Seyfarth Synopsis: Governor Gavin Newsom has approved AB 701, which will impose notice and other requirements on employers of employees subject to quotas in large California warehouse distribution centers, and has vetoed AB 616, an agricultural worker card check bill.

Acting on the first two major employment-related bills of interest to private employers, Governor Newsom on September 22, 2021 approved AB 701 (AM Lorena Gonzalez, D-San Diego) and vetoed AB 616 (AM Mark Stone, D-Scotts Valley).

The Governor’s signing announcement states that AB 701 (effective January 1, 2022) “establishes new, nation-leading transparency measures for companies to disclose production quota descriptions to their workers and prohibits the use of algorithms that disrupt basic worker rights such as rest periods, bathroom breaks or compliance with health and safety laws. The legislation ensures workers cannot be fired or retaliated against for failing to meet an unsafe quota and allows them to pursue injunctive relief.”

Here are the bill’s key provisions, the consequences it creates, and the steps that covered employers should take.

Key Requirements and Prohibitions

AB 701 adds several Labor Code sections that will require employers with over 100 California employees at a single warehouse distribution center—or with 1000 or more California employees at multiple warehouse distribution centers—to give each nonexempt employee (including employees of third-party employers, temporary services, or staffing agencies) a written description of any quota that applies. This notice is to include (1) the number of tasks to perform or materials to produce or handle, (2) the relevant time period, and (3) any potential adverse employment action that could result from a failure to meet the quota. This written description must be provided upon hire, or by within days of the January 1, 2022, effective date.

AB 701 defines “quota” as “a work standard under which an employee is assigned or required to perform at a specified productivity speed, or perform a quantified number of tasks, or to handle or produce a quantified amount of material, within a defined time period and under which the employee may suffer an adverse employment action if they fail to complete the performance standard.”

AB 701 prohibits employers from requiring employees to meet quotas that prevent compliance with meal or rest periods, use of bathroom facilities (including reasonable travel to/from), occupational health and safety laws in the Labor Code, or occupational health and safety standards. AB 701 also prohibits employers from taking adverse employment actions for any failure to meet any quotas that (1) has not been disclosed or (2) does not allow a worker to comply with meal or rest periods or occupational health and safety laws/standards.

AB 701 provides that any action taken by an employee to comply with occupational health and safety standards be considered time on task and productive time for the purposes of any quota or monitoring system. For instance, frequent required handwashing, donning/doffing necessary personal protective equipment, and lockout/tag out of equipment are common safety measures required by safety laws and regulations that would now ostensibly need to be counted as productive time. (AB 701 clarifies that meal and rest periods are breaks not considered productive time unless the employee is required to remain on call.)

Does This Apply To You?

Wondering if your distribution center subjects you to this bill? The bill defines “warehouse distribution center” as establishments falling within four specific North American Industry Classification System Codes—merchant wholesalers of durable and nondurable goods (423 and 424), general warehousing and storage (493110, excluding farm products), and electronic shopping and mail-order houses (454110).

What Information Do Covered Employers Have to Provide to Employees?

Current or former employees who believe that meeting a quota caused a violation of meal or rest standards or required them to violate a Cal/OSHA standard may request—and the employer must provide within 21 days—a written description of each applicable quota, together with a copy of the most recent 90 days of the employee’s personal work speed data.

AB 701 limits former employees to one such request. Also, the employer does not need to create data to satisfy a request, so if you do not monitor quotas or work speed you have no obligation to provide the information.

Consequences for Non-Compliance?

AB 701 creates a rebuttable presumption of unlawful retaliation if an employer discriminates, retaliates, or takes any adverse action against any employee within 90 days of the employee requesting information about a quota or about personal speed data, or complaining about a quota or violation of any of the above provisions. Complaints qualifying for protection include any report to the employer, to the Labor Commissioner, the Cal/OSHA, or to any other local or state governmental agency.

AB 701 empowers individual employees and the Labor Commissioner to enforce its provisions. AB 701 authorizes current or former employees to sue for injunctive relief, and prevailing employees may recover costs and reasonable attorney’s fees.

AB 701 also requires the Labor Commissioner to issue citations and access worker’s compensation data to identify facilities where there are high rates of injury likely due to the use of unsafe quotas, and to report to the Legislature the annual number of claims filed, data on warehouse production quotas in warehouses in which the Division of Workers’ Compensation has indicated that annual employee injury rates are above the industry average, and the number of investigations undertaken and enforcement actions initiated, per employer. AB 701 also authorizes the Labor Commissioner to adopt regulations regarding employee complaint procedures.

AB 701 specifically addresses the PAGA liability question, stating that in any PAGA action to enforce AB 701 the employer will have the right to cure the alleged violations in accordance with Labor Code section 2699.3.

“Plain Language, Please?”

Practically speaking, what does the bill’s passage mean for employers?

(1) Employers should check if they are subject to AB 701: do they maintain a qualifying warehouse distribution center and meet the employee thresholds?

(2) Covered employers should evaluate their quota systems and document the bases for establishing those quotas, to establish that the quotas do not directly or indirectly run afoul of any wage/hour or safety requirements. The evaluation should ensure that any action taken by employees to comply with occupational health and safety standards (such as those that may be set by Cal/OSHA) are considered productive time for the purpose of any quota or monitoring system.

(3) In the next few months, covered employers should prepare the required written description of each quota so that required notices are ready to be distributed to new hires effective January 1, 2022, and to all employees with 30 days thereafter.

(4) Covered employers should be aware of the quota information that must be disclosed within 21 days if a current or former employee requests that information.

A Note on the Governor’s Veto of AB 616

Governor Newsom has vetoed AB 616, which would have created a process for agricultural employees to elect a labor representative through a ballot card election. In his veto message, the Governor cited inconsistencies and procedural issues related to the collection and review of ballot cards and directed the Labor and Workforce Development Agency to work with the Agricultural Labor Relations Board to go back to the drawing board and develop new policy proposals for legislative consideration.

Workplace Solutions

The passage of this new law poses some significant new requirements on many companies operating in the warehouse distribution space. If you have questions about how this law may apply to your workforce, or need assistance designing quota descriptions and employee disclosures, please contact your favorite Seyfarth attorney for assistance.

Edited by Coby Turner

Seyfarth Synopsis: While the second half of the 2020-21 legislative session saw comparatively fewer employment-related bills than in previous years, those that made it to Governor Newsom’s desk carry some hefty obligations. The Governor has until October 10th to either sign or veto the bills presented. Here is our summary of the bills needing only the stroke of the Governor’s pen to become law.

Friday, September 10, 2021, marked the deadline for bills to pass out of both legislative houses and on to the Governor—and also marked the end of the road for the majority of the remaining employment-related bills. As we noted in our House of Origin Deadline Blog, relatively few employment-related bills introduced in January survived the House of Origin. The fate of those few bills that survived both houses’ scrutiny now lies solely in the hands of Governor Newsom, who just soundly defeated a recall election challenge, adding a unique dynamic to bill-signing season. Our summary outlines bills already signed into law, those awaiting the Governor’s approval or veto, and those that did not make the cut.

New Laws

COVID-19 Supplemental Paid Sick Leave: SB 95 was a budget trailer bill that—effective immediately upon its April 16 signing, and retroactive to January 1, 2021—extended COVID-19 supplemental paid sick leave (SPSL) to September 30, 2021 for employers with over 25 employers. The law provides an annual allotment of up to 80 hours of available SPSL, covers persons who telework, and extends SPSL entitlements to reasons related to vaccinations and family care. See our in-depth analysis of the bill here.

There were rumors of various measures that could have extended SB 95’s sunset date and/or codified an employer’s ability to mandate that its workforce get inoculated against COVID-19, such as a highly publicized gut-and-amend of a bill on an unrelated topic. All appear to have fallen through for now, meaning that there is currently no planned extension or replacement for CA COVID-19 Supplemental Paid Sick Leave.  However, these topics continue to be top of mind for employers and legislators.

Rehiring and Retention of Displaced Hospitality Workers: As we detailed hereSB 93 requires certain hospitality employers—hotels, private clubs, event centers, and airport hospitality services—and successor employers, to offer preferential hiring to employees laid off because of the pandemic. The bill carried an urgency clause, making it effective the same date the Governor signed it, April 16, 2021.

Bills Awaiting The Governor’s Approval

Paid Family Leave Weekly Benefit Increase: AB 123 would revise the formula for calculating benefits available under the family temporary disability insurance program for periods of disability commencing after January 1, 2023, by requiring the weekly benefit amount to be equal to 65% or 75% of the highest wages paid to an individual, divided by 13, but not exceeding the maximum workers’ compensation temporary disability weekly benefit amount established by the Department of Industrial Relations (DIR). Periods commencing after January 1, 2025, would increase the wage replacement percentages to be equal to 70% or 90% of the highest wages paid to an individual.

Small Employer Family Leave Mediation Pilot Program and CFRA Parent-in-Law Care Leave: AB 1033 would add leave to care for a parent-in-law to the permissible reasons to take family care and medical leave under the California Family Rights Act (CFRA). For employers of between 5 and 19 employees, the bill would also require the Department of Fair Employment and Housing (DFEH) to notify an employee who requests an immediate right-to-sue letter alleging CFRA violations of the requirement for mediation. It would also toll the statute of limitations applicable to an employee’s claim from the date the employee contacts the DFEH with the intent to pursue a legal action until the mediation is complete or deemed unsuccessful. Employers who are not notified when an employee fails to contact the DFEH would be entitled to stay any pending civil action until completion of mediation.

Enterprise-Wide Safety Citations: SB 606 would require that Cal/OSHA issue a citation to an egregious employer (defined as, among others, an employer that intentionally made no reasonable effort to eliminate a known violation) for each willful violation. Each employee exposed to that violation would be considered a separate violation for purposes of the issuance of fines and penalties.

The bill was amended to remove a rebuttable presumption of retaliation if an employer takes adverse action against an employee within 90 days of the employee taking any of a number of actions, such as disclosing a positive COVID-19 test or diagnosis of a communicable disease or reporting a possible violation of an OSHA standard. The bill would, however, establish a rebuttable presumption that a violation is enterprise-wide if OSHA has evidence of a pattern or practice of the same violation committed by that employer. Cal/OSHA would be authorized to issue an enterprise-wide citation requiring enterprise-wide abatement if the employer fails to rebut such a presumption.

Warehouse Distribution Centers Quota Disclosures: AB 701 would require that employers provide nonexempt employees who work at a warehouse distribution center a written description of each quota the employee must meet, including the quantified number of tasks that must be performed. The bill would prohibit an employer from requiring employees to meet a quota that causes them to miss a meal or rest period, and where an employee believes meeting a quota caused such a violation, the employer would be required to provide employees a copy of the most recent three months of the employee’s own personal work speed data. The bill would also require that when a complaint alleging violations of AB 701 is filed, the Labor Commissioner provide a written notice of the right to report violations. The bill includes anti-retaliation measures for reporting unsafe workplace conditions or participating in an investigation by an enforcement agency. The bill would also authorize a current or former employee to sue for injunctive relief, costs, and reasonable attorney’s fees in that action.

Expansion of Liability for Garment Manufacturer Wage/Hour Violations: As summarized in greater depth hereSB 62 would expose entities (such as large retailers) contracting for the performance of garment manufacturing to joint and several liability with any manufacturer and contractor for the full amount of any unpaid wages, any other compensation, damages, liquidated damages, attorney’s fees, civil penalties, and any other penalties to aggrieved employees who performed garment manufacturing operations. The measure would also eliminate piece rate compensation in the garment industry. This measure almost precisely replicates SB 1399, which did not quite make it to the Governor’s desk in 2020.

Wage Theft as Grand Theft: AB 1003 would amend the Penal Code to make an employer’s intentional theft of wages, payments, or gratuities over $950 punishable as grand theft. The bill would apply to employees and independent contractors.

Court/Litigation-Related Procedure Changes: SB 241, the “2021 California Court Efficiency Act,” was originally a spot bill aimed at streamlining discovery processes to reduce costs to the courts and litigants. The measure was significantly amended, and now would authorize an entity that is not a shorthand reporting corporation to engage in shorthand reporting if the entity is approved for registration by the Court Reporters Board of California. The bill would also require courts to electronically serve documents on a party that has agreed or consented to accept electronic service. It would also authorize, until January 1, 2024, a witness in a proceeding to appear and give testimony by remote electronic means that provide a live audiovisual connection to the court, if the parties stipulate to this manner of appearance.

Another Potential Restriction on Settlement Agreements: SB 331, the “Silenced No More Act,” would amend Section 12964.5 of the Government Code (enacted by SB 1300 of 2018) so that employers implementing non-disparagement agreements as a condition of employment (or in a separation agreement) would need to carve out an employee’s ability to discuss conduct the employee has reason to believe is unlawful. The bill would also amend Section 1001 of the Code of Civil Procedure (enacted by SB 820 of 2018) to extend the prohibition on confidentiality provisions in settlement agreements to all forms of workplace discrimination—not just discrimination based on sex. This bill would build upon CCP Section 1002.5 (enacted by AB 749 of 2019 and amended by AB 2143 in 2020) by expanding the prohibition to include acts of workplace harassment or discrimination regardless of sex.

Unionization Process for Agricultural Employees: AB 616 would eliminate secret ballot union elections by permitting a labor organization to be certified as the exclusive bargaining representative of a bargaining unit through a representation ballot card election where at least 50 percent of the employer’s workforce votes in favor of unionization. The bill would create a presumption of retaliation—which can be rebutted only by clear, convincing, and overwhelming evidence—whenever an employer disciplines, suspends, demotes, lays off, or terminates a worker during a labor organization’s representation ballot card campaign.

Gender Neutral Retail Departments: AB 1084 would require a retail department store with 500 or more employees that sells childcare items to maintain a gender-neutral section, displaying a “reasonable selection” of items for children, regardless of whether they have been traditionally marketed for either girls or for boys. The requirements of this bill would be enforced by the State of California through the Attorney General, a district attorney, or city attorney, and provides for recovery of attorneys’ fees. Failure to comply with the measure’s requirements would yield a civil penalty not to exceed $250 for a first violation, and $500 for a subsequent violation.

Displaced Janitor and Hotel Worker Opportunity Act: After the passage of SB 93, discussed above under bills already signed into law, AB 1074 was amended to simply rename the “Displaced Janitor Opportunity Act” the “Displaced Janitor And Hotel Worker Opportunity Act” and to extend the provisions of the Act to hotel workers.

Large Group Health Insurance: SB 255 would authorize an association of employers to offer a large group health care service plan contract or large group health insurance policy consistent with ERISA if certain requirements are met, including: (1) that the association is headquartered in California; (2) has continuously been a Multi-Employer Welfare Arrangement under ERISA (MEWA) since before March 23, 2010; (3) and that the large group health care service plan contract or large group health insurance policy have provided a specified level of coverage since January 1, 2019.

Bills that Failed to Make the Cut

As noted above, and as we blogged about here, the vast majority of bills that were introduced back in January failed to pass the House of Origin deadline. For example, a package of bills that would have limited the reach of PAGA, limited the reach of AB 5, addressed the COVID-19 pandemic, enhanced unemployment insurance benefits, and increased employer leave requirements died at the House of Origin deadline in June.

Of those relevant bills that passed the House of Origin deadline, the following failed to pass both houses to the Governor’s desk: (1) AB 1041, ordered to inactive file at the request of Senator Wiener, would have amended CFRA, Gov’t Code § 12945.2, to add a “designated person,” chosen by the employee as a person for whom an employee may take leave for family care and medical leave; (2) SB 505, which never made it out of committee once it moved to the Assembly, would have required public employers to make a good faith effort to consult with an employee to resolve monetary obligations before garnishing any of the employee’s wages; and (3) AB 857, ordered to inactive file at the request of Senator Durazo, would have prohibited employers from retaliating against an H-2A employee for raising questions that relate to employment, housing, or working conditions. We may see these bills again in 2022; indeed, we’ve seen some of these before, and the author of AB 1041 has promised its return in 2022.

Workplace Solutions

Now that Governor Newsom has survived the recall election, employers should brace for him to sign many of the above bills, and begin preparation to ensure compliance as soon as possible. For example, in light of SB 62, entities that contract for garment manufacturing should begin auditing their vendors’ compliance with California wage and hour laws now and implementing related recordkeeping practices.

We’ll keep you updated here at Cal Peculiarities, and check out our Policy Matters podcast and newsletter for regular check-ins on California (and national) policy and legislative updates as well.

Edited by Coby Turner and Elizabeth Levy

Seyfarth Synopsis: On August 12, 2021, the City and County of San Francisco issued an order requiring certain businesses offering food services or fitness services indoors to check for proof of full vaccination. This requirement will apply to patrons 12 years and older, effective August 20, 2021. Staff must be fully vaccinated by October 13, 2021. This order also extended the vaccination requirement to “large” indoor events and to certain healthcare workers, including pharmacists. Other California jurisdictions, including the City and County of Los Angeles have implemented, or are considering, similar requirements.

In response to the growing impact of the COVID-19 Delta variant in California, on August 12, 2021, San Francisco issued an that extended vaccination requirements to three key areas:  businesses with indoor operations offering food and drink services or fitness services; “large” indoor events; and certain healthcare employees.

No Vaccine? No Indoor Food, Drink, or Exercise Services

Starting August 20, 2021, the following businesses with indoor operations in San Francisco must confirm that all patrons 12 years or older are fully vaccinated against COVID-19 before allowing them indoors:

  • Operators/hosts of establishments or events where food or drink is served indoors—including, but not limited to, dining establishments, bars, clubs, theaters, and entertainment venues; and
  • Gyms, recreation facilities, yoga studios, dance studios, and other fitness establishments, where any patrons engage in cardiovascular, aerobic, strength training, or other exercise involving elevated breathing.

Notably for dining establishments and bars, the vaccine requirement does not apply to patrons picking up “to-go” orders. Likewise, dining and gym patrons who step inside to use the restroom if dining or exercising outside need not show proof of vaccination. The order also does not apply to food and drink provided as part of a religious ceremony.

How and When Do You Have to Check Vaccination Status?

Dining establishments and bars do not necessarily need to assign an employee to check vaccine status at the front door, however—confirmation before entry is San Francisco’s preferred compliance method. The FAQs permit restaurants and bars to check an indoor patron’s vaccine status when a customer first interacts with staff (e.g., when ordering, checking in at host stand).

In addition to confirming vaccination status, covered businesses must confirm that all “staff who routinely work onsite” are fully vaccinated. While the order does not set a bright line test for what qualifies as “routine,” the order explicitly notes that individuals who only work indoors at the location on an occasional basis (for example, individuals who deliver goods) are not subject to the order. By August 20, 2021, covered businesses must verify the current vaccination status of their staff, with a deadline of October 13, 2021, for full vaccination.

San Francisco has issued a sample vaccination ascertainment form, which inquires about a staff member’s vaccination status, and provides staff an opportunity to seek an exemption based on a medical/disability or religious belief. Businesses must keep a record of fully vaccinated staff and signed declination forms for those staff eligible for an accommodation exception.

Staff excepted from taking the vaccine due to a legally recognizable accommodation must take a weekly test as part of the accommodation. Notably, however, neither patrons nor staff can currently provide proof of negative test as an alternative to providing their vaccine status.

No later than August 20, 2021, covered business must also post signage for both their patrons and staff, advising them that proof of full vaccination is required for entry.

The Proof Is In The Paperwork.

A CDC-issued vaccination card is not the only means to prove that a patron is fully vaccinated. Rather, San Francisco provides numerous options:

  • A CDC-issued vaccination card;
  • A physical or digital copy or picture of a vaccine copy (including a picture on a cell phone);
  • A doctor’s note; or
  • A personal digital COVID-19 vaccine record issued by the State of California or by an approved private company.

In addition to the above, staff (but not patrons) can also provide a written self-attestation of their vaccination status. These attestations must be signed under penalty of perjury and list the type of vaccine taken and date of the last dose.

Hybrid Is As Hybrid Does

Hybrid establishments—for example, a wine store that holds occasional tastings—may have difficulty determining whether and how to comply with the order. In addressing theaters’ concession stands, the order provides that the theater cannot sell concessions to unvaccinated individuals, but that the theater may check vaccination status at the concession stand rather than at the entrance. The order’s FAQs further clarify that malls, retail establishments, and grocery stores that offer indoor dining (instead of just to-go) and similar concession areas will have to check vaccination status in the area devoted to indoor dining. Hybrid establishments, therefore, could presumably follow similar protocols, but such establishments are encouraged to reach out to legal counsel to discuss their particular situation.

Passing a Test Won’t Help You Blend Into the Crowd

The order requires proof of full vaccination for attendees, staff, and performers of “large” or “mega” indoor events who are over 12 years old. “Large” events are defined as events—whether public or private—involving 1,000 to 4,999 people, and “mega” events are 5,000 or more people. Thus, in San Francisco, a negative COVID-19 test will not be sufficient for either type of event (unless an accommodation is required by federal, state or local law). This makes San Francisco’s requirements more restrictive than California’s statewide guidance, which (1) do not apply to indoor gatherings under 5,000 people, and (2) for indoor gatherings of 5,000 people or above, allow a negative COVID-19 test within 72 hours in lieu of proof of vaccination.

There is also a limited exception for ticketed events occurring before September 15, 2021, which sold tickets before August 12, 2021—these events can accept proof of a negative COVID-19 test.

Upping the Ante for Certain Workers In Healthcare and High-Risk Settings

The San Francisco order also expands upon California’s vaccination and/or testing requirement for workers in high-risk settings and in certain healthcare facilities. Under the California Department of Public Health’s recent orders, workers in healthcare and in certain high-risk settings are required to be vaccinated unless they qualify for a medical or religious exemption and/or frequently tested for COVID-19.

San Francisco now extends the vaccination requirement to all healthcare personnel in adult care facilities, adult day programs licensed by the California Department of Social Services, and dental offices, as well as certain high-risk settings such as homeless shelters and jails. Unless an employee in these settings qualifies for a medical or religious exemption, there is not an option to be tested regularly rather than vaccinated. In addition, all home healthcare workers and pharmacists must be fully vaccinated or qualify for a medical or religious exemption.

And, similar to the state orders, San Francisco is requiring any medical exemption requests to include a written statement signed by a licensed medical professional stating the individual qualifies for the exemption (without identifying or describing the medical condition or disability), and the probable duration of the inability to receive the vaccine.

Los Angeles Follows Suit

Not to be outdone, the Los Angeles County Health Department issued an order requiring health care workers to be vaccinated. The order largely tracks the recent state order discussed above, but it adds several high-risk settings, such as dental offices, congregate living, and home care settings, and has a broader definition of worker that includes contractors, students, and volunteers. FAQs can be found here.

In addition, both Los Angeles City and County are considering mandates for patrons in certain indoor facilities. On August 4, 2021, councilmembers of the City of Los Angeles introduced a motion directing the City Attorney to “prepare and present an ordinance that would require eligible individuals to have received at least one dose of vaccination to enter indoor spaces.” The motion was approved on August 11, 2021. Once drafted, the regulations will be considered by the City Council and likely approved.

On August 10, 2021, the Los Angeles County Board of Supervisors directed its Department of Public Health to report back within 14 days on options for requiring vaccines in “certain indoor public spaces in the County of Los Angeles.” The County explicitly noted that it would be looking to the impact of similar vaccine requirements in Any future mandate would likely only apply in the unincorporated parts of the County.

Other California jurisdictions, including Palm Springs and Cathedral City, have implemented vaccination and/or negative testing requirements for patrons of indoor restaurants and bars.

Workplace Solutions

Covered employers must rapidly adopt and adjust their COVID-19 vaccination verification procedures. Orders imposing vaccine mandates for employees in certain high-risk sectors and patrons certain indoor settings are cropping up across the country and within California. California is particularly challenging because of the patchwork of local orders.

Consult your Seyfarth attorney, including any member of Seyfarth’s Workplace Safety Team, to ensure that your business is in compliance with the ever-changing COVID-19 rules and regulations.

Edited by Coby Turner

Seyfarth Synopsis: On August 5, 2021, California’s Public Health Department ordered “health care” workers to provide proof that they received their final dose of a COVID-19 vaccine by September 30, 2021. Unlike the July 26, 2021, Order, the August 5 Order does not allow workers to avoid the vaccine mandate by testing regularly, except for workers who claim a religious or medical exemption.

There’s No Earthly Way of Knowing Which Direction They Are Going

On August 5, 2021, the California Public Health Department issued an Order requiring workers in certain health care settings to show proof that they received their final dose of a COVID-19 vaccine by September 30, 2021.

The August 5 Order builds on Governor Gavin Newsom’s announcement (and the related July 26, 2021 Public Health Order) from just a week prior, which requires state workers as well as workers in health care and “high-risk congregate settings” to either demonstrate proof of full vaccination or be tested for COVID-19 at least once or twice per week, beginning no later than August 23, 2021.

The August 5 Order now makes vaccination mandatory for workers in facilities covered by the Order. It does not allow workers to avoid COVID-19 vaccination by testing regularly for COVID-19, except for workers who claim a valid religious or medical exemption.

Everything in This Room is Vaccinated: Health Care Facilities and Workers Covered by the Order

The health care facilities covered by the August 5 Order are largely the same as those covered by the July 26 Order. But, the August 5 Order does not apply to the “high-risk congregate settings” listed in the July 26 Order (i.e., adult and senior care facilities, homeless shelters, and state and local correctional facilities detention centers), or dental offices.

Under the August 5 Order, vaccination is mandatory for all workers at:

  1. General Acute Care Hospitals
  2. Skilled Nursing Facilities (including Subacute Facilities)
  3. Intermediate Care Facilities
  4. Acute Psychiatric Hospitals
  5. Adult Day Health Care Centers
  6. Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
  7. Ambulatory Surgery Centers
  8. Chemical Dependency Recovery Hospitals
  9. Clinics & Doctor Offices (including behavioral health, surgical)
  10. Congregate Living Health Facilities
  11. Dialysis Centers
  12. Hospice Facilities
  13. Pediatric Day Health and Respite Care Facilities
  14. Residential Substance Use Treatment and Mental Health Treatment Facilities

The August 5 Order applies to all workers in indoor settings where patients have access, including workers not directly involved in patient care, such as clerical, laundry, facilities management, security staff, etc., who may have the potential for direct or indirect exposure to COVID-19 airborne aerosols. The Order also applies to all workers—whether they are employees, contractors, or volunteers.

Exemptions for Religious or Medical Reasons Must Be Documented

The August 5 Order allows the familiar exemptions for bona fide religious or medical reasons, if supported by documentation:

For both exemptions, the worker must provide a form signed by the worker stating that they are declining the vaccine based on religious beliefs or for medical reasons.

For the medical exemption, the worker also must provide a statement signed by a licensed medical professional stating that the worker qualifies for an excuse from the vaccination requirement for a qualifying medical reason. The statement must indicate the likely duration of the worker’s inability to receive the vaccine (or that the duration is unknown or permanent).

Workers claiming an exemption in acute health care and long-term care settings must test twice weekly. Workers in other health care settings must test once weekly. Unvaccinated workers also must wear a surgical mask or higher-level respirator such as an N95 mask at all times.

The Golden Ticket: Facilities Must Keep Vaccination Cards or Similar Records

Other workplace regulations, such as the Cal/OSHA Emergency Temporary Standard on COVID-19 (ETS), have allowed workers to merely attest to their vaccination status as related to those requirements. That is not enough for workplaces covered by the August 5 Order.

Instead, vaccination records must be kept pursuant to the California Public Health Department’s Guidance for Vaccine Guidelines & Standards. The records must include the worker’s full name and date of birth, the vaccine manufacturer, and date the final dose was administered. Acceptable documentation includes a physical or digital image of the worker’s COVID-19 vaccination record card, other proof of vaccination documentation from a healthcare provider, or a digital record with a QR Code that can be scanned by a SMART Health Card reader. The facility may also rely on documentation of vaccination provided by an employer with whom the facility contracts, if that employer also follows the Department’s vaccination records guidelines and standards.

For workers who have claimed religious or medical exemptions, the covered workplace must also keep records of the worker’s testing results.

These records must be made available to local or state public health departments no later than the next business day after receiving a request.

Great Scott! Gadzooks! New Requirements for Visitors to Health Care Facilities Too

A separate August 5, 2021 California Public Health Order requires that general acute care hospitals, skilled nursing facilities, and intermediate care facilities also verify that visitors coming indoors are either (a) fully vaccinated or (b) have received a negative COVID-19 PCR or antigen test within 72 hours of the visit.

Facilities must verify vaccination status by viewing a copy of a vaccination card or medical documentation, viewing a digital image of the record, or by using a digital QR code scanned by a SMART Health Card reader. Facilities must track visitor vaccination status or documentation of a negative COVID-19 test, and have the information available to provide to the local health department in the event of an investigation.

Workplace Solutions

In light of the new August 5 vaccine mandate, covered employers must rapidly adjust their COVID-19 testing and verification procedures. They may also need to reevaluate their current COVID-19 policies and procedures if any of their employees or portions of facilities are covered by the Cal/OSHA ETS.

And, stay alert and continue to watch this blog!  These orders are certainly not showing any signs of slowing… employers not covered by the August 5 Order may soon see similar orders if considered high risk for COVID-19.

Consult your Seyfarth attorney, including any member of Seyfarth’s Workplace Safety Team, to ensure that your business is in compliance with the ever-changing COVID-19 rules and regulations.

Edited by Coby Turner

Seyfarth Synopsis: On July 26, 2021, Governor Newsom, announced that California state workers and workers in “health care” and “high-risk congregate settings” will be mandated to either show proof of being fully vaccinated, or be tested for COVID-19 at least weekly. The mandate also encourages all local governments and other employers to adopt a similar protocol. The California Department of Public Health posted the details of the Order on July 27, 2021.

On July 26, 2021, Governor Newsom issued a press release, noting that California will begin requiring state employees and workers (including employees, contractors, and volunteers) in “health care and high-risk congregate settings” to either show proof of being fully vaccinated or get tested for COVID-19 at least weekly. The Governor is promoting these mandates as an effort to encourage state and healthcare workers to get vaccinated.

The Same Subject In Different Lights

The CDPH detailed in its new posted Order that the mandate will apply to the following types of facilities:

  1. Acute Health Care and Long-Term Care Settings: Testing required at least twice per week for anyone not fully vaccinated.
    • General Acute Care Hospitals
    • Skilled Nursing Facilities (including Subacute Facilities)
    • Intermediate Care Facilities
  2. High-Risk Congregate Settings: Testing required at least one per week for anyone not fully vaccinated.
    • Adult and Senior Care Facilities
    • Homeless Shelters
    • State and Local Correctional Facilities and Detention Centers
  3. Other Health Care Settings: Testing required at least one per week for anyone not fully vaccinated.
    • Acute Psychiatric Hospitals
    • Adult Day Health Care Centers
    • Adult Day Programs Licensed by the California Department of Social Services
    • Program of All-Inclusive Care for the Elderly (PACE) and PACE Centers
    • Ambulatory Surgery Centers
    • Chemical Dependency Recovery Hospitals
    • Clinics & Doctor Offices (including behavioral health, surgical)
    • Congregate Living Health Facilities
    • Dental Offices
    • Dialysis Centers
    • Hospice Facilities
    • Pediatric Day Health and Respite Care Facilities
    • Residential Substance Use Treatment and Mental Health Treatment Facilities

Note: The Order explicitly states that those with medical contraindications to receiving the vaccine, and those who recovered from COVID-19 in the prior 90 days are not exempt from the testing requirements.

No Time For Ceremony

The requirement will take effect on August 2 for state workers, and on August 9 for health care workers and congregate facilities. As testing is phased in, facilities will have until August 23, 2021, to come into full compliance.

Also, even for those workplaces already following the Cal/OSHA Emergency Temporary Standard on COVID-19 (ETS), the mandate will require that employees “show proof” of vaccination to their employer, as opposed to simply attesting to vaccination status as allowed by the ETS. If an employee does not show proof of being fully vaccinated, they must be considered unvaccinated. The Order allows for “proof” to be in the form of:

  • presenting a vaccination record or card, or a photo of it which includes name of person vaccinated, type of vaccine provided and date last dose administered;
  • a digital record that includes a QR code that when scanned by a SMART Health Card reader reveals client name, date of birth, vaccine dates and vaccine type, and confirms it’s an official record of the state of CA; or
  • documentation of vaccination from other contracted employers who follow the same vaccination records guidelines and standards.

So, covered workplaces may need to go back to employees who previously provided only their attestations of vaccination status, and seek documentary proof of vaccination status.

Records of vaccination verification must be made available, upon request, to the local health jurisdiction for purposes of case investigation.

To Preserve Inviolate Those Inestimable Privileges

Employers should also remember that they need to continue to follow CDPH masking guidance. And to the extent they are already applicable, covered facilities must also continue to adhere to Cal/OSHA’s standards for Aerosol Transmissible Diseases (ATD), which requires respirator use in areas where suspected and confirmed COVID-19 cases may be present, and the ETS that requires all unvaccinated workers be provided a respirator, at no cost, upon request.

The Order also requires that acute health care and long-term care settings must provide respirators to all unvaccinated or incompletely vaccinated workers who work in indoor work settings where (1) care is provided to patients or residents, or (2) to which patients or residents have access for any purpose. Like workplaces covered by the ETS, these facilities must provide the respirators at no cost, and workers must be instructed how to properly wear the respirator and how to perform a seal check according to the manufacturer’s instructions.

Workplace Solutions

In light of the mandate, covered employers must rapidly adjust their COVID-19 testing and verification procedures, and they may need to reevaluate their current COVID-19 policies and procedures if covered by the Cal/OSHA ETS. Consult your Seyfarth attorney, including any member of Seyfarth’s Workplace Safety Team, to ensure that your business is in compliance with the ever-changing COVID-19 rules and regulations.

 

Edited by Coby Turner and Elizabeth Levy

 

Seyfarth Synopsis: Several California counties currently have mask “recommendations” that are stricter than the state’s guidance, recommending all people wear masks in indoor settings. As of 11:59 p.m. on July 17, 2021, Los Angeles will go a step further, implementing a revised Public Health Order with a new mask mandate requiring people—regardless of vaccination status—to wear masks in public indoor settings.

Spike in COVID-19 Cases Prompts New Mandatory Restrictions In Los Angeles

The Los Angeles County Health Department noted that COVID-19 cases in Los Angeles County increased sevenfold since California’s June 15 reopening, and test positivity rates continue to creep up. Based on this, and until July 15, 2021, Los Angeles County “strongly recommended” people “wear masks indoors in public places when you don’t know everyone’s vaccination status regardless of your vaccination status.”

In a further attempt to curb recent spikes in cases, Los Angeles County announced that it is turning the recent recommendation into an order. The new Order requires individuals to wear face coverings in public indoor spaces and businessesregardless of vaccination status.

This new mask Order is more stringent than the state’s guidance and Cal/OSHA’s ETS (which permits fully vaccinated individuals to forgo masks in many circumstances), and will go into effect at 11:59 p.m. on Saturday, July 17, 2021. Businesses in Los Angeles County who are covered by this Order will need to update their mask policies, post clearly visible signage regarding masking rules, and require all employees and patrons to wear masks in indoor settings.

The Order also requires that employees who are not fully vaccinated (or recovered from COVID-19 within the last 90 days), and who cannot wear masks while at work, be tested for COVID-19 at least twice per week. This is likewise more stringent than the ETS, which only requires once weekly testing.

Multiple Other Counties Strongly Recommend Face Coverings Indoors

In what appears to be a growing trend, Alameda, Contra Costa, Marin, San Francisco, San Mateo, Santa Clara, Sonoma, Yolo, Sacramento, and Fresno counties, as well as the City of Berkeley, also strongly recommend that everyone wear face coverings in public indoor spaces (regardless of vaccination status) due to growing concerns of the rapidly spreading Delta variant and increasing COVID-19 cases. As cases rise in California, other health departments seem to be considering similar recommendations.

Workplace Solutions

As the dust settles on the new Cal/OSHA ETS, employers need to remain flexible and prepared to adhere to more stringent local requirements. And don’t forget that employers governed by the ETS who provide residential housing will also now need to provide face coverings and information to residents on when face coverings should be used in accordance with the updated local orders and guidance.

To ensure compliance with California’s patchwork of COVID regulations, please don’t hesitate to consult a Seyfarth attorney, including any member of Seyfarth’s Workplace Safety Team, with any COVID-19 related questions.

Edited by Coby Turner

Seyfarth Synopsis: Summertime is here. That time of year when wildflowers cover the landscape, birds are singing, and summer love is in the air—and that air may just drift into the workplace. And while a budding relationship seems innocent enough, the thorny reality of potential harassment, quid pro quo, hostile work environment, and other claims stemming from the demise of such a relationship can, and should, be a concern for employers. We have raised Love And The Workplace before, and summer is a perfect time to revisit. Consider adding a review of your policies to your summer checklist.

When Is A Workplace Romance An Employer’s Concern?

It is just an innocent flirtation or romance, right? It is none of their colleagues’ business, right? Yes and no.

Who an employee dates outside of the office is certainly between that person and his or her significant other. If that significant other is a co-worker, however, things could get a little complicated—but they do not have to be unmanageable or impossible.

Employers should be cognizant of the fact that a workplace romance has the potential to distract co-workers and lead to poor morale, allegations of favoritism, and an underlying tension that can leave everyone feeling less than satisfied with their work environment. That behavior is an employer’s concern because the employer wants to ensure their employees are comfortable, happy, and productive.

Choosing policies over policing workplace relationships can be a healthier approach that allows an employer to accommodate a relationship rather than punish employees for otherwise lawful conduct that occurs during nonworking hours. It can also help avoid the same potential of negatively affecting employees’ morale if a workplace relationship is completely precluded (or having the employees just refuse to disclose or lie about the relationship).

To help avoid these pitfalls, employers should proceed with caution and consider having policies in place to help guide employees, and inform them at the outset what is and is not permitted in the workplace. Such policies must strike a balance between respecting employees’ privacy rights and regulating workplace conduct to ensure a positive workplace culture at all times.

What Are The Right Policies For Me?

In California, it’s generally not advisable for employers to simply ban their employees from dating absent a conflict of interest or other concerns. While an employer in California can’t stop love, it can implement policies to help protect its employees and itself. But just as no one wildflower blooms in the field, the most appropriate workplace policies to address inter-office relationships can depend on each workplace environment.

In addition to California-compliant anti-harassment and anti-discrimination policies, some employers choose to implement specific workplace relationship policies. Such policies can include the following:

  • Requiring employees to inform management if their relationship lasts longer than a certain period of time.
  • Creating a list of examples of acceptable and unacceptable relationship-related behavior in the workplace. This helps keep the focus on workplace behavior and not on the employees’ personal relationship.
  • Encouraging employees to bring concerns to management or Human Resources if they feel a workplace romance is negatively affecting their work environment.
  • Although employees are entitled to engage in lawful off-duty conduct with each other, California employers can consider a policy that restricts or discourages same-department, managerial-subordinate, and/or employee-contractor/vendor relationships, as well as relationships that involve anyone who determines the terms and conditions of the other employee’s employment. California acknowledges that these relationships can create a conflict of interest. A managerial-subordinate relationship has the most potential to lead to severe sexual harassment or quid pro quo allegations from the subordinate. In addition, other issues can arise from a workplace relationship, including an increased risk of the improper disclosure of confidential information (an issue that may appear in a future blog article). Adding to this, colleagues can also be affected by the relationship and accuse the supervisor of favoritism or creating a hostile work environment.
  • Love contracts” may be an option. However, California employers should be aware that the law limits the enforceability of waivers or releases of a claim under the California Fair Employment and Housing Act. This includes requiring an employee to execute a statement that he or she does not possess any claim or injury against the employer or to sign a document that denies the employee the right to disclose information about unlawful acts in the workplace, including but not limited to sexual harassment.

Workplace Solutions

There are a number of options employers have for being proactive and supportive of healthy relationships in the workplace. This summer, consider refreshing your office relationship policies and perhaps adding some new policies to help protect you and your employees from the legal risks that can arise from a workplace relationship. You all belong among the wildflowers, as Tom Petty might have said. For assistance on reviewing your policies or crafting new ones, please contact your favorite Seyfarth attorney.

Edited by Coby Turner

We’re pleased to announce that the 2021 version of our Cal-Peculiarities: How California Employment Law is Different, your indispensable California employment law guide, is now available, coinciding with our annual update webinar series on the same subject! Click here to request your copy today!

This edition, like its predecessors, aims to help private employers understand what’s peculiar about California employment law. In the 2021 Edition, we continue to highlight recent court decisions and legislative developments, and how they may impact you and your business.

  • Emerging issues in the life of COVID-19
  • Overview of COVID-19 provisions in the state of California
  • COVID-19 supplemental sick pay
  • COVID-19 Hero pay
  • Industry specific new rehire laws
  • Cal/OSHA updates
  • Independent contractor intricacies
  • Meal period rounding issues
  • Regular rate issues for meal premium pay and sick pay

The book is available in a convenient, searchable eBook and PDF formats. Click here to request your copy today!

Cal-Peculiarities Webinar Series

In connection with the launch of the publication, we will be hosting a four-part series of micro-webinars aimed at covering some of the biggest changes in California employment law the last year Please click here to register!

Seyfarth attorneys Dana Howells, Coby Turner and Ann Marie Zaletel will kick-off with:

Series 1: COVID-19 Supplemental Sick Pay

Wednesday, June 23, 2021

1:00 p.m. to 1:30 p.m. Pacific

4:00 p.m. to 4:30 p.m. Eastern

3:00 p.m. to 3:30 p.m. Central

2:00 p.m. to 2:30 p.m. Mountain

Topics to include:

  • Key differences with the new California Supplemental Paid Sick Leave
  • Additional covered reasons for leave and interplay with other paid leave
  • Retroactive effect, amended rate of pay, and notification requirements

There is no cost to attend these programs, however, registration is required. Please click here to register!

2021 Cal-Peculiarities Webinar Series Full Schedule

  • Series 1: COVID-19 Supplemental Sick Pay 
    Wednesday, June 23, 2021 | 1:00 pm – 1:30 pm PST
  • Series 2: Hero Pay/Industry Specific New Rehire Laws 
    Wednesday, June 30, 2021 | 1:00 pm – 1:30 pm PST
  • Series 3: Independent Contractor Intricacies 
    Tuesday, July 6, 2021 | 1:00 pm – 1:30 pm PST
  • Series 4: Rounding and Meal Periods
    Tuesday, July 13, 2021 | 1:00 pm – 1:30 pm PST

On behalf of Seyfarth’s Cal-Peculiarities team, thank you for your continued interest in the blog.

Seyfarth Synopsis: Following a rollercoaster ride that lasted for weeks, and culminated in another 4.5 hour long marathon meeting, on June 17, 2021, Cal/OSHA finally approved a revised version of its Emergency Temporary Standard (“ETS”). While the revised ETS aligns closer to guidance issued by the Center for Disease Control and Prevention (“CDC”) and California Department of Public Health (“CDPH”) with regards to face coverings, it still includes many controversial provisions relating to documenting employee’s vaccination status, providing approved respirators upon request for voluntary use, testing, and exclusion pay, amongst others.

Overview

As we have previously written about at length, Cal/OSHA’s ETS has endured a long road to adoption. Following withdrawal of an initial revision of the ETS that was nearly universally panned, Cal/OSHA issued new revisions on June 11, 2021. Cal/OSHA preemptively issued FAQs, available here, acknowledging that the new proposed ETS was raising compliance questions even before becoming effective.

On June 17, 2021, the OSHSB held yet another marathon meeting lasting 4.5 hours before adopting the revised ETS in a 5-1 vote. Following the meeting, the Governor signed an Executive Order with the intent of making the revised ETS effective immediately.

What Exactly Are The Rules Now?

Our previous detailed analysis of Cal/OSHA’s revised ETS is available here, but highlights include the following:

Face Coverings

  • Where an employer has “documentation” confirming that an employee is fully vaccinated, the employee can go without a face covering in most circumstances.
    • Cal/OSHA’s FAQs clarify that no specific form of documentation of vaccination is required, and identify the following acceptable options: 1) Employees provide proof of vaccination (vaccine card, image of vaccine card or health care document showing vaccination status) and employer maintains a copy; 2) Employees show proof of vaccination to the employer, similar to the way an employee may show identification for I-9 purposes, and the employer maintains a record (e.g., a log) of the employees who presented proof, but not the vaccine record itself; or 3) employees self-attest to vaccination status and employer maintains a record of who self-attests.
    • Whatever method the employer chooses to accept as proof of vaccination, the employer must make a record of vaccination status and keep such records confidential.
    • Employees for whom the employer lacks documentation confirming that they are fully vaccinated must be treated as unvaccinated for all purposes under the ETS, including exclusion, testing, face coverings, etc.
    • Note: Don’t forget to check and update your workplace California Consumer Privacy Act (“CCPA”) notices related to gathering employee vaccination information, if applicable.
  • Face coverings are still required indoors and in vehicles for employees who are not fully vaccinated.
  • All employees must wear face coverings during an outbreak regardless of their vaccinated status. An outbreak is when you have 3 or more employee COVID-19 cases in an exposed group during a 14-day period.
  • Face coverings are not required outdoors (except during outbreaks when physical distancing cannot be maintained).
  • Employers must provide face coverings to employees who are not fully vaccinated.
  • Employees who are not fully vaccinated must be provided with, and encouraged to use, respiratory protection upon request for their voluntary use, and trained on how to use the respiratory protection. Appropriate respirators include those approved by NIOSH (available here), such as N95s, but not KN95s.
  • Respirators must also be provided for voluntary use to all employees, regardless of vaccination status, if a worksite is in a “major” outbreak status (i.e. more than 20 COVID-19 cases within 30 days in an exposed group).
  • Employers must remind their employees that employees may wear face coverings at work regardless of vaccination status, without fear of retaliation.

COVID-19 Testing

  • Employers will not need to test fully vaccinated or naturally immune employees who are part of an exposed group in an outbreak, or who have had a close contact at work with a COVID-19 case, unless they have symptoms.
  • Employers must provide testing for all employees in an exposed group during “major” outbreaks, regardless of vaccination or symptom status.
  • Employers must provide free testing during paid working time to all employees who are not fully vaccinated who are symptomatic, regardless of any potential work-related exposure.

Physical Distancing

  • Cal/OSHA’s previous requirements involving physical distancing or barriers have been eliminated, except where there’s a “major” outbreak or an employee is not wearing a face covering as a reasonable accommodation.

COVID-19 Prevention Program/Training

  • The ETS includes updated training requirements, such as topics covering vaccinations, respirator availability/use/effectiveness, and when face masks must be used.
  • Employers must continue to have an effective written COVID-19 Prevention Program.
  • Cal/OSHA indicated that it will provide updated training materials as well as revised COVID-19 Model Prevention Programs in the near future on their website.

Workplace Solutions

In light of Cal/OSHA’s revised ETS, employers must reevaluate their current COVID-19 policies and procedures to ensure compliance with the new requirements. Consult your Seyfarth attorney, including any member of Seyfarth’s Workplace Safety team, to ensure that policies, trainings, and procedures meet the ETS requirements, and when managing interactions with Cal/OSHA regarding the ETS.

Seyfarth Synopsis: While the Buggles took creative liberties when they claimed that Video Killed The Radio Star, the House of Origin deadline axed a number of employment-related bills. California legislators began this legislative session at the apex of the pandemic, introducing a flurry of COVID-19-related bills, many of which failed to survive the June 4, 2021 deadline to pass out of the bill’s House of Origin. Most remaining bills will increase employer obligations if enacted, while many employer-friendly proposals fell by the wayside.

Friday, June 4, marked the first major deadline of the 2021 legislative year—for bills to pass out of their House of Origin—and also marked the end of the road for many employment-related bills. The surviving Senate Bills will now wind their way through the committee and floor vote process in the Assembly, and vice-versa. Many of these measures will continue to undergo significant amendment, and not all will make it through the legislative process. Stay tuned for more in-depth analyses of the proposed bills as the session continues.

School House Rock: No Longer “Just a Bill

COVID-19 Supplemental Paid Sick Leave: SB 95 was a budget trailer bill that—effective immediately upon its signing on April 16, and retroactive to January 1, 2021—extended COVID-19 supplemental paid sick leave (SPSL) to September 30, 2021 for employers with over 25 employers. The new law provides an annual allotment of up to 80 hours of available SPSL, covers persons who telework, and extends SPSL entitlements to reasons related to vaccinations and family care. See our in-depth analysis of the measure here.

Rehiring and Retention of Displaced Hospitality Workers: As we detailed here, SB 93 requires certain hospitality employers—hotels, private clubs, event centers, and airport hospitality services—and successor employers, to offer preferential hiring to employees laid off because of the pandemic. The bill carried an urgency clause, making it effective the same date the Governor signed it, April 16, 2021.

Stayin’ Alive/Break On Through to The Other Side

The bills below have officially broken through to the other legislative house, and are thus stayin’ alive for the time being.

A. Leave

Family Member Definition Expansion: AB 1041 would expand the definition of “family member” for purposes of the Healthy Workplaces, Healthy Families Act of 2014 (CA PSL) in Labor Code Section 245.5 to add “designated person,” defined as “a person identified by the employee at the time the employee requests paid sick days.” The bill would similarly amend the California Family Rights Act (CFRA), Gov’t Code § 12945.2, to add “designated person,” defined as “a person identified by the employee at the time the employee requests family care and medical leave,” as a person for whom an employee may take leave for family care and medical leave, similar to many existing municipal paid sick leave laws. Both laws would allow an employer to limit an employee to one designated person per 12-month period.

Paid Family Leave Weekly Benefit Increase: AB 123 would revise the formula for determining benefits available pursuant to the family temporary disability insurance program, for periods of disability commencing after January 1, 2022, by redefining the weekly benefit amount to be equal to 90% of the wages paid to an individual for employment by employers during the quarter of the individual’s disability base period in which these wages were highest, divided by 13, but not exceeding the maximum workers’ compensation temporary disability indemnity weekly benefit amount established by the Department of Industrial Relations.

B. DFEH

Small Employer Family Leave Mediation Pilot Program and CFRA Parent-in-Law Care Leave: AB 1033 would require the Department of Fair Employment and Housing (DFEH) to notify an employee who requests an immediate right-to-sue letter alleging CFRA violations of the requirement for mediation prior to the employee filing a civil action. The bill would toll the statute of limitations applicable to the employee’s claim from the date the employee contacts the DFEH’s dispute resolution division regarding the intent to pursue a legal action until the mediation is complete or deemed unsuccessful. The bill would allow employers of between 5 and 19 employees who do not receive the required modification as a result of the employee’s failure to contact the DFEH’s alternate dispute resolution (ADR) division, to stay the civil action pending completion of ADR. The measure would also expand CFRA to include leave to care for a parent-in-law within the definition of family care and medical leave.

C. Workplace Safety

Safety Citations and Retaliation Prohibitions: SB 606 would require that Cal/OSHA issue a citation to an egregious employer (defined as an employer that intentionally made no reasonable effort to eliminate a known violation) for each willful violation, and each employee exposed to that violation would be considered a separate violation for purposes of the issuance of fines and penalties. The bill has already been amended to remove a rebuttable presumption of retaliation if an employer takes adverse action against an employee within 90 days of the employee doing certain things, such as disclosing a positive test or diagnosis of a communicable disease, requesting testing as a result of exposure, or reporting a possible violation of an OSHA standard.

For more information on the saga of Cal/OSHA’s changes to its own emergency temporary standard, see our blog here.

Warehouse Distribution Centers Quota Disclosures: AB 701 would require that employers provide nonexempt employees who work at a warehouse distribution center a written description of each quota the employee must meet, including the quantified number of tasks to be performed and materials to be produced or handled. The bill would prohibit an employer from requiring employees to meet a quota that causes them to miss a meal or rest period, and employers must provide employees a copy of the most recent three weeks of the employee’s own personal work speed data. When complaint alleging violations of this provision is filed, the Labor Commissioner must provide a written notice of the right to report violations, anti-retaliation measures for reporting unsafe workplace conditions or participating in an investigation by an enforcement agency. The bill would also authorize a current or former employee to sue for injunctive relief, costs, and reasonable attorney’s fees in that action.

D. Wage and Hour

Expansion of Garment Manufacturing Definition: As summarized here, SB 62 would potentially expose persons or entities contracting for the performance of garment manufacturing to joint and several liability with any manufacturer and contractor for the full amount of any unpaid wages, any other compensation, damages, liquidated damages, attorney’s fees, civil penalties, and any other penalties to any and all employees who performed garment manufacturing operations for any violation. The measure would also eliminate piece rate compensation in the garment industry. This measure almost precisely replicates SB 1399, which did not quite make it to the Governor’s desk in 2020, likely as a result of timing and other priorities.

Wage Theft: AB 1003 would amend the Penal Code to make an employer’s intentional theft of wages, payments, or gratuities over $950 punishable as grand theft. The bill would apply to employees and independent contractors.

Wage Withholdings: SB 505 would provide that, prior to garnishing public employees’ wages when the employer is required or empowered to do so by state or federal law, employers must make a good faith effort to consult with an employee to obtain a written authorization to resolve monetary obligations before employing third-party collection services or commencing a civil action. Where a written authorization provides for a withholding or diversion of an employee’s wages, the bill would prohibit the amount withheld or diverted from exceeding 5% of the employee’s monthly gross wages.

E. Civil Procedure

Court Changes: SB 241, the “2021 California Court Efficiency Act,” was originally a spot bill aimed to enact legislation that would streamline discovery processes to reduce costs to the courts and litigants. This would have been a welcome change to litigators and businesses alike. However, the measure was significantly amended, and now would authorize an entity that is not a shorthand reporting corporation to engage in specified acts relating to shorthand reporting if the entity is approved for registration by the Court Reporters Board of California. The bill would also require courts to electronically serve documents on a party that has agreed or consented to accept electronic service. It would also authorize, until January 1, 2024, a witness in a proceeding to appear and give testimony by remote electronic means that provide a live audiovisual connection to the court, if the parties stipulate to this manner of appearance.

Another Potential Restriction on Settlement Agreements: SB 331, the “Silenced No More Act,” would amend Section 12964.5 of the Government Code (enacted by SB 1300 of 2018) so that employers implementing non-disparagement agreements as a condition of employment (or in a separation agreement) would need to carve out an employee’s ability to discuss conduct the employee has reason to believe is unlawful. The bill would also amend Section 1001 of the Code of Civil Procedure (enacted by SB 820 of 2018) to extend the prohibition on confidentiality provisions in settlement agreements to all forms of workplace discrimination—not just discrimination based on sex. This bill would build upon CCP Section 1002.5 (enacted by AB 749 of 2019 and amended by AB 2143 in 2020) by expanding the prohibition to include acts of workplace harassment or discrimination regardless of sex.

F. Labor

Unionization Process for Agricultural Employees: AB 616 essentially eliminates secret ballot union elections by permitting a labor organization to be certified as the exclusive bargaining representative of a bargaining unit through a representation ballot card election where at least 50 percent of the employer’s workforce votes in favor of unionization. Even more concerning, the bill would create a presumption of retaliation—that can be rebutted only by clear, convincing, and overwhelming evidence—whenever an employer disciplines, suspends, demotes, lays off, or terminates a worker during a labor organization’s representation ballot card campaign.

G. Miscellaneous

Gender Neutral Retail Departments: AB 1084 would require a retail department store with 500 or more employees that sells childcare items, children’s clothing, or toys, to maintain a gender-neutral section in which a reasonable selection of the items, articles, and toys for children that it sells shall be displayed, regardless of whether they have been traditionally marketed for either girls or for boys. The requirements of this bill would be enforced by the State of California through the Attorney General, a district attorney or city attorney, in any court of competent jurisdiction and provides for recovery of attorneys’ fees. Failure to comply with the measure’s requirements would be penalized by a civil penalty, not to exceed $250 for a first violation, and $500 for a subsequent violation.

Displaced Janitor and Hotel Worker Opportunity Act: AB 1074 was the original version of the measure requiring rehiring and retention of displaced hospitality workers, which eventually passed as SB 93, as noted above. After the passage of SB 93, AB 1074 was amended to simply rename the “Displaced Janitor Opportunity Act” the “Displaced Janitor And Hotel Worker Opportunity Act” and to extend the provisions of the Act to hotel workers. The bill would also redefine “awarding authority” under the act to include any person that awards or otherwise enters into contracts for hotel services including guest service, food and beverage, or cleaning performed within the state.

Required Disclosures to Temporary Agricultural Workers: AB 857 would prohibit employers from retaliating against an H-2A employee for raising questions that relate to employment, housing, or working conditions. and would require an employer to provide an H-2A employee on the day the employee begins work in the state a written notice in Spanish and, if requested by the employee, in English, containing specified information relative to an H-2A employees’ rights pursuant to federal and state law. It would also require an employer to provide compensation for travel time at the regular rate of pay to or from employer provided housing (with certain exemptions for employees covered by CBAs).

Large Group Health Insurance: SB 255 would authorize an association of employers to offer a large group health care service plan contract or large group health insurance policy consistent with ERISA if certain requirements are met, including that the association is headquartered in California, has continuously been a Multi-Employer Welfare Arrangement under ERISA (MEWA) since before March 23, 2010, and that the large group health care service plan contract or large group health insurance policy have provided a specified level of coverage since January 1, 2019.

“End of the Road” for These Bills

Like the crooners from Boyz II Men in this famous ditty, the bills below have come to the end of the metaphorical road. But while these measures failed to make it past the deadline, employers should be prepared for similar measures to be re-introduced at a later date because, as the song lyrics go, it is possible the California Legislature just “can’t let go.”

A. A Sigh of Relief

Bereavement Leave Act of 2021: AB 95 would have required employers with 25 or more employees to grant unpaid bereavement leaves of up to ten business days, and would have required employers with fewer than 25 employees to grant unpaid bereavement leaves of up to three business days. Leave entitlement would be triggered by the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner.

Employment Discrimination: AB 1119 would have added “family responsibilities”—defined as the obligations of an employee to provide ongoing care for a minor child or a care recipient—to the list of FEHA-protected characteristics for which employers must engage in the interactive process and provide reasonable accommodation to an applicant or employee.

Paid Sick Leave Accrual and Use: AB 995 would have modified the employer’s alternate sick leave accrual method to require that an employee have no less than 40 hours of accrued sick leave or paid time off by the 200th calendar day of employment or each calendar year, or in each 12-month period. The bill would have raised the employer’s authorized limitation on the employee’s use of carryover sick leave to 40 hours or 5 days.

Worker Metrics Program: AB 1192, referred to by the California Chamber of Commerce as the “Public Shaming of Employers” bill, would have required annual reporting of wage and hour data and employee benefits for an employer’s entire United States workforce that would have been published on the Labor and Workforce Development Agency’s website.

Employer Provided Backup Childcare Benefit: AB 1179 would have required employers of 1,000 or more employees to provide employees, on or after January 1, 2022, with up to 60 hours of paid backup childcare benefits.

COVID-19 Hazard Pay for Healthcare Workers: AB 650 would have required all private healthcare providers to pay mandatory bonuses through the end of 2022 to all workers, including employees of contractors. The bill did not provide any credit for any other bonuses, pay increases, or other benefits employers provided during the pandemic.

Fast Food Council / Franchisor Joint Liability: AB 257 would have established the Fast Food Sector Council, responsible for creating a fast food workers bill of rights, including wages, working conditions, etc. This onerous bill would have required franchisors to insure franchisee compliance with a variety of employment, worker, and public health and safety laws and orders, including those related to unfair business practices, general liability, employment discrimination, the California Retail Food Code, a range of labor regulations, and emergency orders. The measure would have established joint and several liability for franchisee non-compliance. The bill would have nullified any potential work around by prohibiting any waiver or indemnity provisions. Finally, while the bill would have been mostly enforced through the DLSE, ominously, it would have also given franchisee employees a private right of action for retaliation against franchisors.

Paid Family Leave Expansion Where Child Deceased In Childbirth: AB 867 would have expanded eligibility for benefits under the Paid Family Leave program to include leave for a parent who was pregnant with a child, if the child dies unexpectedly during childbirth at 37 weeks or more of pregnancy.

Political Affiliation Protection: SB 238 would have added political affiliation as a protected characteristic under the FEHA.

Cannabis Screening: AB 1256 would have prohibited employers from discriminating against a person in hiring, termination, or any term or condition of employment because a drug screening test detected tetrahydrocannabinol (THC) in their urine. (This bill would have exempted employers required to drug test based on federal law or regulations, those that would lose monetary or licensing benefits for failing to drug test, and building and construction employers.)

Workplace Diversity: AB 1122 was a spot bill that would have encouraged employers to develop and implement personnel policies that incorporate workforce diversity. The measure was sponsored by the California Employers Association.

B. That Would Have Been Helpful

Limitations to PAGA: AB 385 sought to ease the litigation risk of the pandemic on employers by prohibiting employees from maintaining an action under PAGA for violations of the Labor Code arising between March 4, 2020, and the state of emergency termination date. AB 530 would have required an “aggrieved employee” to inform the employer which specific violations of the Labor Code are being alleged under each subdivision of PAGA and to inform the employer if statutory right-to-cure provisions apply.

Independent Contractors: Three bills have been introduced thus far in the continued attempt to reform AB 5, including AB 231, which would make permanent the exemption from the ABC test for licensed manicurists, by providing that they be indefinitely governed by the multifactor Borello test instead of the ABC Test. AB 612 would create a new exemption from the ABC test for a bona fide business-to-business arrangement that involves a voluntary deposit, to be made available to entities that utilize their own employees to produce, locate, or procure tangible personal property, which it owns, leases, or otherwise has the lawful right to possess. And, as expected, the least likely to gain traction, AB 25 would have replaced the ABC test with the multifactor Borello test.

Documenting COVID-19 Tests: AB 757 would have authorized a private employer to request prescribed documentation of a positive COVID-19 test or diagnosis if (1) an employee reports that the employee is unable to work due to a positive for COVID-19 test result and (2) the employer determines that an employee may be subject to a 14-day exclusion from the workplace as required under certain law or regulations.

Wage Records Inspection: AB 436 would have amended Labor Code § 226(b) to harmonize the time frame to respond to requests pursuant to Labor Code § 226(b) with requests for personnel records pursuant to Labor Code § 1198.5 by allowing the former records to be produced within the same time frame as the latter (i.e., 30 days).

Telecommuting Employees: AB 513 was a welcome bill to employers that would have authorized employees working from home to receive legally required notices and postings electronically and sign certain documents electronically, and would deem that the final wages due to an employee working from home are paid on the date that the paycheck is mailed to the employee.

Telework Flexibility Act: AB 1028 would have authorized telecommuting employees to waive overtime up to 10 hours of work per day, and waive split shift premiums if the employee requests an employee-selected remote work flexible schedule, and it would permit an employee to choose when to take any meal or rest period during the workday. The bill also would have prohibited an employee from recovering PAGA penalties meal and rest break violations if the employee engaged in remote work. Similarly, AB 55 was introduced as a spot bill with its stated purpose of affording certain rights and benefits to telecommuting employees, but it was not amended.

Workplace Flexibility Act of 2021: AB 230 would have permitted an individual, nonexempt employee to request an employee-selected flexible work schedule, allowing for workdays of up to 10 hours per day within a 40-hour workweek, where the employee would not be entitled to overtime compensation for those additional daily hours.

C. COVID-19 Bills That Were Stopped In Their Tracks

COVID-19 Contact Tracing and Safety Policies: SB 46 would have required employers to develop and implement contact tracing and safety policies for their employees, including requiring notice to the employer when an employee receives a positive COVID-19 test.

COVID-19 Income Tax Credits: AB 62 would have allowed a credit against corporate taxes in an amount equal to the total amount paid or incurred to comply with COVID-19 restrictions.

COVID-19 Rent Relief: AB 255 was earmarked to provide commercial rent relief protections for small businesses affected by the COVID-19 pandemic.

Keep California Working Act: SB 74—introduced on a bipartisan basis by Senators Caballero (D-Salinas) and Borgeas (R-Fresno)—would have appropriated $2.6 billion for grants to small businesses and nonprofit entities that meet specified criteria, including that the entity had experienced economic hardship resulting from the COVID-19 pandemic.

Pandemics Priority for Medical Treatment: AB 93 would have prioritized workers in the food supply industry, such as field workers and grocery workers, for rapid testing and vaccination programs in response to pandemics, including COVID-19.

D. Unemployment / Workers’ Comp. Bills That Didn’t Make the Cut

Enhancing Unemployment Convenience: AB 274 would have revised the definition of prepaid card by requiring cards to be chip-enabled. AB 24 would have required the unemployment development department (EDD) to provide a claimant with a notification of the computation used to determine their benefits. And AB 8 would have permitted the rightful recipient of unemployment compensation benefits to elect whether the benefits payments are directly deposited into a qualifying account or applied to a prepaid debit card.

Preventing Unemployment Fraud: AB 23 would have required the unemployment development department to cross-check all claimant information with state and county correctional facility inmate data in an effort to detect fraudulent applications. The bill was borne from California coming to grips with its fraudulent unemployment insurance payments of almost $1 billion to state prisoners after Congress passed the CARES Act.

COVID-19 Temporary Benefits: AB 19 would have required the EDD to provide, until July 1, 2022, and following the termination of unemployment assistance programs created by the CARES Act, benefits equivalent to the terminated federal or state supplemental unemployment compensation payments for the remainder of the duration of time the individual is unemployed due to the COVID-19 pandemic. Unemployment benefits provided under this legislation would not be charged against the reserve account of any employer.

Advisory Committee on Unemployment Insurance: AB 42 was a spot bill set up to establish an advisory committee to advise the EDD on matters within the department’s jurisdiction, including, but not limited to, unemployment insurance.

Hospital Employee Injuries: SB 213 would define “injury” for a hospital employee to include infectious diseases, cancer, musculoskeletal injuries, post-traumatic stress disorder, and respiratory diseases. The bill would have, for purposes of workers’ compensation, created rebuttable presumptions that injuries in a hospital employee who provides direct patient care in an acute care hospital arose out of and in the course of the employment.

Workplace Solutions

Thankfully, many of the most concerning bills introduced were unable to survive beyond the House of Origin deadline. Aside from the sudden retroactive passage of SPSL and immediately effective Right to Recall laws, the remaining bills are not yet set in stone. The legislative session is still in its infancy, and each measure—apart from, perhaps, SB 62—will almost certainly be amended. We’ll keep you updated here at Cal Peculiarities, and you can also check out our Policy Matters podcast and newsletter for regular check-ins on California (and national) policy and legislative updates as well.

Edited by Elizabeth Levy and Coby Turner