appeal put that order on hold. See, Traffic Slamming – New Fronts on California’s War Against Uber and Lyft (August 13, 2020).

However, on August 20, the California appeals court did just that, conditionally suspending the injunction for the length of Uber/Lyft’s appeal as long as the companies agreed to accelerate that appeal (both have) and, by September 4, confirm they will switch their California drivers to employees:

• if they lose that appeal; and
• if the voters reject Proposition 22 on the November 3, 2020 ballot

Proposition 22 proposes extensive amendments to California’s “AB 5” laws to permit a wider scope of independence – along with protections and benefits – for gig economy workers.

Next in this drama will be Uber’s and Lyft’s September 4 sworn commitments to comply with the preliminary injunction if left with no further relief from the trial court’s required conversion of drivers to employees. As they were apparently willing to do last week, the companies might instead announce their determination to shut down all California operations as that last resort instead of converting.

To minimize state or worker challenge to their hiring practices, smart California businesses contemplating or continuing independent contractor classification should consult a management-side employment attorney to advise on how the law – and the current uncertainties surrounding Uber and Lyft drivers – affect their plans.

See also:

• Is Gig Up for Car Wash Company? – First AB 5 Suit Challenging Independent Contractor Classification (July 30, 2020)
• Calling Out Big Gig – California Wants Uber and Lyft Drivers as Employees (May 22, 2020)
• Roadkill – Federal Court Denies Uber Request to Stop AB5 (February 21, 2020)
• The Mystery of it All – Employed or Independent? California Offers AB5 Answers (February 7, 2020)
• Dodging the Bullet – The Industries and Professions Not Subject to California’s New Independent Contractor Restrictions (October 9, 2019)

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

Helena Kobrin
August 27, 2020

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

As California supplies no specific definition for required personnel records, it falls to company management to judge what constitutes adequate documentation that reliably reflects each employee’s work history with the company.

Labor Code section 1198.5 addresses employees’ rights to access their “personnel records” without defining the term. The Labor Commissioner refers to “personnel files” and “personnel records” interchangeably but only names categories of papers generally considered to fall within these terms: “those that are used or have been used to determine an employee’s qualifications for promotion, additional compensation, or disciplinary action, including termination.” The Commissioner also offers “some examples,” including employment application; performance evaluations; promotion, pay rate, discipline, and termination notices; and attendance records.

Employers should not limit their recordkeeping practices to this handful of suggestions from the state. A wider range of items to be kept in each employee’s main personnel file might include:

• Job application and resume
• Background and reference checks
• Job description
• Job-related testing results
• Orientation checklist
• Emergency contact
• Signed receipts of company handbook and other company policy
• Attendance and absence records
• Education and training records
• Payroll authorization or modification paperwork
• Employment agreement and/or non-disclosure agreement
• Arbitration agreement
• Disciplinary records
• Performance evaluations and commendations
• Termination records

Worker privacy requires several other worker-related items to each be maintained separately, including:

• Medical records, including family medical leave documentation, doctor’s notes, workers’ compensation claims, and any other health-related information
• Private financial records
• For those enterprises who must periodically submit EEO-1 reports (generally, employers with 100-plus on payroll), supporting equal employment opportunity records including workers’ racial or ethnic identities
• Investigative files or litigation documents, such as those pertaining to harassment, discrimination, retaliation and whistleblower claims

Retain all personnel records, confidential and otherwise, for at least four years after the employment relationship ceases. Documents requiring even longer retention periods include:

• pension and welfare plan information (five years)
• first-aid records of certain job injuries causing loss of work time (five years), and safety and toxic or chemical exposure records including safety data sheets (30 years)

Employers should periodically review and update company policy and procedures that establish: (i) who will maintain the company’s personnel records; (ii) how and where to store all such records; and (iii) how to protect the records from unauthorized access, removal or destruction.

Note: By contrast, federal and state laws are explicit on required payroll-related records. See, U.S. Department of Labor Fact Sheet #21: Recordkeeping Requirements under the Fair Labor Standards Act (FLSA); California Division of Labor Standards Enforcement (DLSE) Enforcement Policies and Interpretations Manual, August, 2019, section 4 “Time Record Requirements”; and Employment Development Department (EDD) 2020 California Employer’s Guide, p. 78, “Recordkeeping.”

For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
Cindy Bamforth
August 14, 2020

Uber and Lyft have successfully battled suits seeking to prevent the companies from classifying their drivers as independent contractors, until now.

On August 10 – in a misclassification action pending in San Francisco – the court issued a preliminary injunction requiring Uber and Lyft to convert their independent contractors to employees until final decision at trial. However, the judge put order on hold for 10 days to permit the companies to appeal the order to the Court of Appeal.

Another attack line opened this month, a Labor Commissioner complaint filed in Oakland claiming Uber and Lyft are engaging in “wage theft” by characterizing an estimated 100,000 drivers each as independent. The suit seeks recovery for minimum wage, overtime, rest breaks, paid sick leave, expenses, and mileage, as well as penalties, interest, and attorney fees.

Meanwhile, these rideshare giants have qualified Proposition 22 for the November 3 ballot, seeking voter override of the state’s efforts to end their independent contractor business model.

On the PR front, Uber’s CEO August 10 op-ed in The New York Times (“Gig Workers Deserve Better”) challenged the current “either/or” divide with a middle “third way” permitting the flexibility a majority of gig drivers want along with employment benefits not currently received.

Regardless of how all this settles out, seeking expert advice from a management-side employment attorney is crucial for a business contemplating hiring workers – or continuing to classify them – as independent contractors.

See also:

• Is Gig Up for Car Wash Company? – First AB 5 Suit Challenging Independent Contractor Classification (July 30, 2020)
• Calling Out Big Gig – California Wants Uber and Lyft Drivers as Employees (May 22, 2020)
• Roadkill – Federal Court Denies Uber Request to Stop AB5 (February 21, 2020)
• The Mystery of it All – Employed or Independent? California Offers AB5 Answers (February 7, 2020)
• Dodging the Bullet – The Industries and Professions Not Subject to California’s New Independent Contractor Restrictions (October 9, 2019)

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

Helena Kobrin
August 13, 2020

The saga continues.

After a month or more of eased restrictions, California’s “Statewide Public Health Officer Order”  (July 13, 2020) required all counties to close indoor operations for:

• dine-in restaurants
• wineries and tasting rooms
• movie theaters
• family entertainment centers (for example: bowling alleys, miniature golf, batting cages and arcades)
• zoos and museums, and
• card rooms

With exception for any outdoor dining services, bars, brewpubs, breweries, and pubs were also to close all operations.

The new order also specified that counties remaining on the California County Monitoring List for three consecutive days are required to shut down:

• gyms and fitness centers
• places of worship and cultural ceremonies including weddings and funerals
• offices for non-critical infrastructure sectors
• personal care services such as nail salons and body waxing
• hair salons and barbershops
• shopping malls
• shops that offer tattoos
• piercings, and
• electrolysis

We count 20 counties which have rescinded their local orders to follow statewide guidances:

• Colusa
• Calaveras
• El Dorado
• Fresno
• Inyo
• Kern
• Kings
• Lake
• Mono
• Monterrey
• Nevada
• Placer
• Riverside
• San Benito
• San Bernardino
• San Luis Obispo
• Santa Cruz
• Stanislaus
• Tehama and
• Yolo

Other counties and many cities continue with “safer at home” or “shelter in place” ordinances similar to or stricter than Sacramento’s statewide directives. To our knowledge, as of August 7, 2020:

Thanks again to our legal assistant Daniska Coronado for these continuing updates. Please use the above links and other online resources for further developments. Requirements of varying strictness continue to change frequently, municipality-by-municipality.

See also:

• Workplace Discrimination in a Pandemic - California’s Updated COVID-19 FAQs Call for Careful Decision Making (August 5, 2020)
• Fourth and Long - California’s Employer Playbook for a Safe Reopening (July 31, 2020)
• Older Folks are People Too - Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Response, Updated - Cities and Counties Requiring Paid Sick Leave Above and Beyond Federal Limits (July 23, 2020)
• Cabin Fever in a Pandemic - California’s Updated Coronavirus Response (July 11, 2020)

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

Tim Bowles
Daniska Coronado
August 7, 2020

California employers must follow COVID-19 health and safety guidances including those from the federal Centers for Disease Control (CDC), the California Department of Public Health, and the California Division of Occupational Safety and Health (Cal/OSHA).

Employers with five or more on payroll must also avoid violating workplace discrimination protections, including this state’s Fair Employment and Housing Act (FEHA). For instance, management cannot send workers home during a pandemic based on their Asian heritage or any other actual or perceived national origin.

To further help achieve this balance, the Department of Fair Employment and Housing (DFEH) has updated its “DFEH Employment Information on COVID-19” FAQs (July 24, 2020), suggesting among other things policy and protocols for health condition inquiries and reasonable accommodation for FEHA-protected “disability” conditions.

However, the agency’s suggestions do not altogether resolve conflicts between pandemic health directives designed to thwart infection’s spread and the privacy rights of individual workers.

Guidelines include for instance:

Employers may ask employees if they are experiencing COVID-19 symptoms as long as management keeps the information confidential;
In keeping with privacy law, management also “should not identify” by name any employee in quarantine, who has tested positive for COVID-19, or has come into close contact with someone who has the virus.

However, employers also need to follow “local, state, and federal public health recommendations.”

This leaves management with the legitimate question of how they can protect co-workers from infection if a stricken employee should not be identified by name while local health directives may require such disclosure;
Employers may require employees to wear personal protective equipment during the pandemic. Where an employee with a disability needs a related reasonable accommodation, for example to use non-latex gloves, the employer should provide these absent undue hardships;

Employers must also strive to reasonably accommodate an employee who cannot come to work because of an underlying disability increasing his/her risk for severe COVID-19 related illness;

The guidance points out that because age is not a disability, management is not required to reasonably accommodate employees based on their age alone. However, employers also must not discriminate against older employees. “For example, an employer may not return only employees under age 65, even if the employer is doing so to protect its older employees from COVID-19 risks.”

Thus employers should consult with experienced legal counsel before implementing policies and procedures on how to keep workplaces safe and healthy while also protecting their workers’ civil rights.

See also:

• Fourth and Long - California’s Employer Playbook for a Safe Reopening (July 31, 2020)
• Older Folks are People Too - Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Infection Protection - What Employers Can Ask in a Pandemic (March 25, 2020)

For more information about this guidance or other employment issues related to COVID-19, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Cindy Bamforth
August 5, 2020

After four months of various degrees of “stay home,” “safer at home,” and “shelter in place,” California offers its Covid-19 Employer Playbook for a Safe Reporting (July 24, 2020), an attempted comprehensive “guidance” for limiting workplace infection as the pandemic wears on.

“Guidance” suggests recommendations, not the direct force of law. However, the piece cross-references and supplies links to many COVID-inspired mandatory statewide and municipal health and safety standards. Management should thus read and apply the Playbook conscientiously.

Such close study will confirm the need for experienced legal counsel to assist an employer with the critical balancing between individual employee privacy rights and employer responsibility to protect the wider workforce and public from infection in these remarkable times.

Citing the state’s Industry-Specific Guidance and Checklists – covering particular pandemic considerations for 29 business sectors (now updated through July 30, 2020) -- the Playbook specifies the six needed actions for all employers. All facilities must:

“1. Perform a detailed risk assessment and create a work site-specific COVID-19 prevention plan

“2. Train workers on how to limit the spread of COVID-19. This includes how to screen themselves for symptoms and when to stay home

“3. Set up individual control measures and screenings

“4. Put disinfectant protocols in place

“5. Establish physical distancing guidelines

“6. Establish universal face covering requirements (with allowed exceptions) in accordance with CDPH [Cal. Dept. of Public Health] guidelines …”

Anticipating trouble, Playbook Appendix A offers employer approaches to enforcing workplace mask requirements including:

• training workers on how to minimize workplace violence and to get support “when de-escalation efforts are unsuccessful”
• with respectful posture and expression, speak to non-complying employees with calm voice at normal volume; and
• “settle on a method for calling in support from security or law enforcement if needed.” Again, remarkable times

Offering nothing to clarify the ill-defined boundary between the privacy rights of a COVID-19 symptomatic employee and the need to prevent a company-wide outbreak, the Playbook instead simultaneously advises management:

• should cooperate with the local health department (LHD) by reporting a known or suspected employee infection and by sharing “a roster of all employees with the LHD” and should also “notify all workers who were potentially exposed”; but
• “must maintain confidentiality of employees with suspected or confirmed COVID-19 infection when communicating with other employees.”

Also touching the limits of employee privacy against public health interests, the volume cites required compliance with Cal/OSHA’s (Cal. Occupational Health and Safety Administration) Recording and Reporting Requirements for COVID-19 Cases.

On the appropriate Cal/OSHA form, employers must keep a record of any “work-related COVID-19 fatality or illness,” including any employee displaying pandemic-related symptoms who has spent “days away from work.” Thus, a positive COVID-19 test is not a prerequisite for logging an employee absent for “days” (how many is undefined) with a fever. Cal/OSHA recommends “erring on the side of recordability.”

Cal/OSHA also requires employers to report “serious illness, serious injury or death of an employee that occurred at work or in connection with work within eight hours of when [management] knew or should have known of the illness.” The agency states that “serious illness includes, among other things, any illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization for other than medical observation or diagnostic testing.”

The question thus arises: how does an employer determine whether an unfortunate worker requiring COVID-19 hospitalization contracted the illness at work or in any other manner connected with that employment. Best practice, again, would be to “err” on the side of reporting.

While the Playbook undertakes to cover the waterfront of COVID-19 related workplace issues, it also underscores an employer’s need to issue thorough pandemic-related policies and protocols and to address any employee infection promptly and with care and proper documentation. The help of skilled legal counsel is thus a good idea here.

See also:

• Older Folks are People Too - Expanded Federal Pandemic Guidelines Allow Favorable Treatment for Aged 65-Plus Personnel (July 24, 2020)
• Cabin Fever in a Pandemic - California’s Updated Coronavirus Response (July 11, 2020)
• Society’s High Wire Act Week Eleven - California’s Stage Two Phased Reopening Continues (June 5, 2020)
• Groundhog Day Week Nine - “Safer at Home” Moving to Stage Two, Phased Reopening (May 15, 2020)

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

Tim Bowles
July 31, 2020