Seyfarth Synopsis:  On Saturday, October 9, 2021 Governor Newsom signed the last of 2021’s pending employment-related bills, including a bill imposing even more restrictions on settlement agreements. The new laws will become effective on January 1, 2022. This post summarizes the new approvals as well as other new key employment laws with which California employers will need to comply.

On October 9, 2021 a day before his official deadline, Governor Newsom finished review of the 836 bills passed to him by the Legislature, signing 770. This 7.9% veto rate is higher than the lowest veto rates tallied by Jerry Brown in the late 70s/early 80s; but far lower than Arnold Schwarzenegger, who had the highest veto rates.

The most notable bill approved on October 9 was the “Silenced No More Act,” SB 331, which will, for settlement agreements entered into on or after January 1, 2022, expand the prohibition on confidentiality provisions to all forms of workplace discrimination.

Large retailers and wholesalers were hit especially hard this legislative season, with bills such as AB 1084, which will require large retail department stores to display a “reasonable selection” of gender-neutral items for children; SB 62, which imposes joint and several liability for brand guarantors and garment manufacturers; and AB 701, which will impose notice and other requirements on warehouse distribution centers that use quotas.

Also notable are AB 1003, making wage theft grand theft, and AB 1033, which expands CFRA leave to parents-in-law.  Conspicuously absent from the final new law count is any legislation extending COVID-19 Supplemental Paid Sick Leave, which expired September 30, 2021.

Read on for summaries of recently-approved employment laws as well as other major employment bills that the Governor approved or vetoed, some of which we discussed in greater detail in our previous posts on September 15, 23, and 29.

Approvals

More Restrictions on Settlement and Severance Agreements:  For settlement agreements entered into on and after January 1, 2022, SB 331, the “Silenced No More Act” amends Section 1001 of the Code of Civil Procedure (enacted by SB 820 of 2018).  The law extends the prohibition on confidentiality provisions in settlement agreements to all forms of workplace discrimination—not just discrimination based on sex.

SB 331 also amends 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) will need to carve out an employee’s ability to discuss conduct the employee has reason to believe is unlawful. Specifically, it requires provisions restricting employees’ ability to disclose information related to conditions in the workplace to state: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.” The bill also adds a provision specifically stating that any agreement or document violating the above provisions is contrary to public policy and unenforceable. These provisions do not prohibit inclusion of a legally-valid general release or waiver of all claims in a separation agreement, and requires employers offering agreements related to separation to notify the employee that he/she has a right to consult with an attorney, and provide at least five days within which to do so. Like its predecessors, the bill authorizes provisions prohibiting disclosure of the amount paid in a severance or settlement agreement, as well as an employer protecting its trade secrets, proprietary information or confidential information that are not related to unlawful acts in the workplace.

Gender Neutral Retail Departments: AB 1084 will 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. These requirements will 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 will yield a civil penalty not to exceed $250 for a first violation, and $500 for a subsequent violation.

Large Group Health Insurance: SB 255 will 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.

Warehouse Distribution Center Employee Quotas: AB 701, as we discussed in depth previously, among other things, adds several Labor Code sections that will require employers with over 100 California employees at a single warehouse distribution center—or with 1,000 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 within days of the January 1, 2022 effective date.

CFRA Leave for Parents-in-Law: AB 1033, co-sponsored by the California Chamber of Commerce, will add parents-in-law to the list of family members for which an employee can take leave under the California Family Rights Act (CFRA). This addition builds upon last year’s SB 1383, which expanded CFRA to require businesses with as few as five employees to provide 12 weeks of mandatory family leave per year. SB 1383 also expanded the categories of persons for whom an employee can take CFRA leave to care to include grandparents and domestic partners. According to the Chamber of  Commerce, the inclusion of “parents-in-law” was inadvertently omitted from 1383, and its inclusion here, in AB 1033, is to fix this oversight.

AB 1033 will also require the Department of Fair Employment and Housing (DFEH) to notify an employee in writing of the requirement for mediation under the DFEH’s small employer mediation program prior to filing a civil action, and would require an employee to contact the DFEH’s dispute resolution division to indicate whether they are requesting mediation, and make other related changes.

Garment Manufacturer Brand Guarantor Wage/Hour Liability: SB 62 will subject those sitting at the top of the supply chain—what the bill calls “Brand Guarantors”—to liability for the wage violations committed by their garment manufacturing vendors, even where the ultimate seller of the garment was completely unaware of the violation. In other words, as we previously blogged here, the bill will make clothing “brands” and holding companies—and even retailers—jointly liable with the contractors from whom they purchase t-shirts, hats, or even belts to sell for the contractor’s wage/hour violations, and perhaps even for violations by the contractor’s subcontractor.

According to the Governor’s signing announcement, SB 62 aims to “protect marginalized low-wage workers, many of whom are women of color and immigrants, ensuring they are paid what they are due and improving workplace conditions.” The California Chamber of Commerce disagrees, noting that “[n]othing in SB 62 will address the problem of underground bad actors in the garment industry evading the law”; SB 62 simply “allows those bad actors to continue operating as usual while passing the cost and liability to companies that have no control over the workers.” Time will tell if this measure will accomplish its intended goal. Regardless, employers should begin auditing their garment manufacturing vendors as soon as possible.

Emailing Required Postings to Employees: SB 657 adds Section 1207 to the Labor Code to authorize employers to additionally distribute information that they are required to physically post to employees by email with the document or documents attached.

AB 5 Exemptions: Newspaper Distributors and Carriers and Manicurists: AB 1506 and AB 1561, among other things, extend the exemption from the application of the ABC test for independent contractor status for newspaper distributors working under contract with a newspaper publisher and newspaper carriers and for licensed manicurists to January 1, 2025.

Wage Theft as Grand Theft: AB 1003 adds Section 487m to the Penal Code, making it the crime of grand theft to engage in intentional theft of wages, including gratuities, “in an amount greater than nine hundred fifty dollars ($950) from any one employee, or two thousand three hundred fifty dollars ($2,350) in the aggregate.” Grand theft is generally punishable either as a misdemeanor by imprisonment in a county jail for up to one year or as a felony by imprisonment in county jail for 16 months or two or three years.

Removing IWC Licenses to Pay Less to Individuals with Disabilities: Starting January 1, 2022, SB 639 will prohibit the Industrial Welfare Commission from issuing special licenses that authorize the employment of a person with a disability for less than the minimum wage.

PAGA Janitorial CBA Exception SB 646: Creates a limited exception from PAGA for specific janitorial employees performing work under a collective bargaining agreement.

Expansion of OSHA Citation Authority: SB 606 will radically increase Cal/OSHA’s enforcement power by establishing two additional categories of violations for which Cal/OSHA can issue citations: (1) “Enterprise-wide Violations” and (2) “Egregious Violations,” both of which we previously summarized in detail. The California Chamber of Commerce initially designated SB 606 a job killer, but removed the bill from the list after amendments removed a provision that would have created a rebuttable presumption of retaliation if an employer were to take 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.

Cal/OSHA agricultural workers wildfire smoke protections: AB 73 imposes wildfire smoke protections for agricultural workers.

COVID-19 Workplace Notices: AB 654, effective immediately upon its October 6, 2021 approval, clarifies AB 685 of 2020, which requires notice of COVID-19 cases in the workplace by eliminating duplicative obligations for businesses in certain industries, matching terms to corresponding federal guidelines, among other changes.

Hospitality Preferential Hiring for Pandemic Layoffs: 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.

COVID SPSL (Now-Expired) Extension: As discussed in detail here, SB 95 was a budget trailer bill that—effective immediately upon its April 16, 2021 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 provided an annual allotment of up to 80 hours of available SPSL, covered persons who telework, and extended SPSL entitlements to reasons related to vaccinations and family care.

Vetoes

AB 616 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.

AB 123 would have revised the formula for calculating certain leave benefits by requiring the weekly benefit amount be increased to equal to 65% or 75% of the highest wages paid to an individual. In his veto message, the Governor expressed his support for a robust paid leave program, but noted that his administration has already enacted a number of measures—SB 83 (increased duration of paid family leave), SB 1383 (CFRA expansion), AB 138 (increasing wage replacement)—aimed at increasing paid leave, making this legislation an unnecessary new expense. According to the bill’s author, however, the current formula for determining wage replacement is woefully deficient for low-income workers.

AB 1074 would have renamed the “Displaced Janitor Opportunity Act” the “Displaced Janitor And Hotel Worker Opportunity Act,” extending the right to recall provisions of the Act to hotel workers. In his veto message, the Governor explained, as we previously summarized, that he enacted SB 93 in the beginning of 2021, which provided robust recall rights for hotel workers displaced by the pandemic.

Workplace Solutions

Employers will need a few months to prepare before the new laws become effective on January 1, 2022. Should you have a specific question about proactive measures to ensure compliance with any of the above new requirements, please feel free to reach out to your Seyfarth counsel.

Edited by Elizabeth Levy and Coby Turner

Seyfarth Synopsis: On October 6, 2021, the City Council of Los Angeles approved, and Mayor Garcetti signed, an ordinance that will require patrons to show proof of COVID-19 vaccination before entering many indoor locations in the City. Impacted locations include food and drink establishments, gyms and fitness venues, entertainment and recreation venues, personal care establishments, and City government buildings. The ordinance also requires patrons at large outdoor events to show proof of vaccination or a negative COVID-19 test.

The City of Los Angeles has joined other locales, including West Hollywood and San Francisco, in imposing vaccine mandates on patrons of certain businesses. On October 6, 2021, the Los Angeles City Council approved an ordinance that will require businesses to prevent patrons from entering many indoor areas unless the individuals show proof that they have been fully vaccinated against COVID-19, along with their photo ID. The ordinance also requires patrons to show proof of vaccination or a negative COVID-19 test before entering outdoor events with 5,000 to 9,999 attendees (which builds on existing regulations for mega events with over 10,000 people, and a recent Los Angeles County Public Health Order setting new vaccination rules for large events and some indoor activities).

When Is It Effective?

The ordinance did not receive enough votes to go into effect immediately as an urgency ordinance. As a result, it will go into effect 31 days after publication (i.e., November 8, 2021). This creates inconsistencies with internal deadlines in the ordinance, as drafted, that require businesses to post information about the mandate by October 21, 2021, and implement the requirements by November 4, 2021. The ordinance states that the City will post related Rules and Regulations, which may help clarify these inconsistencies.

What Does “Fully Vaccinated” Mean?

A patron is fully vaccinated if it has been at least fourteen days since they received “the entire recommended series” of any COVID-19 vaccine approved by the FDA (including under an emergency use authorization) or the World Health Organization. The ordinance references the current two-dose vaccine series. It is unclear whether the mandate will require proof of booster shots in the future (which may become part of the “recommended series” of vaccines before long).

The Indoor Mandate: Restaurants, Gyms, Theaters, Spas, and More

The ordinance requires four categories of establishments to enforce a vaccine mandate indoors: food and beverage, gyms and fitness, entertainment and recreation, and personal care. The ordinance lists examples for each category:

Category
Examples of Covered Establishments
Food & Beverage
  • restaurants (including fast food)
  • bars, breweries, wineries, and distilleries
  • coffee shops
  • tasting rooms
  • cafeterias and food courts
  • banquet halls and hotel ballrooms
Gyms & Fitness
  • gyms (including hotel gyms)
  • fitness centers
  • yoga, pilates, cycling, barre, and dance studios
  • boxing and kickboxing gyms
  • fitness boot camps
  • other facilities used for indoor group fitness classes
Entertainment & Recreation
  • movie theaters, performing arts theaters
  • live performance venues (including concerts)
  • adult entertainment venues
  • commercial event and party venues
  • sports arenas
  • convention centers and exhibition halls
  • museums
  • malls and shopping centers
  • bowling alleys, arcades, card rooms, and pool and billiard halls
  • family entertainment centers, play areas
  • other recreational game centers
Personal care
  • spas
  • nail salons, hair salons, and barbershops
  • tanning salons
  • estheticians, skin care, and cosmetology services
  • body art professionals and piercing shops
  • massage therapy, except as medically required

The indoor mandate also applies to City of Los Angeles government buildings.

The ordinance encourages establishments to offer service outside for patrons who do not provide proof of vaccination or a sufficient exemption (e.g., curbside pickup, drive thru, delivery, and outdoor seating and dining).

Proof of vaccination would be required upon the patron’s first interaction with in-person staff. However, patrons need not produce proof of vaccination for brief visits to use the restroom, order, pick-up, paying for food or drink to-go, or to perform necessary repairs. But they must wear a well-fitting mask at all times while indoors.

Special Rules for Medical and Religious Exemptions

As with other vaccine mandates, different rules apply to patrons who claim they cannot get vaccinated against COVID-19 due to a medical condition or a sincerely held religious belief.

The ordinance states that in order to obtain an exemption, a patron must “provide” a “self-attestation” that the patron has a medical condition or sincerely held religious belief that prevents them from complying.

For patrons who obtain an exemption on medical or religious grounds, the ordinance limits them to only outdoor areas. These exempt patrons may enter indoor areas only if: (1) outdoor areas are unavailable, and (2) they provide proof of a negative COVID-19 test taken within 72 hours prior to entry of a covered location and photo ID. (In contrast, those who do not provide proof of vaccination or qualify for an exemption do not have the option of using the indoor portion with proof of a negative test; they are limited to briefly coming inside to do things like use the restroom or pick up food.)

City of Los Angeles government buildings are not subject to these specific exemptions. Instead, each department will accommodate medical and religious exemptions on a case-by-case basis (e.g., via remote service, outdoor service, or proof of a negative COVID-19 test).

Indoor Establishments Must Post Notice, Keep Records

Covered locations must post a notice advising patrons that proof of vaccination will be required to enter indoor areas. The notice must be posted “prominently” where patrons can see it before entering.

Covered locations also must develop and keep a written record describing their protocol for implementing and enforcing the ordinance’s requirements.

Large Outdoor Events: Proof of Vaccination or Negative Test

The ordinance includes slightly more relaxed rules for operators of outdoor events with between 5,000 and 9,999 attendees, if the event is ticketed or held in a defined space with controlled points of entry.

This category may include large private gatherings, theme parks, and marathons, among other events. Operators at these events must verify either proof of vaccination or proof of a negative COVID-19 test taken within 72 hours for each patron, before entry.

These same requirements already apply (as of October 7) to outdoor events that draw 10,000 people or more and indoor events with 1,000 or more people under an LA County Public Health Order. Operators of these events also must prominently place information on all communications, including reservation and ticketing systems, to ensure guests are aware that (1) they must wear a face mask while there and (2) all attendees, ages 12 and older, must either be fully vaccinated or test negative before attending. Operators for outdoor mega events also must make face masks available for all attendees.

Indoor and Outdoor: Acceptable Proof, ID Requirement

Acceptable proof of vaccination includes: (1) a vaccination card issued by the CDC (or a similar document issued by a foreign governmental agency) that includes the person’s name, type of vaccine, and date last dose was administered; or (2) a photo of such a card (both sides); or (3) documentation of vaccination from a licensed healthcare provider; or (4) a personal digital COVID-19 vaccine record issued by the State of California or similar documentation (available at myvaccinerecord.cdph.ca.gov).

Proof of a negative COVID-19 test result requires all of the following: (1) a printed document, email, or text message displayed on a phone, (2) from a test provider or lab (3) that shows results of a PCR or antigen COVID-19 test that either has emergency use authorization by the FDA or is operating per the Laboratory Developed Test requirements by the US Centers for Medicare and Medicaid Services, (d) that was conducted within 72 hours before the patron enters, and (e) that includes the person’s name, type of test performed, date of the test, and negative test result.

For any patron who appears 18 years of age or older, staff at indoor and outdoor venues must cross check the proof of vaccination or proof of negative COVID-19 test result against the patron’s photo ID (driver’s license, passport, or other government-issued ID card, but also a work or school ID card).

Venues and Persons Entirely Exempt

Neither the vaccine mandate nor testing applies to the following venues or persons:

  • Purely outdoor venues with fewer than 5,000 attendees.
  • A structure on the sidewalk or roadway if it is entirely open on the side facing the sidewalk.
  • An outdoor dining structure for individual parties, such as a plastic dome, if it has adequate ventilation to allow for air circulation.
  • Non-residents who are performing artists or professional athletes, and non-residents accompanying them as part of their regular employment. These individuals are only exempt from an establishment’s rules if they are entering for purposes of performing or competing.

Fines for Violating the Ordinance

An operator of an indoor establishment or outdoor event may be issued a citation for violating the ordinance and fined as follows:

  • First violation: warning and notice to correct.
  • Second violation: administrative fine of $1,000.
  • Third violation: administrative fine of $2,000.
  • Fourth and subsequent violations: administrative fine of $5,000.

Workplace Solutions

Covered businesses must rapidly adopt and adjust their COVID-19 vaccination verification procedures. Orders imposing vaccine mandates for employees 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 Liz Watson and Patrick Joyce

Seyfarth Synopsis:  On Monday, September 27, Governor Newsom signed a number of employment-related bills, including bills aimed at combatting wage theft and wage/hour violations by garment manufacturers, all of which go into effect on January 1, 2022. The Governor also vetoed two measures by Assembly member Lorena Gonzalez aimed at paid family leave and recall rights for hotel workers.

Going into the weekend, Governor Newsom had (mostly) signed (with a few vetoes) approximately 300 bills awaiting his approval. Very few of them, most notably AB 701 related to warehouse quotas which we previously blogged about here, were employment bills.

But, on Monday, the Governor signed a number of important measures relevant to employers: SB 62 (joint and several liability for brand guarantors and garment manufacturers), AB 1003 (wage theft = grand theft), AB 1033 (small employer mediation program / CFRA leave), SB 606 (workplace safety citations), and SB 639 (minimum wage for employees with disability), each discussed below. He signed some industry-specific bills as well, such as AB 73 (Cal/OSHA—agricultural workers wildfire smoke protections), and SB 646 (creating a limited exception from PAGA for specific janitorial employees performing work under a CBA).

On Tuesday, the Governor vetoed two bills authored by the chair of the appropriations committee, Lorena Gonzalez: AB 123 (increasing the formula for determining wage replacement) and AB 1074 (extending recall rights to hotel workers).

We still await the Governor’s action on the following employment-related bills: SB 331, AB 1084, and SB 255.

SB 62: Retailers Face Potential Liability for Wage/Hour Violations by Garment Manufacturer Contractors In The Supply Chain

Designated as a job killer by the California Chamber of Commerce, SB 62 will subject those sitting at the top of the supply chain—what the bill calls “Brand Guarantors” —to liability for the wage violations committed by their garment manufacturing vendors, even where the ultimate seller of the garment was completely unaware of the violation. In other words, as we previously blogged here, the bill will make clothing “brands” and holding companies—and even retailers—jointly liable with the contractors from whom they purchase t-shirts, hats, or even belts to sell for the contractor’s wage/hour violations, and perhaps even for violations by the contractor’s subcontractor.

According to the Governor’s signing announcement, SB 62 aims to “protect marginalized low-wage workers, many of whom are women of color and immigrants, ensuring they are paid what they are due and improving workplace conditions.” The California Chamber of Commerce disagrees, noting that “[n]othing in SB 62 will address the problem of underground bad actors in the garment industry evading the law”; SB 62 simply “allows those bad actors to continue operating as usual while passing the cost and liability to companies that have no control over the workers.” Time will tell if this measure will accomplish its intended goal. Regardless, employers should begin auditing their garment manufacturing vendors as soon as possible.

SB 606: Increasing Cal/OSHA’s Authority

As our OSHA team reported Tuesday morning, SB 606 will radically increase Cal/OSHA’s enforcement power. The bill expands this authority by establishing two additional categories of violations for which Cal/OSHA can issue citations: (1) “Enterprise-wide Violations” and (2) “Egregious Violations,” both of which are summarized in detail in the blog linked above.

The California Chamber of Commerce initially designated SB 606 a job killer, but removed the bill from the list after amendments removed a provision that would have created a rebuttable presumption of retaliation if an employer were to take 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.

AB 1003: Adding Intentional Wage Theft to … The Penal Code?

This soon-to-be-new-law is as daunting as it is straightforward: AB 1003 adds Section 487m to the Penal Code, making it the crime of grand theft to engage in intentional theft of wages, including gratuities, “in an amount greater than nine hundred fifty dollars ($950) from any one employee, or two thousand three hundred fifty dollars ($2,350) in the aggregate.” Grand theft is generally punishable either as a misdemeanor by imprisonment in a county jail for up to one year or as a felony by imprisonment in county jail for 16 months or two or three years.

AB 1033: Parents-in-Law Care CFRA Leave and DFEH Small Employer Mediation Program

AB 1033, co-sponsored by the California Chamber of Commerce, will add parents-in-law to the list of family members for which an employee can take leave under the California Family Rights Act (CFRA). This addition builds upon SB 1383 here, which expanded CFRA to require businesses with as few as five employees to provide 12 weeks of mandatory family leave per year. SB 1383 also expanded the categories of persons for whom an employee can take CFRA leave to care to include, grandparents and domestic partners. According to the Chamber of  Commerce, the inclusion of “parents-in-law” was inadvertently omitted from 1383, and its inclusion here, in AB 1033, is to fix this oversight.

AB 1033 will also require the Department of Fair Employment and Housing (DFEH) to notify an employee in writing of the requirement for mediation under the DFEH’s small employer mediation program prior to filing a civil action and would require an employee to contact the DFEH’s dispute resolution division to indicate whether they are requesting mediation, and make other related changes.

AB 1506: Newspaper Distributor and Carriers AB 5 Exemption Extension

AB 1506 will extend the AB 5 exemption for newspaper distributors working under contract with a newspaper publisher and newspaper carriers from January 1, 2022, to January 1, 2025, but will also require all newspaper publishers and distributors that hire or directly contract with newspaper carriers to submit specified information related to their workforce to the Labor and Workforce Development Agency (LWDA) on or before March 1 of 2022, 2023, and 2024.

SB 639: Minimum Wages for Persons with Disabilities

SB 639 will prohibit, starting January 1, 2022, the Industrial Welfare Commission from issuing special licenses that authorize the employment of a person with a disability for less than the minimum wage.

Enough is Enough, Says the Governor: AB 123 Would Unnecessarily Increase the Formula for Paid Family Leave.

AB 123 would have revised the formula for calculating certain leave benefits by requiring the weekly benefit amount be increased to equal to 65% or 75% of the highest wages paid to an individual. In his veto message, the Governor expressed his support for a robust paid leave program, but noted that his administration has already enacted a number of measures—SB 83 (increased duration of paid family leave), SB 1383 (CFRA expansion), AB 138 (increasing wage replacement)—aimed at increasing paid leave, making this legislation an unnecessary new expense. According to the bill’s author, however, the current formula for determining wage replacement is woefully deficient for low-income workers.

Enough is Enough, Says the Governor: AB 1074 Confers Recall Rights Already Conferred.

AB 1074 would have renamed the “Displaced Janitor Opportunity Act” the “Displaced Janitor And Hotel Worker Opportunity Act,” extending the right to recall provisions of the Act to hotel workers. The Governor vetoed the measure yesterday, explaining, as we summarized, that in the beginning of 2021, he already enacted SB 93, which provided robust recall rights for hotel workers displaced by the pandemic.

Workplace Solutions

Thankfully, none of the soon-to-be-new-laws has an urgency clause, so employers will a few months to prepare before the bills become effective on  January 1, 2022. Should you have a specific question about proactive measures to ensure compliance with any of the above new requirements, please feel free to reach out to your Seyfarth counsel.

Edited by Coby Turner

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