Seyfarth Synopsis: Following its June 3, 2021 meeting, when the Cal/OSHA Standards Board voted to approve Cal/OSHA’s controversial revisions to the COVID-19 Emergency Temporary Standard (ETS), the Board convened an emergency meeting on June 9, 2021, where it voted unanimously to pull back the revisions. On June 11, 2021, the Board released a proposed do-over —the third attempt at an ETS—to align with recent CDPH and CDC guidance, particularly as it relates to vaccinated individuals.

You Make Choices And You Don’t Look Back—Unless You’re Cal/OSHA

As we have previously recounted, the journey of the Cal/OSHA ETS has taken on the scope of an action movie with its constant twists and turns. Standing alone from other governmental agencies, the Cal/OSHA Standards Board voted to approve highly controversial revisions to the COVID-19 ETS on June 3, 2021, which clashed with CDC guidance, CDPH guidance, and widely publicized California state rules which became effective June 15, 2021 (California’s “reopening”), all of which eliminate capacity restrictions, social distancing and permit fully vaccinated individuals to stop wearing masks in most situations.

In response to the near universal backlash from the both the regulated community and affected employees, the Board noticed an emergency meeting for June 9, 2021, which ultimately lasted four and one-half hours, during which it was widely criticized for deviating from the guidance of every other public health authority. As a result, the Board voted unanimously to pull back the revised ETS, and sent the draft ETS back to Cal/OSHA for a re-write.

Cal/OSHA issued its revised version of the proposed ETS to more closely align with CDC and CDPH on face covering restrictions, and it has added other new requirements and obligations for employers.

Will There Be Another Sequel?

Assuming there are no further unanticipated actions by the Board—a big assumption given the path of the ETS so far—the Board is expected to vote on this forthcoming version at its June 17, 2021, meeting. Barring an Executive Order from the Governor or unanticipated actions by the Board, the relaxation of the November 2020 ETS requirements is expected to become effective on about June 28, 2021. There has been some chatter from the Governor’s office that this may happen, but we wouldn’t recommend leading off in the race just yet.

Until then, employers must continue to follow the current (“old”) version of the rules, which require all employees regardless of vaccination status to remain socially distanced and wear masks at nearly all times—even though on June 15, 2021, the vaccinated general public will not be required to wear masks in most situations.

In the meantime, employers can look down the road to the new ETS that is likely around the corner.

Life Is Simple With Some Of The New Proposed ETS Provisions

Cal/OSHA has apparently (finally) heard the masses and attempted to align the ETS closer to CDC, CDPH, and California state regulations in many respects.

For fully vaccinated employees:

  • As we previously predicted, the most recent revisions to the ETS would allow fully vaccinated employees in California to remove their face coverings, even in the company of unvaccinated individuals.
    • But note that in an outbreak setting, even fully vaccinated individuals must wear face coverings if indoors, or outdoors and not physically distanced, and any fully vaccinated individuals actually conducting COVID-19 screenings must also wear a face covering.
  • Fully vaccinated employees (or those who had COVID-19 in the past 90 days and have since recovered) who have close contact with a COVID-19 case would not need to be excluded from the workplace as long as they remain asymptomatic.
  • Employers would not need to provide testing to asymptomatic individuals who have been fully vaccinated (or those recovered from COVID-19 in the prior 90 days), even if those individuals are part of an exposed group in an outbreak setting.
    • However, employers must still provide testing at no cost in a “major outbreak” setting, regardless of vaccination or immunity status.

Those employees who have not provided documentation of their fully vaccinated status need to be treated as if they are unvaccinated for all purposes in the proposed ETS.

For those employees:

  • They still must wear a face covering when indoors or in vehicles with others.
  • Cal/OSHA still “recommends” that these individuals continue to wear a face covering outdoors if physical distancing cannot be maintained.
  • Employees with close contact to a COVID-19 case would be permitted to return to work within 10 days if they do not develop symptoms, and certain essential critical infrastructure employees would be permitted to return after seven days during critical staffing shortages.

For everyone:

  • The proposed ETS would completely remove requirements for physical distancing, except for in major outbreak settings.
  • Employers must provide free testing during paid working time to all close contacts of a COVID-19 case in the workplace except those who are fully vaccinated and asymptomatic, and individuals who have recovered from COVID-19 in the past 90 days and are asymptomatic.
  • For people who are close contacts of a COVID-19 case and have symptoms, regardless of vaccination status, they may be allowed to return to work earlier than previously allowed if they (1) have a negative PCR test taken after becoming symptomatic, (2) at least 10 days have passed since the last known close contact, and (3) they have been symptom-free for at least 24-hours without the use of medication.
  • Employers must provide face coverings at no cost to any employee upon request only, regardless of vaccination status.
  • The requirement to install cleanable solid partitions where physical distancing cannot be maintained has been eliminated in most circumstances—it remains a suggested potential safety measure in outbreak settings, and a required safety measure in major outbreak settings.

What Else Is Covered In The Sequel?

Now, when employers are determining vaccination status, the proposed revisions make it clear that the ETS would permit “fully vaccinated” status to include employees where the employer has documentation that the individual has received a vaccine that meets FDA approval or has emergency use authorization and, if they are vaccinated outside the United States, a vaccine approved for emergency use by the World Health Organization. This revision considerably simplifies compliance issues for companies with international workforces.

In addition, the proposed revisions make it clear that the ETS would not apply to employees who are teleworking from a location of the employee’s choice, which is not under the control of the employer. So if your employees are working at Toretto’s Market or a coffee shop on their laptops—if you give them the freedom to choose their work location, the proposed ETS would not apply to them.

The proposed revised ETS also clarifies that employers need only report COVID-19 cases to their local health department and no longer need to report to the Division.

And, in a significant change for employers who have had widespread outbreaks, the definition of the end of “major outbreak” status (and thus associated testing provisions) would be changed to no longer require zero COVID-19 cases for a 14-day period—employers would just need to drop to fewer than three cases in a 14-day period.

In Many Ways, Still A Buster

Despite making long sought after revisions, Cal/OSHA has missed the mark in other areas of the proposed revisions to the ETS, which remain considerable burdens on employers.

Documentation of Vaccination Status

For instance, as noted above, the proposed revisions would require employers to “document” the vaccination status of employees. The Board indicated at the emergency meeting that it would elaborate on what documentation would be required, but missed by a mile by not including the promised explanation in the proposed revisions.

As we have seen in Santa Clara County, employers there must collect at least self-certification of vaccination status on forms from employees. At this time, it appears unlikely that self-attestation regarding vaccination status will be acceptable under the ETS, meaning that some sort of documentation (although it is still not clear what) will be required.

Exclusion Pay Requirements

Employees who are excluded from work under the provisions in the proposed ETS are entitled to earnings and benefits continuation unless they are receiving disability payments, workers’ compensation payments, or temporary disability payments, or if the employer can prove the close contact is not work related.

But the pay requirements in this version of the proposed ETS have changed. Employees no longer need to be “able and available to work” to be entitled to exclusion pay. And, if the employer decides an exception to earnings continuation applies, the employer must inform the employee of the denial and the applicable exception.

Required Respiratory Protection

The newly proposed ETS still would include a controversial requirement that employers provide respiratory protection of a correct size for voluntary use to all unvaccinated employees—but the proposed requirement has been altered slightly so that respiratory protection now must be provided only upon employee request. This alteration addresses the concerns of many employers about being forced to stockpile respiratory protection unnecessarily, which could hamper the supply for first responders and during California’s upcoming wildfire season.

Employers must also encourage respiratory protection use amongst unvaccinated employees, and train any employees who request respiratory protection on how to properly wear the respiratory protection provided, how to perform a seal check, and on how facial hair may interfere with a seal.

Further, employers must provide respiratory protection for voluntary use to all employees in an exposed group, regardless of vaccination status, if the employer is in a “major outbreak” status, i.e., having 20 or more employee COVID-19 cases in an exposed group during a 30-day period.

Face Coverings

Permissible face coverings under the proposed ETS would include only a surgical mask, a medical procedure mask, a respirator worn voluntarily, or a fabric material mask of at least two layers of material. This means many of the normal fabric masks employees have been using will no longer be permissible.

Employers also must “ensure” that the face coverings are worn over the nose and mouth by unvaccinated individuals.

Testing

Employers would be required to make COVID-19 testing available at no cost to employees with COVID-19 symptoms who are not fully vaccinated, during the employees’ paid time—this is regardless of whether there was any potential work-related exposure to COVID-19.

Employer Provided Transportation

The proposed ETS expands the restrictions in employer-provided transportation to cover a much broader array of workplace settings. While it previously applied only in situations traveling to and from work, the proposed ETS now covers employer-provided transportation to and from different jobsites, delivery sites, buildings, stores, facilities, or fields.

Employers now must, to the extent feasible, assign employees with shared vehicles to distinct groups and keep those groups separate.

The saving grace is that this expanded section does not apply where all employees are fully vaccinated.

Notification and Training Requirements

All employees exposed to a COVID-19 case in the workplace must be notified in writing of potential exposure, in a form readily understandable by the employees. This notice may be by personal service, email, or text message, and if the employer knows the employee has limited literacy, then the employer may give oral notice in a language understandable by the employee.

Employee training requirements must include information on:

    • legally mandated sick and vaccination leave, if applicable,
    • the employer’s policies for providing respirators and how to properly use them,
    • the fact that COVID-19 is an airborne disease and N95s and more protective respirators protect the users from airborne disease while face coverings primarily protect people around the user,
    • how to access COVID-19 testing and vaccination, and the fact that vaccination is effective at preventing COVID-19 transmission, serious illness, and death,
    • the conditions under which face coverings must be worn at the workplace, and that they are recommended outdoors for people who are not fully vaccinated if physical distancing cannot be maintained, and
    • employees’ rights to request free face coverings and wear face coverings at work, regardless of vaccination status, without retaliation.

Workplace Solutions

As always, don’t jump the starting line as developments on the workplace safety front in California continue to occur fast and furious. With new requirements continually being issued, please don’t hesitate to reach out to one of the authors of this post or a member of our Workplace Safety team with any questions.

Seyfarth Synopsis: Less than a week after the Cal/OSHA Standards Board voted to approve Cal/OSHA’s controversial revisions to the COVID-19 Emergency Temporary Standard (ETS), it convened an emergency meeting on June 9, 2021, after which it voted unanimously to pull back the revision. The Board will now send the ETS back for another do-over, to align a new revision with the CDPH and CDC guidance, particularly as it relates to vaccinated individuals.

Background

The story of the Cal/OSHA ETS becomes more convoluted by the day. Those of you following from home will recall that one week ago, on June 3, 2021, the Cal/OSHA Standards Board voted to approve a highly controversial revision to the COVID-19 ETS.

But that approved revision did not align with existing CDC guidance, or the recently updated CDPH guidance and California state rules slated to become effective June 15, 2021 (California’s “reopening”), which will permit fully vaccinated individuals to stop wearing masks in most situations. Let’s just say the regulated community was not pleased with the Board’s revision.

Fast forward to June 8, 2021, when the Board noticed an emergency meeting to be held on June 9, 2021. That meeting, attended by representatives of  widely ranging interests—employers, employees, industry groups, organized labor groups, healthcare professionals, and members of the public at large—lasted 4.5 hours. Virtually every comment criticized the Board for deviating from the guidance of public health authorities.

At the end of the meeting, the Board voted unanimously to pull back the revised ETS, which would have gone into effect on or about June 13, 2021, and sent the ETS back for re-write. We expect yet another revision in the coming days—one aligning more closely the with CDC and CDPH. The Board is expected to vote on this forthcoming version at its June 17, 2021 meeting. If approved, the revision would go into effect around June 28, 2021.

What Does This Mean?

For now, employers must continue to follow the current (“old”) version of the November 2020 ETS, which requires all employees regardless of vaccination status to remain socially distanced and wear masks at nearly all times. We previously blogged about the detailed requirements of the ETS here.

In the near future, sometime after the June 17, 2021 meeting (with the caveat that one can really never know with Cal/OSHA), we expect that fully vaccinated employees in California will not need to wear a mask or socially distance, even if in the company of unvaccinated individuals. This relaxation of the current requirements is expected to become effective on about June 28, 2021.

Other provisions of Cal/OSHA’s controversial revised ETS, however, are expected to stick. One is the requirement that employers provide respiratory protection for voluntary use to all unvaccinated employees.

Keep in mind that the California “reopening” remains on target for June 15, 2021. This means that, unless Cal/OSHA announces it will be exercising enforcement discretion, all employees will still need to be in masks and distanced until the new revision becomes effective, even though the vaccinated general public won’t be required to wear them.

What Else Should I Know?

At the June 9 meeting, the Board indicated that Cal/OSHA should clarify the documentation requirement around vaccination status as proposed in the most recent revised ETS. At this time, it appears unlikely that self-attestation regarding vaccination status will be acceptable, meaning that some sort of documentation (although it is not clear what) will be required.

Workplace Solutions

Stay tuned for the rapid fire developments on the workplace safety front in California. If you are facing difficult questions from your employees in this space that you need help answering, please don’t hesitate to reach out to one of the authors of this post or a member of our Workplace Safety team.

Seyfarth Synopsis: On June 3, 2021, the California Occupational Safety & Health Standards Board (OSHSB) voted late in the evening to approve Cal/OSHA’s proposed revised Emergency Temporary Standard (ETS). The revised ETS fails to align with the relaxed measures recommended by the CDC and the Governor’s plans to end virtually all mask and social distancing requirements for vaccinated individuals on June 15, 2021.

Background

As we previously blogged, last month Cal/OSHA published proposed revisions to its ETS. In a nutshell, the proposed revisions relaxed some of the more burdensome aspects of the ETS in light of the improving state of the pandemic. However, at its May 20, 2021, meeting, the OSHSB voted to delay the vote on the proposed revisions to the ETS so that Cal/OSHA could assess whether additional changes were warranted in light of the CDC’s May 13, 2021, updated guidance. That guidance, grounded in overwhelming scientific evidence, allows fully vaccinated individuals to forego masks and social distancing in most situations. On May 20, 2021, California announced that it would implement the CDC’s guidance on June 15, 2021, in a grand “reopening.”

Even the most cynical observers imagined that Cal/OSHA would more closely align the ETS with the CDC and the State’s public health authorities. But no—Cal/OSHA published its updated proposed revisions on May 28, 2021, and left the regulated community reeling. Some of the revisions were even more stringent than Cal/OSHA’s previous version. You can read more in our May 29, 2021, blog.

What Just Happened?

June 3, 2021, was the OSHSB’s meeting to consider and vote upon Cal/OSHA’s updated revised ETS. The meeting was a marathon, starting at 10 am and lasting until nearly 8 pm. Countless commenters urged Cal/OSHA to reconsider its revisions, which lag behind the latest science and impose tremendous costs and other unworkable burdens, with little public health benefit. However, many employee groups urged the opposite—wanting the existing ETS to stay in place or arguing for even more stringent safety provisions.

For a moment, there was hope for California employers. Some members of the OSHSB were initially hesitant to pass the revised ETS, and the Board voted 4-to-3 to reject it (although members, like the public commenters, were split on whether they wanted the standards to be relaxed or strengthened). But then a sad truth quickly became apparent: if the revised ETS were not approved, then the regulated community would be stuck for many months to come with the current ETS that was implemented last November. The OSHSB then unanimously voted to reconsider, and it approved the revised ETS because, to sum up the rationale, “it’s not as terrible as the existing one.”

In passing the revised ETS, the OSHSB simultaneously voted to establish a subcommittee to work directly with Cal/OSHA to quickly draft a third version of the ETS, with the hope of presenting it as soon as the July meeting. The OSHSB also stated that Cal/OSHA may further refine the regulations in the coming weeks to take into account “the availability of vaccines and low case rates across the state.” Similarly, Cal/OSHA stated that it would be issuing FAQs prior to the enactment of the new ETS to address some of the myriad questions posed by the public during the meeting.

What Does This Mean?

The amended ETS will be submitted to the Office of Administrative Law (“OAL”), which will have 10 calendar days to approve. There’s little reason to believe that the OAL will not approve, so the revisions will likely go into effect around the same time as the State’s June 15, 2021 “reopening.”

Upon OAL approval, employers will be able to relax some of the measures required under the current ETS. But employers will still be stuck under the regulatory eye of an agency that isn’t ready to let California employers and employees fully keep pace with the rest of the country (or even the rest of the state outside of the workplace setting).

Some of the most notable requirements under the newly passed ETS are:

  • Masks are still required, even for fully vaccinated employees, unless all persons in a “room” are fully vaccinated and do not have COVID-19 symptoms. Ironically, the revised ETS also requires employers to inform employees of “the fact that vaccination is effective at preventing COVID-19, protecting against both transmission and serious illness or death.”
  • When the revised standards take effect, employers can eliminate physical distancing and partitions or barriers for employees working indoors and at outdoor mega events, but only if they provide respirators, such as N95s, to unvaccinated employees for voluntary use.
    • After July 31, physical distancing and barriers are no longer required (except during outbreaks), but employers must provide all unvaccinated employees with respirators for voluntary use.
    • Note that Cal/OSHA said during the comments period that employers could choose what type of respirator to offer, so N95s are not specified.
  • Immediately upon the revised ETS becoming effective, employers must offer free COVID-19 testing to unvaccinated symptomatic workers during paid working time, even if there is no indication that the exposure was work related.
  • Fully vaccinated workers who test positive for COVID-19 still must be excluded from work for 10 days after the positive test, even if they are asymptomatic.
  • After July 31, 2021, employers must provide respirators to all employees who are not fully vaccinated for voluntary use. This requirement is for the safety of unvaccinated employees.
    • Employees do not need to be fit tested for the respirators, which would be required if they were mandatory and not voluntary.
    • When the need for fit testing was raised during the meeting, Cal/OSHA said the requirement is based on “advanced filtration properties” of respirators, even without a proper fit, and likened this to the Wildfire Smoke Safety Standard.
    • Cal/OSHA also said that the July 31 timeline is so that “more people have a chance to get vaccinated” before some of the big protective measures sunset.
  • Cleanable solid partitions must be maintained until July 31, 2021, for all employees working indoors or at outdoor mega events unless the employer provides all non-vaccinated employee with respirators for voluntary use.
    • Note that cleanable solid partitions continued to be required during an outbreak setting, so many employers are choosing to leave them in place rather than potentially have to reinstall them.
  • Employers must notify employees of the benefits of the COVID-19 vaccine, including its  effectiveness in preventing serious illness or death, as well as inform employees about testing accessibility and proper respirator use.
  • The definition of a sufficient face covering includes only a medical, surgical, or two-fabric layer mask, or respirator. This means that many of the decorative or stylish cloth masks that employees may have personally purchased will no longer meet the safety standard.

Beneficial employer provisions include:

  • Fully vaccinated or naturally immune workers do not need to be excluded from work after a close contact so long as they remain symptom-free.
  • Employers can provide employees who are not fully vaccinated with respirators for “voluntary use” to avoid having to enforce six-feet physical distancing for those individuals.
  • Employees wearing a respirator under a Cal/OSHA-compliant respiratory protection program are exempt from individuals identified under the definition of a “close contact.”
  • Employers do not need to offer COVID-19 testing to workplace close contacts if the potentially exposed employees are fully vaccinated or have natural immunity (previously infected within the prior 90 days), and they remain asymptomatic.
  • “Outbreak testing” is no longer required when the local public health department identifies the workplace as the location of an outbreak.
  • Now only COVID-19 positive employees count towards the number of individuals necessary to trigger an outbreak in a particular exposed group, rather than the prior broader definition that arguably could have included visitors, vendors, and other third parties.

How Do Employers Verify Vaccination Status?

The new ETS does not require blanket vaccine-verification of employees or third parties, along the lines of the onerous requirements we have seen in Oregon and Santa Clara.

But to be “fully vaccinated” under the ETS “means the employer has documentation showing that the person received, at least 14 days prior” either to the second dose of a two-dose regimen, or to a single dose of an FDA-approved or emergency authorized vaccine. This is also a departure from the CDC definition of “fully vaccinated,” which includes World Health Organization approved or emergency authorized vaccines. So, if you have employees coming in from abroad that have received the AstraZeneca or Sinopharm vaccines, they technically do not meet the qualifications under the proposed ETS and would have to be treated as if they were unvaccinated.

While Cal/OSHA did not specify in the revised ETS what sufficient “documentation” would mean, discussions with the Division during the meeting centered around the idea of the employer viewing or taking copies of vaccination cards (as opposed to the “honor system” or employee attestation). Expect this to be addressed in upcoming FAQs.

What Else Do I Need to Know?

Remember that Cal/OSHA continues to update its interpretive guidance on the ETS via its Frequently Asked Questions page. During the June third meeting, Cal/OSHA indicated that it would be issuing guidance on some of the provisions of the new ETS.

Most notably, Cal/OSHA said a future FAQ would address permitting public-facing employees to go maskless if all of their co-workers were vaccinated, despite the unknown vaccination status of the maskless public entering the workplace, a subject of much contention and confusion during the meeting. Indeed, one OSHSB member, a college professor, expressed skepticism of this dictate given the “mixed company” of her own students.

Workplace Solutions

Remember to check in with your Seyfarth counselors regularly, as this is a rapidly developing area of law. If you need any assistance with your workplace safety planning, or have questions about requirements related to testing, quarantine, or how to pay workers that are out sick with COVID-19, please feel free to reach out to the authors of this post. Seyfarth can also assist with compliance counseling if you are considering implementing mandatory vaccination programs or creating incentives for your employees to be vaccinated.

Seyfarth Synopsis: The California Occupational Safety & Health Standards Board (OSHSB) was supposed to consider changes to the COVID-19 Emergency Temporary Standard (ETS) on May 20, 2021. But after the CDC published a May 13, 2021 guidance saying that fully vaccinated individuals could resume pre-pandemic activities without masks, Cal/OSHA asked the OSHSB to delay its consideration of the proposed ETS revisions until Cal/OSHA could “revisit the proposed COVID-19 prevention emergency regulation in light of this new guidance.” Cal/OSHA has now published its new draft regulations, which appear to be more strict than the prior proposal. The OSHSB will consider the new proposal at its June 3, 2021, meeting.

Background

In the fast-paced and ever-changing environment of COVID-19 regulation, the story of Cal/OSHA’s ETS is becoming more and more convoluted. If you read our May 12, 2021, blog, you know that earlier this month Cal/OSHA published proposed revisions to its ETS. The proposed revisions were a significant move in the right direction, relaxing some of the more burdensome aspects of the ETS in light of the improving state of the pandemic. The OSHSB was scheduled to consider and vote upon the proposed revisions at its May 20, 2021 meeting.

But then, on the eve of the meeting, Cal/OSHA submitted a memorandum to the OSHSB asking that consideration of the proposed revisions be deferred. Cal/OSHA cited the CDC’s May 13, 2021 guidance allowing fully vaccinated individuals to forego masks in most situations, as well as the May 20, 2021 California Health & Human Services announcement that California plans to implement the updated CDC guidance starting June 15, 2021. The memorandum explained, “The Division is thus requesting that the Board not vote to approve the current proposal before it, and instead allow us to present a new proposal at a future meeting. The Division will limit any potential changes to consideration of the recent guidance, in order to make possible a targeted effective date of June 15, 2021.”

The new proposal has now been published (and here is a redline to the prior proposed changes), and the OSHSB is scheduled to consider it, and vote, at the upcoming June 3, 2021 meeting.

What Has Changed from the May 20 Proposal?

The revised proposal misses many of the most sought-after updates related to mask usage, and in fact appears stricter on many measures than the last proposal, despite relaxed measures recommended by the CDC. Changes from the earlier proposal include:

  • Employers cannot immediately eliminate physical distancing requirements for fully vaccinated worksites—they must keep these measures in place until at least July 31, 2021.
  • Employers would be immediately required to offer free COVID-19 testing to unvaccinated symptomatic workers during paid working time, even if there is no indication that the exposure was work related (the previous iteration did not start this requirement until July 31, 2021).
  • Fully vaccinated workers who test positive for COVID-19 would still have to be excluded from work for 10 days after the positive test, even if they are asymptomatic.
  • After July 31, 2021, employers would have to provide respirators to all employees who are not fully vaccinated for voluntary use.
  • Employers would not be able to eliminate cleanable solid partitions in fully vaccinated worksites.

The revisions also include provisions aimed at maintaining mitigation measures for employees at “outdoor mega events,” which is an outdoor event with over 10,000 participants or spectators. Finally, OSHSB added a provision requiring employers to notify employee of the benefits of the COVID-19 vaccine, including that the vaccine has been effective at preventing serious illness or death (in addition to the information required in the prior proposal related to testing accessibility and proper respirator use).

The revisions do not require blanket vaccine-verification, of employees or third parties, along the lines of the onerous requirements we have seen in Oregon and Santa Clara, as many employers thought may be included.

But to be “fully vaccinated” for purposes of the limited changes in the new proposed ETS, it “means the employer has documentation showing that the person received, at least 14 days prior” either the second dose of a two-dose regimen, or a single dose of an FDA approved or emergency authorized vaccine. This is also a departure from the CDC definition of “fully vaccinated,” which includes World Health Organization approved or emergency authorized vaccines. So, if you have employees coming in from abroad that have received the AstraZeneca or Sinopharm vaccines, they technically do not meet the qualifications under the proposed ETS and would have to be treated as if they were unvaccinated.

What’s The Same?

Unfortunately, OSHSB appears to have missed its biggest opportunity to align with CDC’s May 13 guidance: employees who are fully vaccinated still must wear face coverings while indoors and in mixed company with employees who are not fully vaccinated. This restriction is contrary to CDC’s May 13 guidance.

But various items from the prior proposed version of the ETS remain in place, including:

  • Fully vaccinated or naturally immune workers would not need to be excluded from work after a close contact so long as they remain symptom-free.
  • Employers still can provide employees who are not fully vaccinated with respirators for “voluntary use” to avoid having to enforce six-feet physical distancing for those individuals.
  • Employers would no longer need to offer COVID-19 testing to workplace close contacts if the potentially exposed employees were fully vaccinated or had natural immunity (previously infected within the prior 90 days).
  • The definition of a sufficient face covering would include only a medical, surgical, or two-fabric layer mask, or respirator—meaning many of the fancy masks that employees may have personally purchased will no longer meet the safety standard.
  • “Outbreak testing” would no longer be required when the local public health department identifies the workplace as the location of an outbreak—which could eliminate the challenge many employers have faced with inconsistency in how local public health departments identify outbreaks.
  • Individuals wearing a respirator under a Cal/OSHA-compliant respiratory protection program would be exempt from individuals identified under the definition of a “close contact.”
  • Notifications related to close contacts or outbreaks would be required to be given in a language the employee understands, and verbal notice would be permissible.

What Else Do I Need to Know?

Remember that Cal/OSHA continues to update its interpretive guidance on the ETS via its Frequently Asked Questions page.

The full text of the proposed revision to the ETS can be found here and a comparison with the May 20 proposal can be found here. It’s likely the Standard Board will vote on June 3, 2021. It’s anticipated that the revised ETS would become effective on or around June 15, 2021, to align with the State’s “re-opening.”

Workplace Solutions

Remember to check in with your Seyfarth counselors regularly, as this is a rapidly developing area of law. If you need any assistance with your workplace safety planning, or have questions about requirements related to testing, quarantine, or how to pay workers that are out sick with COVID-19, please feel free to reach out to the authors of this post. Seyfarth can also assist with compliance counseling if you are considering implementing mandatory vaccination programs or creating incentives for your employees to be vaccinated.

Seyfarth Synopsis: Santa Clara recently issued an order that requires employers to ascertain and document their workers’ vaccination status by June 1, 2021. This directive has left businesses confused and concerned, with little time to comply. Below is an overview of what employers must do, by when they must do it, and the penalty for noncompliance.

On May 18, 2021, Santa Clara County moved into California’s coveted yellow tier, allowing more businesses to open and others to increase capacity. That same day, the County issued an update to its COVID-19 Health Order. One portion of the order caught the eyes of employers, and it was not love at first sight: By June 1st, all businesses within the County must determine whether their employees, contractors, and volunteers have been vaccinated. Failure to ask and record the responses can carry a dizzying fine of up to $5,000 per violation per day.

To Have and To Hold: Employer Obligations Under the Order

In addition to ascertaining the vaccination status of “all personnel,” businesses and governmental entities “must obtain updated vaccination status for all personnel who were not fully vaccinated every 14 days” and maintain appropriate records to show compliance. This mandate means that Santa Clara County businesses must, every two weeks for the foreseeable future, ask their previously unvaccinated workers if they have now been fully vaccinated.

The order does not require that anyone get vaccinated.  Rather, the order simply requires businesses to seek and record vaccination status. So a business incurs no penalty if employees, contractors, or volunteers refuse or fail to answer, so long as the business records the declination to respond, and then treats these people as if they are unvaccinated.

A business may comply with the order by requiring workers to fill out a short self-certification on a County-provided form. This method may be easier and more private than requiring a copy of the individual’s CDC-issued vaccination card, although that method will also suffice. Any records of vaccination status should be maintained as confidential medical records.

Absence Makes The Heart Grow Fonder, and the Legal Obligations Fewer

Despite the order’s requirement to ascertain the vaccination status of “all personnel,” the FAQs clarify that the provision applies only to “workers who perform any work at a facility or worksite in the county. That said, businesses, though not required, are “strongly encouraged … to determine vaccination status for all other personnel.” With the imminent reopening of California’s economy and a continued return to the workplace, it may make sense for businesses in Santa Clara County to ask remote workers their vaccination status, or to have a plan in place for determining their status before they enter business premises.

Workplace Solutions

The Santa Clara order stands in contrast to legislation that has been proposed outside of California to restrict a business’s ability to ask about individuals’ vaccination status. This order underscores the difficulty (if not impossibility) of a one-size-fits all approach to COVID-19 related plans—even within California. If you have questions about adhering to State and local restrictions, please know that Seyfarth’s Employment Team is here to help.

Edited by Coby Turner

Seyfarth Synopsis: On May 21, 2021, California health officials confirmed that the State’s highly anticipated June 15 reopening date is a go. With this announcement comes the long-awaited release of details about exactly what restrictions are poised to be lifted—which looks to be just about everything, at least on a State level. (Local restrictions may yet apply.)

Ditching the Blueprint And Aligning with the CDC

The past few weeks have seen most states lift many remaining COVID-19 restrictions. Meanwhile, California residents awaited the moment when the State would provide details regarding its anticipated June 15 economic reopening.

That moment finally came on May 21, 2021, when California health officials announced the reopening was on track and will bring drastic changes to restrictions.

The biggest change is the retirement of the State’s Blueprint for a Safer Economy framework and removal of capacity limits and physical distancing requirements, regardless of setting. This means businesses across all sectors will be permitted to open at full capacity, if they so choose.

Other changes include full alignment with the CDC’s guidance regarding face coverings (which differ for vaccinated and unvaccinated individuals) and lifting all restrictions on travel outside the state (with a note that any future travel restrictions will also be in alignment with the CDC).

Additionally, California will not require proof of vaccination or a negative COVID-19 test to engage in any activities, though individual businesses may still choose to do so (and some counties have imposed vaccine-status related requirements). Nonetheless, the State plans to keep recommendations for such verifications in place for “mega events” (outdoor events with 10,000+ people and or indoor events with 5,000+ people).

Location Is Still Everything

California’s plans to reopen its economy will almost certainly mean a significant portion of the State will follow suit. However, it is important to remember that individual counties and cities can still impose their own stricter precautions, and businesses  generally must follow whatever is the strictest set of applicable guidelines.

Some counties have already announced their plans to align with the State’s updated reopening plans and guidance, but some have not yet addressed the issue, indicating that they may opt for a more gradual approach to lifting local restrictions. Businesses operating in counties that still have higher infection levels will want to watch closely for any tighter restrictions that may remain in place, particularly around those requiring or encouraging continued remote work where possible.

What About Cal/OSHA’s Emergency Temporary Standard (ETS)?

As previously reported, Cal/OSHA proposed revisions to its ETS on May 7, 2021. In the wake of the CDC’s May 13, 2021 updated mask guidance, Cal/OSHA held off on making proposed changes at its May 20, 2021 meeting. Cal/OSHA is now preparing new proposed revisions to the ETS, and intends to make an updated proposal available for review by May 28, 2021. We expect that any new requirements may more closely align with the CDC’s mask guidance, and will be issued by the slated June 15, 2021 reopening date.

Meanwhile, employers must still comply with any restrictions mandated by Cal/OSHA, and must continue to abide by the November 2020 ETS (and associated guidance) until further binding guidance is issued.

Workplace Solutions

There are still many moving pieces and uncertainties as California moves towards its plan to reopen next month. If you need any assistance with your workplace safety planning, or have questions about requirements related to reopening or expanding operations in adherence with State and local restrictions, Seyfarth’s Workplace Solutions is here to help with these and other COVID-19 related questions.

Edited by Coby Turner

Seyfarth Synopsis: Proposed California legislation, SB 62, would hold certain garment retailers known as “brand guarantors” (i.e. those that license their brand or name for manufacturing) responsible for labor violations occurring down the supply chain. We discuss the proposed bill’s provisions below, and its implications for companies operating in this area.

“Abe Lincoln wanted to abolish slavery, right? Well, who do you think made the silk stockings and powdered wigs worn by our early leaders? Mugatu!” (Derek Zoolander and J.P. Prewitt in Zoolander)

The early 2000s spawned various sardonic comedic narratives focused on specific industries. So it was with Anchorman (the news industry), Wedding Crashers (the hospitality industry), and Elf (the Christmas industry). Zoolander—a cult classic in that genre—was another comedic romp, but one that also publicized the tragic issues that sometimes exist in supply chains producing high fashion garments. Indeed, the film’s entire “plot” surrounds a secret cabal of fashion insiders intent on preventing the Prime Minister of Malaysia from enacting legislation that would outlaw forced labor that the fashion industry, and Mugatu in particular, relied on to produce its garments. And, while the movie itself is fiction, some of the issues it raised are very real indeed.

Curbing labor violations in the garment industry, like those highlighted in Zoolander, has been a regular subject of legislative reform in California. Senator Elena Durazo recently re-introduced legislation, SB 62, intended to prevent wage theft within the various layers of garment manufacturing by expanding the definitions of “brand guarantor” and “garment manufacturing,” and making each layer in the process jointly and severally liable for wage violations of employees elsewhere in the supply chain. This bill is an almost precise replica of SB 1399, which rode to the precipice of enactment last year, but failed to pass due to time limitations.

SB 62 would provide that those sitting at the top of the supply chain could be on the hook for the wage violations of garment manufacturing vendors, even where the ultimate seller was completely unaware of the violation. So, if this bill passes, big retail must choose vendors wisely.

So Hot Right Now—Reported Wage Violations In the Garment Industry

According to legislative findings, “[s]o-called retailers contract with a network of manufacturers and contractors to produce their garments and dictate the pricing structure that causes wage violations. This leads to a vicious price competition, resulting in garment workers being paid an average of $5.15 per hour, well below minimum wage.”

The bill intends to address this sub-minimum wage problem by imposing liability on retailers contracting to have garments made, for unpaid minimum wage and overtime pay to the workers who manufacture those garments, regardless of how many layers of contracting involved. The bill notes that it is the “intent of the Legislature to restore the purpose of AB 633, “which sought to ensure that persons who contracted to have garments manufactured were liable as guarantors for unpaid wages by establishing a process through which garment workers could file claims against the contractor who hired them.”

They’re *In* The Supply Chain— SB 62 Would Hold Each Entity Responsible

To address this problem, SB 62 seeks to clarify that persons or entities contracting to have garments made are liable for unpaid wages, damages, penalties, and other compensation owed to the workers who manufacture those garments regardless of how many layers of contracting are used.  In other words, the bill would make clothing “brands” and holding companies jointly liable as wage guarantors alongside garment manufacturer contractors for all civil legal responsibility for all workers employed by the contractor. This, according to the Legislature, would prevent the retail industry from end-running AB 633 by subcontracting layer upon layer to produce garments, then proclaiming ignorance of any wage violation.

This would mean, for instance, if Joe’s Retail Clothing contracted with Manufacturer X, who subcontracted with Manufacturer Y, who had Company Z sew labels onto the manufactured clothing—Joe’s Retail Clothing, Manufacturer X, and Manufacturer Y may all have independent liability to cover the unpaid or underpaid wages of Company Z’s employees if Company Z doesn’t pay them properly.

I Feel Like I’m Taking Crazy Pills With This Upstream Liability For Wage Violations

SB 62 provides that a retailer who contracts with another person or entity to perform garment manufacturing operations will be jointly and severally liable with any entity that performs those operations, no matter how far down the manufacturing chain that entity may be. This means that the retailer who sells the final garment could therefore be found liable for wage violations of a subcontractor even where the ultimate vendor did not even know that subcontractor was part of the supply chain. While Section 2673.1(a)(2) would maintain any entity’s right to seek indemnity and contribution from those found jointly and severally liable, litigation on something like this can be expensive and possibly fruitless if companies in the chain can’t pay.

To include all entities involved in the production of a garment into one liability stream, SB 62 expands the definition of “brand guarantor” —typically your larger retail stores—to include any entity that, before selling a garment, contracts for its assembly, “including sewing, cutting, making, processing, repairing, finishing, assembling, dyeing, altering a garment’s design, causing another person to alter a garment’s design, affixing a label on a garment, or otherwise preparing any garment or any article of wearing apparel or accessories designed or intended to be worn by any individual.”

In addition to opening up certain avenues of liability, SB 62 would also give the Labor Commissioner’s Bureau of Field Enforcement the right to actively and explicitly “investigate and cite brand guarantors,” keeping corporate actors from self-regulating.

“I’m Not an Ambi-turner. I Can’t Turn Left”: SB 62 Would Eliminate Piece Rate Compensation

Derek Zoolander’s inability to turn left likely resulted in a dangerous catwalk, or workplace. Similarly, the author of SB 62 was concerned with unsafe working conditions that may result from paying per garment completed, otherwise known as piece-rate compensation, since garment workers may attempt to work as quickly as possible to complete as many items as possible (and thus earn more money) in a workday.

To alleviate this potential problem, SB 62 would eliminate “piece rate” work in California’s garment manufacturing industry entirely, and would prohibit garment manufacturers in the state from choosing to pay their workers a set rate per piece or article of clothing produced. The measure provides a penalty of $200 for each pay period in which the employee is paid by the piece.

“What Is This? A Center for Ants?”: A More Efficient Process For Filing Wage Claims

Section 2673.1(c)(1)-(5) lays out a detailed procedure for garment workers filing Labor Commissioner claims for unpaid wages, if the bill passes. The bill lays out the timing of the presentation of evidence as well as what remedies may be available.

What Say We Settle This On The Runway—No Private Right of Action

California employers should breathe one sigh of relief: the bill would not create a private right of action: “Employees may enforce this section solely by filing a claim with the Labor Commissioner against the contractor, the manufacturer, and the brand guarantor … .”

Blue Steel Yourself For These Potential Changes Now

With this legislation pending for a second time, companies, and particularly companies in the retail industry, should immediately begin auditing their vendors to ensure compliance with all California wage and hour laws, regulations, and wage orders.

Companies selecting vendors thus might consider measures such as these: (1) checking for membership in the Fair Labor Association, (2) third-party audit certifications, (3) posting of bonds, (4) enhanced financial strength screening, and (5) review of any prior wage violations.

Workplace Solutions

Employers should brace for this measure—which was nearly enacted last year—crossing the finish line this legislative session. Your Seyfarth counselors are here to help you with negotiating contracts, checking your supply chain, and looking at labor and employment compliance as needed in your supply chain both domestically and globally.

Edited by Coby Turner

Seyfarth Synopsis: On May 20, 2021, the California Occupational Safety & Health Standards Board (OSHSB) will consider changes to the COVID-19 Emergency Temporary Standard (ETS) Rules, and it just posted the changes it will consider. These potential changes are broad-ranging and affect employers’ requirements related to masking, social distancing, testing, exclusion, and more, especially with respect to vaccinated and unvaccinated employees.

Background

Last November, Cal/OSHA’s ETS went into effect. Now, amidst significant improvements to the state of the COVID-19 pandemic and increased scientific knowledge, the risk-benefit aspect of the current ETS has made compliance particularly burdensome and at times nonsensical, as subtly noted by California’s Governor and repeatedly adjusted in FAQs. Thankfully, however, Cal/OSHA has now published its proposed revisions to the ETS, which the OSHSB will consider at its May 20, 2021 meeting.

The proposed revisions are in many instances a significant move in the right direction, and would offer some much-needed relief to employers in certain areas. But of course, it wouldn’t be Cal/OSHA without at least some confusion and issues of practicality.

What Are The Most Notable Revisions?

  • Exemptions: Creating broad exemptions for workers who have been fully vaccinated with an FDA- approved or emergency use authorized (EUA) vaccine, and/or workers who have tested positive for COVID-19 within the past 90 days (i.e. naturally immunized workers).
    • Fully vaccinated or naturally immune workers would not need to be excluded from work after a close contact so long as they remain symptom-free.
    • Individuals who are actual COVID-19 cases, but were fully vaccinated before they become COVID-cases would not need to be excluded, so long as they remain symptom free and local public health rules permit them to remain at work.
    • Fully vaccinated workers would be exempt from masking if everyone in the same room is fully vaccinated and asymptomatic, or if the fully vaccinated employees are working outside and asymptomatic.
    • Other exemptions, related to physical distancing, testing, and engineering controls specific to fully vaccinated persons and/or naturally immunized individuals are noted below in more detail.
  • Physical Distancing Requirement Changes
    • A July 31, 2021, sunset of the physical distancing requirements.
    • An immediate modification of the physical distancing requirement to require six feet of separation unless it is infeasible (as opposed to the current standard of impossible).
    • The physical distancing requirement would not apply to employees wearing respirators under a respiratory protection program, and locations where all employees are fully vaccinated (Note that if any employees in a location require a reasonable accommodation or exception to vaccination based under other legal protections, such as FEHA or the ADA, then the exemption from social distancing can still apply, but the employer must provide respirators for voluntary use to the unvaccinated workers, and test those employees for COVID-19 at least once per week during paid time and at no cost to the employees).
  • Employer Provided Testing: Requiring that employers make COVID-19 testing available at no cost during paid time to employees with COVID-19 symptoms who are not fully vaccinated, as of July 31, 2021.
    • The provision of testing requirement would apply regardless of whether the unvaccinated worker had close contact with a COVID-19 case.
    • On the flip side, employers would no longer need to offer COVID-19 testing to workplace close contacts if the potentially exposed employees were fully vaccinated or had natural immunity (previously infected within the prior 90 days).
  • Face Coverings: Refining the definition of “face covering” to exclude “a scarf, ski mask, balaclava, bandana, turtleneck, collar, or single layer of fabric,” and specifying it must be a medical, surgical, or two fabric layer mask, or respirator—meaning many of the fancy masks that employees may have personally purchased and been using will no longer be sufficient to meet the safety standard.
  • Outbreak Testing: With respect to the highly controversial “outbreak testing” provision, eliminating the “exposed workplace” concept and shifting to an “exposed group” concept.
    • This would encompass all persons at a work location, working area, or a common area at work, where a COVID-19 case was present (except for short passing through while masked) at any time during the high-risk exposure period, including bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.
    • Outbreak testing would kick in when there are three or more COVID-19 cases in an exposed group. Significantly, the proposed draft removes as a trigger for “outbreak testing” when the local public health department identifies the workplace as the location of an outbreak—which could eliminate the challenge many employers have faced with inconsistency in how local public health departments identify outbreaks.
  • Training Requirements: Adding as required training topics information on COVID-19 vaccinations, COVID-19 testing accessibility, and for employers who provide respirators for voluntary use, training on how to properly wear the respirator and how to perform a seal check. Additionally, employers would need to train employees that N95s and other respirators protect users from airborne diseases like COVID-19, as opposed to face coverings which primarily protect people around the user.
  • Close Contacts: Incorporating a “close contact” definition for purposes such as testing, exclusion, and contact tracing, and exempting from that definition employees who are wearing a respirator under a Cal/OSHA-compliant respiratory protection program.
  • Notifications: Changing and clarifying several of the requirements around COVID-19 notifications to align with AB 685, including, but not limited to, a requirement that COVID-19 notifications include the employer’s disinfection plan.
    • Notably, the revision would also provide an allowance for verbal notice of a COVID-19 case in the workplace if the employer has reason to know that an employee has not received the written notice. This is an important change for the many employers who have had difficulty complying with existing written notification requirements.
    • It also requires employers to notify the employee verbally in a language understandable by the employee, if the employer has reason to believe the employee has limited literacy in the language of the written notice.
  • Engineering Controls: Creating a July 31, 2021, sunset on the “cleanable solid partitions” requirement that currently applies when employees are assigned to work at work stations such as cash registers, desks, production lines, and other locations where physical distancing is not maintained at all times. Prior to the sunset, the requirement also would not apply if employees are wearing respirators under a respiratory protection program, fully vaccinated, or, for workers who require a reasonable accommodation or exception to vaccination, are provided respirators for voluntary use and tested for COVID-19 at least once per week.

What Else Do I Need to Know?

Remember that Cal/OSHA continues to update its interpretive guidance on the ETS via its Frequently Asked Questions page. One of the most significant recent developments is that as of May 5, 2021, Cal/OSHA has aligned itself with CDPH’s Public Health Recommendations for Fully Vaccinated People. Accordingly, fully vaccinated employees exposed to a COVID-19 case who remain asymptomatic need not be quarantined.

The full text of the proposed revision to the ETS can be found here. Trade associations and labor groups will have an opportunity to offer public comment at the Cal/OSHA Standards Board meeting on May 20, 2021. It’s likely the Standard Board will vote on the revisions on the same day. The revised standard would become effective as soon as approved by the State Office of Administrative Law.

Workplace Solutions

Remember to check in with your Seyfarth counselors regularly, as this is a rapidly developing area of law. If you need any assistance with your workplace safety planning, or have questions about requirements related to testing, quarantine, or how to pay workers that are out sick with COVID-19, please feel free to reach out to the authors of this post. Seyfarth can also assist with compliance counseling if you are considering implementing mandatory vaccination programs or creating incentives for your employees to be vaccinated.

Seyfarth Synopsis: Back in January 2020, a federal district court enjoined the State of California from enforcing AB 5, a law about classification of independent contractors, against interstate motor carriers (see our prior piece here). Now, in a split 2-1 decision, a Ninth Circuit panel has reversed the district court, and held that the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) does not preempt AB 5. The panel’s decision could be subject to a rehearing en banc by the full Ninth Circuit, and eventually the U.S. Supreme Court will likely be asked to address the circuit split on whether the FAAAA preempts “all or nothing” state laws like AB 5. 

The District Court’s Injunction Prohibiting Enforcement

On January 16, 2020, a federal judge in the Southern District of California, following up on a temporary restraining order issued on December 31, 2019, granted the California Trucking Association’s request for a preliminary injunction blocking enforcement of AB 5 against interstate motor carriers. The district court found that AB 5’s ABC test destroys the historical owner-operator model, in direct contravention of the FAAAA, a 1994 deregulation measure that forbids any state law “related to a price, route, or service of any motor carrier … with respect to the transportation of property.” The district court concluded that the FAAAA “likely preempts ‘an all or nothing’ state law like AB 5 that categorically prevents motor carriers from exercising their freedom to choose between using independent contractors or employees.”

The Ninth Circuit’s Decision

A  2-1 panel decision overturned the district court’s decision, effectively permitting the State of California to enforce AB 5 against interstate motor carriers who have long contracted with truck drivers who are owner-operators. The panel majority rejected the district court’s analysis, reasoning that AB 5 is like other state laws (such as those regarding meal and rest periods) that the Ninth Circuit has upheld as generally applying to all industries as opposed to a targeted group. The panel majority concluded that AB 5 is a generally applicable labor law that, while affecting a motor carrier’s relationship with its workforce, is not aimed specifically at the trucking industry.

The panel majority threw out the district court’s finding that the FAAAA preempted AB 5’s enforcement against interstate motor carriers, because AB 5 does not “bind, compel, or otherwise freeze into place the prices, routes, or services of motor carriers,” as required for FAAAA preemption.

The Dissent

A lengthy dissent by Judge Mark Bennett faulted the panel majority for failing to consider the full scope of AB 5’s impact on interstate motor carriers, including the impact on their customer relationship and services. AB 5, Judge Bennett argued, differs from the prior state laws of general applicability that the Ninth Circuit has upheld. AB 5 establishes an “all or nothing” rule for interstate motor carriers and mandates how motor carriers must engage with their workers. Judge Bennett cited the district court’s finding that Prong B was the “Achilles heel” of AB 5 for interstate motor carriers because AB 5 makes a truck driver an employee unless the motor carrier proves that the driver “performs work that is outside the usual course of its business.”

Finally, in an evident effort to garner attention from the U.S. Supreme Court, Judge Bennett pointed out the circuit split that the panel majority has created, in that other Circuits have ruled that the FAAAA preempts “all or nothing” statutes.

Motor Carriers Should Keep A Close Eye On Further Developments

The Ninth Circuit did not immediately lift the injunction, but one can expect the injunction to be lifted by court order in the coming weeks, which would permit California agencies to enforce AB 5 against motor carriers. The panel’s decision could be subject to a rehearing en banc by the full Ninth Circuit, and eventually one might expect that the Supreme Court will be asked to weigh in on the issues raised by the appeal, especially in light of Judge Bennett’s characterization of a circuit split on “all or nothing” rules.”

Workplace Solutions

While this litigation may continue to wind its way through the courts, motor carriers should closely examine their current practices, particularly if they use an owner operator model and intend to continue doing so. Seyfarth’s Independent Worker Strategies and Transportation and Logistics teams are here to assist in helping craft agreements and policies that are keeping pace with the current state of the law in this area.

Edited by Coby Turner

Seyfarth Synopsis: California has long prohibited sexual harassment in various types of relationships, including employment relationships, and in other professional and business relationships which have elements of power imbalance. Although the right to sue for sexual harassment in business and professional relationships has been part of the fabric of California law for decades, in recent years, the legislature has taken steps to highlight those rights by enacting new legislation and clarifying the types of relationships from which actionable sexual harassment may arise.

Sexual Harassment Prohibited in Non-Employment Relationships

In November 2018, California amended and clarified Civil Code section 51.9 with Senate Bill 224, which states that a “person” (which includes business entities) is liable for sexual harassment when a claimant can prove the following:

  1. There is a business, service, or professional relationship between the plaintiff and defendant or the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party.
  2. Defendant made sexual advances, solicitations, sexual requests, demands for sexual compliance, or engaged in verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender—which were unwelcome, persuasive, or severe.
  3. Plaintiff suffered or will suffer economic loss or a personal injury including but not limited to emotional distress or violation of a statutory or constitutional right due to defendant’s actions.

When Civil Code section 51.9 was initially enacted, it specifically stated that the professional and business relationships included physicians, psychotherapists, dentists, attorneys, social workers, real estate agents, appraisers, investors, accountants, bankers, building contractors, executors, landlords, teachers, and other relationships that were substantially similar. The idea was to protect individuals from sexual harassment in relationships where there may not be an employment relationship, but there is an inherent relationship of trust and a power imbalance, and to provide an accountability mechanism.

Now, as you might imagine, the broad “substantially similar” language has been a focus of many court cases over recent years and thus, the California legislature made an effort to clarify the intent of and motivation for the law with SB 224. Smart California businesses should take heed of this recent change.

Motivations for the Change

In explaining the need for SB 224, the drafter (Senator Hannah-Beth Jackson) cited high profile incidents, no doubt pointing towards the #MeToo movement, as the reasons for the bill’s enactment. The legislature highlighted that specific relationships were expressly identified in the bill to act as a “greater deterrent against this type of discriminatory behavior,” to end the “boy’s club” mentality, and to put individuals who may “wield so much power and influence” on notice that they would be held liable for sexual harassment—regardless of the existence of an employment relationship. This legislation thus puts burdens on many companies that are greatly expanded to cover how their employees may interact with any number of non-company individuals.

What Other Professional Relationships Are Covered?

Since passing SB 224, developing law has expanded on the types of roles that may be subject to potential liability for sexual harassment. Some examples of the “other relationships” which may give rise to sexual harassment claims under this provision include:

  • A physician who provides the vital service of healthcare and who patients trust with their bodies
  • Producers who are in a position of power and influence over an actor’s career even in the absence of an actual employment relationship (as highlighted by the #MeToo movement)
  • Coaches who are in a service relationship with their athletes, namely providing guidance and overall structure, or who may control an athlete’s prospects (i.e. they can choose to prioritize, play, or cut a player without much say by the athlete)

Ultimately, Civil Code section 51.9 was written to be intentionally broad to cover as many non-employment relationships as possible, and create an accountability mechanism for sexual harassment.

What Should My Business Do?

California courts have held that employers can be vicariously liable for the sexual harassment perpetrated by their employees who may be engaged in these business and professional relationships on their behalf, even with non-employee individuals. Astute employers should therefore listen for complaints about their employees from customers, students, athletes, applicants, and the like, and employers should act on those complaints by investigating, and if necessary, coaching or reprimanding based on the alleged behavior.

Businesses who employ individuals that provide professional services should also consider implementing a training program for employees that goes beyond the prohibition of sexual harassment of co-workers, and provide real-life examples of what Civil Code section 51.9 means in terms of employee’s own personal liability as well as liability of the company.

Companies should also review their policies prohibiting harassment to make sure its policy prohibits sexual harassment in business and professional relationships that employees may be engaged in on behalf of the company as well.

Workplace Solutions

Understanding and navigating the laws prohibiting sexual harassment outside of the employment relationship context is critical for legal compliance and company culture. For help with prohibiting sexual harassment in business and professional relationships within your Company, and mitigating risk in non-employment relationships, please reach out to your favorite Seyfarthian.

Edited by Coby Turner