Seyfarth Synopsis: The State of California has authorized the creation of the Fast Food Council comprised of representatives from labor and management to set minimum standards for workers in the industry, including for wages, conditions related to health and safety, security in the workplace, the right to take time off from work for protected purposes and protection from discrimination and harassment.

Bill No Longer In The Drive Through

Amidst sweltering 115 degree temperatures and related power outages in Sacramento on Labor Day, Governor Newsom further turned up the heat on fast food restaurants by approving the FAST Act on September 5, 2022 (issuing both a written and video signing message).

Effective January 1, 2023, AB 257, the Fast Food Accountability and Standards Recovery Act (or FAST Recovery Act), will establish a 10-member Fast Food Sector Council, within the Department of Industrial Relations.

FAST And Broad Coverage For AB 257

The new legislation is intended to shake up the fast food industry. The bill (and the eventual Fast Food Sector Council) covers any establishment in California that is part of a fast food chain—defined as a set of 100 or more restaurants nationally sharing a common brand, décor, marketing, packaging, products, and/or services—and that, in its regular operations:

  • Primarily provides food and beverages for immediate consumption on or off premises;
  • To customers to order/select items and pay before eating;
  • With items prepared in advance; and
  • With limited or no table service.

Exempt from the definition of “fast food restaurant” are bakeries that solely produce on premises and sell bread as a stand-alone menu item, and restaurants within grocery establishments, provided the grocer employs the individuals working in the restaurant.

What’s On The Menu For The Council?

The Council has an order to set “sector-wide” minimum standards on wages, working hours, and other working conditions “adequate to ensure and maintain the health, safety, and welfare of, and to supply the necessary cost of proper living” for fast food restaurant workers.

But, the Council will have to hold certain items:

  • It may not promulgate regulations requiring predictable scheduling (excluding reporting time pay), amend current statutes, or create new paid time off benefits (excluding paid rest periods);
  • There is a restriction on the amount the Council may establish for purposes of minimum wage (to no more than $22/hour for 2023 and the lesser of 3.5% and an adjusted Consumer Price Index for Urban Wage Earners and Clerical Workers each year after); and
  • The Council must provide information as requested by the appropriate committees of the Legislature.

The Council Combination

The Council will be comprised of appointed fast food workers and their advocates, franchisees, franchisors, representatives from the Governor’s Office of Business and Economic Development, and representatives from the Department of Industrial Relations. Each member of the Council will serve a term of four years and cannot serve more than two consecutive terms.

The new legislation also provides California counties and cities with populations exceeding 200,000 the discretion to establish Local Fast Food Councils. These local councils would operate independently from the Council and provide written recommendations to the Council regarding minimum state health, safety, and employments standards that they find are reasonably necessary to protect the health, safety, and welfare of fast food restaurant workers.

For Here Or To Go, Discrimination And Retaliation Protections Stay

The bill also prohibits fast food restaurant operators from discharging, discriminating, or retaliating against employees who:

  • Make complaints or disclose information regarding employee or public health or safety;
  • Institute, testify, or participate in proceedings related to public health or safety, including any Council or Local Fast Food Council proceedings or meetings; or
  • Refuse to perform work because they had reasonable cause to believe that the practices or premises of the fast food restaurant would violate worker or public health and safety laws, regulations, or would pose a substantial risk to the health or safety of the employee, other employees, or the public.

A rebuttable presumption of unlawful discrimination or retaliation will be established if an adverse action is taken against an employee within 90 days following the employer learning that the employee filed a complaint, or refused to work based on a reasonable belief that the condition of the restaurant would violate worker health and safety laws. And, the employee has a private right of action under this statute for reinstatement, treble (3x) lost wages and benefits, as well as attorneys’ fees and costs.

Hold The…Obligations For Franchisors

Despite most of the provisions of this bill making it through the legislature, fast food franchisors can at least rest a bit easier knowing that the requirement that franchisors ensure franchisee compliance with a variety of employment, worker, public health and safety laws, regulations, and emergency orders was removed prior to the bill’s passage. This potential threat of joint and several liability was a big cause for concern, but did not make it through to the final version of the bill.

Workplace Solutions

Read this if you’re curious about other pending bills affecting California employers, and stay tuned for our updates on which the Governor approves, and which do not make the cut. In the meantime, please contact the authors or your favorite Seyfarth attorney with any questions.

Edited by Coby Turner

Seyfarth Synopsis: Having run the legislative gauntlet, the fate of California’s 2022 employment bills now lie with Governor Newsom’s pen, including bills that would expand pay data reporting and pay scale requirements, extend COVID-19 Supplemental Paid Sick Leave, and create mandatory wages and working conditions for fast food workers, and more.

August 31, 2022, marked the close of the 2022 Legislative Session. Bills that the Assembly and Senate passed late into the night will now be presented to the Governor for signature, where he will generally have until September 30 to act on them (bills sent to the Governor prior to the end of session must be acted upon sooner). Top of employers’ minds are bills that would expand pay data reporting and pay scale requirements, extend COVID-19 Supplemental Paid Sick Leave (again), and create a mandatory wages and working conditions program for fast food workers. Read on for our summary of these and other key employment bills that may soon become law.

Bills That Made The Cut

SB 1162: Pay Data Reporting and Pay Scale Disclosures

As we previously reported, SB 1162 would expand existing requirements that employers with 100 or more employees provide the California Civil Rights Department (CRD, f/k/a the DFEH) with specified EEO-1 pay data. New requirements would include reporting mean and median hourly rates, as well as a separate second report to be provided by employers that have 100 or more employees hired through labor contractors (so long as 1 employee is in CA).

The bill would expand the requirement that employers provide a pay scale for candidates to require all employers with more than 15 employees provide to existing employees the pay scale for the employee’s current position.

This bill will amend Section 12999 of the Government Code and Section 432.3 of the Labor Code.

AB 1949: Protections for Bereavement Leave

AB 1949 would amend the California Family Rights Act (“CFRA”) to prohibit an employer from denying a request from an employee with at least 30 days of active service to take up to five days of bereavement leave upon the death of a family member, defined as spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. While the days of bereavement leave need not be taken consecutively, the allotted leave must be completed within three months of the date of death of the family member. If the employer does not have a paid bereavement policy, the leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

The bill would allow the employer to require documentation of the death of the family member, which can be in the form of a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency. The bill would prohibit retaliation for requesting bereavement leave.

The bill will amend Sections 12945.21 and 19859.3 of, and add Section 12945.7 to, the Government Code.

AB 2188: Off-the-Job Cannabis Use Protection

AB 2188 would, starting January 1, 2024, prohibit employers from discriminating against a person based upon their use of cannabis off the job. However, the bill expressly does not prohibit employers from taking action against a person for failing a valid pre-employment drug test that does “not screen for nonpsychoactive cannabis metabolites.” The bill would also permit an employer to administer a performance-based impairment test, and to terminate an employee who is determined to be impaired by cannabis on the property or premises of the place of employment. These provisions would not apply to employees in building or construction trades, and would not preempt state or federal laws requiring employees to be tested for controlled substances.

The bill will add Section 12954 to the Government Code.

AB 152: COVID-19 Supplemental Paid Sick Leave (Again)

The 2022 COVID-19 SPSL law was set to sunset on September 30, 2022. A very last minute gut and amend to AB 152 seeks to extend SPSL to December 31, 2022. This bill would only extend the time during which workers can elect to use the leave—it is not a newly-banked tranche of leave. The qualifying reasons for leave remain the same, as we previously summarized. In a slight extension of existing law, the bill would permit an employer to require an employee to submit to a second diagnostic test within no less than 24 hours, after the first positive result. The employer may decline to provide SPSL where the employee refuses a second test.

The bill was presented to the Governor August 31, 2022, and will take effect immediately upon signature.

AB 1041: Leave – Designated Person

AB 1041 would amend the California Family Rights Act to include a “designated person” for whom an employee may take leave. Designated person is defined as “any individual related by blood or whose association with the employee is the equivalent of a family relationship,” and would include domestic partners. An employer may limit an employee to one designated person per 12-month period, and may require the employee to substitute any of the employee’s accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer.

The bill will amend Section 12945.2 of the Government Code and Section 245.5 of the Labor Code.

AB 257: Fast Food Accountability and Standards Recovery Act (FAST Recovery Act)

This bill, initially introduced in January of 2021, would establish a Fast Food Sector Council charged with creating a fast food workers’ bill of rights “to establish sectorwide minimum standards on wages, working hours, and other working conditions adequate to ensure and maintain the health, safety, and welfare of, and to supply the necessary cost of proper living to, fast food restaurant workers.”

The bill would forbid the Council from promulgating regulations requiring predictable scheduling, to amend current statutes, or to create new paid time off benefits. The bill also regulates the amount the Council may establish for purposes of minimum wage. The Council would also be subject to legislative committee oversight, explicitly requiring the Council to “provide information as requested by the appropriate committees of the Legislature.” The bill would establish a rebuttable presumption of unlawful discrimination or retaliation if an adverse action is taken against an employee within 90 days following the employer learning that the employee filed a complaint, or refused to work based on a reasonable belief that the condition of the restaurant would violate worker health and safety laws.

The bill was recently amended to remove a requirement that franchisors ensure franchisee compliance with a variety of employment, worker, public health and safety laws, including those related to unfair business practices, general liability, employment discrimination, the California Retail Food Code, a range of labor regulations, as well emergency orders. That provision would have also established joint and several liability for franchisee non-compliance with the measure, and prohibited any waiver or indemnity provisions.

The bill will amend Section 96 of, and adds Part 4.5.5 (commencing with Section 1470) to Division 2 of, the Labor Code.

AB 676: Franchisor Discrimination

This bill prohibits a franchisor from failing or refusing to grant a franchise or financial assistance to a current franchisee or prospective franchisee based solely on any characteristic protected by the Unruh Civil Rights Act of the prospective franchisee, or of the geographic area where the franchise is located, if any characteristic of the composition of the neighborhood or geographic area where it is to be located is protected by the Unruh Act. The Unruh Act confers protected status based on sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.

This bill will amend multiple Business and Professions Code and Corporations Code provisions.

SB 1262: Background Checks

This bill was inspired by the California Court of Appeal’s decision in All of Us or None of Us. v. Hamrick, which held that an individual’s date of birth and driver’s license number could not be used as data identifying a criminal defendant in public records. This caused courts around the state to redact birth dates and driver’s license numbers from their indexes, making routine background checks much more difficult. Abrogating the Court of Appeal’s decision, this bill would require publicly accessible electronic indexes of defendants in criminal cases to permit searches and filtering of results based on a defendant’s driver’s license number or date of birth.

This bill will amend Section 69842 of the Government Code.

SB 1044: Emergency Conditions – Prohibition on Adverse Employment Actions

SB 1044 would prohibit employers, in the event of an emergency condition from: (1) taking or threatening adverse action against an employee for refusing to report to or leaving a workplace because they feel unsafe; or (2) preventing an employee from accessing their mobile device for use for emergency purposes. The bill defines “emergency condition” as either: (1) conditions of disaster or extreme peril to the safety of persons or property at the workplace caused by natural forces or a criminal act; or (2) an order to evacuate a workplace, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act. A health pandemic is not considered an emergency condition, and the measure is inapplicable to emergency conditions that have ceased.

The employee, where feasible, would be required to notify the employer of the emergency condition before benefiting from the bill’s provisions. The bill does not apply to first responders, disaster service workers, employees on military bases, and employees of residential care facilities, among others.

While a violation of these provisions could subject an employer to a private lawsuit and penalties under the Private Attorneys General Act (PAGA), the bill allows a right to cure alleged violations following Labor Code section 2688.3.

Adds Chapter 11 (commencing with Section 1139) to Part 3 of Division 2 of the Labor Code.

AB 2183: Agricultural Labor Relations

As an alternative procedure to the polling place election process set forth in Section 1156.3 of the Labor Code, the bill would permit a labor organization to be certified through either a labor peace election or a non-labor peace election as the exclusive bargaining representative of a bargaining unit, through a representation ballot card election or by mail, thereby permitting a bargaining unit to summarily select a labor organization as its representative for collective bargaining purposes without holding a polling place election.

Last year, Governor Newsom vetoed a similar measure, directing the Labor and Workforce Development Agency to work with the Agricultural Labor Relations Board to correct some procedural irregularities and internal inconsistencies with the previous version of the bill.

Adds Sections 1160.10 and 1162 to the Labor Code.

AB 1601: Call Centers

AB 1601 originally would have required an employer of employees in a call center that intends to relocate from this state to notify the Labor Commissioner at least 120 days before the relocation. The measure, however, underwent a serious gut and amend, recasting the provisions of the measure to provide employment protections for employees in call centers subject to mass layoffs, relocations, or termination of employees—in other words, California’s statutory WARN requirements. This bill would prohibit a call center employer from ordering a relocation of its call center unless notice of the relocation is provided to the affected employees at least 60 days prior to the relocation.

Amends Labor Code Sections 1400, 1406, and adds related Labor Code Articles.

AB 2777: Extending Sexual Assault Statute of Limitations

The bill would amend the Code of Civil Procedure to permit a putative plaintiff, from January 1, 2023, to December 31, 2023, to pursue a cause of action in court based on sexual assault regardless of whether that claim would be barred by the applicable statute of limitations, so long as the alleged wrongful actions occurred on or after January 1, 2009. This is despite the fact that the Code of Civil Procedure already provides for a lengthy ten-year statute of limitations for claims relating to a sexual assault.

A previous version of this measure would have permitted revival of all claims “arising out of a sexual assault or other inappropriate contact, communication, or activity of a sexual nature that would otherwise be barred before January 1, 2023,” but the statute did not endeavor to define what constitutes “activity of a sexual nature.” Thankfully, that troubling provision was removed. Before “reviving” a claim under this provision, the attorney bringing the claim must sign a declaration “stating that the attorney has reviewed the facts of the case and consulted with a mental health practitioner, and . . . that it is the attorney’s good faith belief that the claim value is more than two hundred fifty thousand dollars.”

Amends Section 340.16 of the Code of Civil Procedure.

Bills That Did Not Make The Cut

AB 2133: Wages, Final Payment

This bill would have amended Section 201 of the Labor Code to reduce the amount of time to pay final wages from 72 to 48 hours in the event of a layoff of seasonal employees employed in the curing, canning, or drying of any variety of perishable fruit, fish, or vegetables. Recently, however, the legislation underwent a complete gut and amend to remove any labor and employment provisions, and recast the measure to require a reduction in statewide greenhouse gas emissions to at least 55 percent below the statewide greenhouse gas emissions limit no later than December 31, 2030. On the last day of session, the Assembly refused to concur in the Senate amendments and the bill failed.

AB 437: Exclusivity Requirements For Actors

This bill would have prohibited contractual provisions for the personal or professional services of an employee working as an actor that would prohibit the employee from working for multiple employers, “unless the employer can show that the other employment would pose a direct scheduling conflict or the employer can show that it would materially interfere with the employer’s business.” The measure was ordered to the inactive file in the middle of August by the bill’s author, the same Senator that put on this masterclass at the end of session.

Workplace Solutions

We will continue to keep you apprised of developments as they come out of the Governor’s office. Expect a deep dive on our blog of bills that ultimately pass and will affect you and your California workforce. Please check back in with us here at California Peculiarities, and you can also check out our Policy Matters podcast and newsletter for regular check-ins on California (and national) policy and legislative updates as well.

Edited by Coby Turner and Elizabeth Levy

Seyfarth Synopsis: SB 1162, which may soon be signed into law, will require employers to report even more pay data to the California Civil Rights Department (CRD, formerly DFEH), including median and mean pay gap information. But, removed from the bill was a requirement that the CRD post the pay data online.

It’s Almost Game Time!

As we previously blogged, the California Legislature is seeking to up the ante when it comes to pay transparency. SB 1162’s game plan: require more pay data disclosures from employers. Victory? Almost. California’s most recent pay transparency bill looks likely to be signed into law by the Governor’s September 30, 2022 deadline. If it passes, employers will be required to comply with a host of new pay data and pay scale disclosure requirements.

California Moving The Goalposts On Reporting Requirements

Proponents of SB 1162 believe that the current law allows for an end-run around eliminating pay inequities, doesn’t go far enough in its requirements for employers. Through SB 1162, the legislature is playing the long ball and seeking to impose the following changes:

  • Within each job category, require that employers report the median and mean hourly rate by each combination of race, ethnicity, and sex. (Existing law requires only numerical counts of employees by race, ethnicity and sex within each job category and pay band.)
  • Revise the deadline to submit pay data reports, with the new deadline occurring annually on the second Wednesday of May each year.
  • Employers with more than 15 employees would be required to include a pay scale in all job postings (and to provide that information to third parties who post those jobs).
    • Note: New amendments to the bill clarify that no penalty would apply for a first violation of this requirement if the employer can show that all job postings for open positions have been updated to include the pay scale.
  • All employers, regardless of size, would be required to provide a pay scale for a current employee’s position at the employee’s request—in addition to the requirement in existing law to provide candidates for employment the pay scale for the position the candidate is seeking.
  • Employers with multiple establishments would no longer be required to submit a consolidated report, and would continue to be required to submit a report for each establishment.
  • Employers that have 100 or more employees hired through labor contractors would have a new obligation to produce data on pay, hours worked, race/ethnicity, and gender information in a separate report.
    • Note: A recent amendment to the bill requires that labor contractors “supply all necessary pay data to the private employer,” but does not contain a separate mandate for the labor contractors to collect the “necessary pay data,” nor does it define the data required or address issues with regard to timing of these disclosures. The bill also attempts to hold labor contractors responsible by allowing a court to apportion an “appropriate amount” of any penalties to any labor contractor who failed to provide required pay data to the employer.

Calling An Audible And Removing The Publication Requirement

Initially, SB 1162 would have directed the CRD to publish each employer’s submitted pay reports on a public website. Employers objected to this requirement, and Seyfarth Shaw helped run interference and provided testimony on this issue on behalf of Cal Chamber.

On August 15, 2022, an amendment removed the public disclosure provision and it has now been sidelined. If the bill passes in its current form, the CRD would only be allowed to publish aggregate reports that do not associate pay data with individual employers.

How Does It Get Out Of The Red Zone? What’s Next?

The California Assembly voted to pass the bill on August 29, 2022. The bill returned to the Senate for concurrence on the amendments, which was granted on August 30, 2022. Now it moves forward to Governor Newsom’s desk for possible approval—and his last day to sign or veto bills is September 30, 2022.

If he approves it, the bill, and its pay scale disclosure requirements would be effective beginning January 1, 2023. The updated pay data reports, including mean and median pay gap information, would be due starting May 10, 2023.

Remember: Look Out For The Blitz With Possible Federal EEO-1 Reporting Releases

As a related reminder when it comes to pay transparency, employers both in and out of California that are federal contractors currently may have their consolidated (Type 2) EEO-1 Reports that were filed between 2016-2020 released pursuant to the Freedom of Information Act request from the Center for Investigative Reporting, unless they promptly object to the disclosure. See our alert with more information.

Companies that have historically kept their EEO-1 data confidential may want to consider filing objections to the FOIA request, which would be due no later than September 19, 2022, unless an extension of time is received from the OFCCP. Employers can file objections via an online OFCCP Submitter Notice Response Portal or by email to OFCCPSubmitterResponse@dol.gov.  If a company plans to file objections, but needs more time, it should immediately submit a request for an extension to the same email address.

Seyfarth is here to huddle up and assist with helping companies analyze whether they would like to file objections.

Workplace Solutions

Employers should start diagramming their compliance plans for California’s anticipated new pay transparency provisions now, including compiling and reviewing data to identify areas needing attention. The authors and your favorite Seyfarth attorneys are always available to help you get from the line of scrimmage to the end zone.

Edited by Elizabeth Levy and Coby Turner

California continues to be “where the future happens” for employment law, and we are pleased to announce the release of our 2022 version of Cal-Peculiarities How California Employment Law is Different. As in previous editions, this publication reflects the breadth and depth of our California employment practice and focuses entirely on the most vexing aspects of California employment law. Click here to request your copy today!

In connection with the launch of this year’s edition, please join us for a webinar this Friday, where Seyfarth’s California Workplace Solutions group discuss some of the biggest changes in California employment law over the last year! Click here to register.

Friday, July 15, 2022
10:00 a.m. to 11:30 a.m. Pacific
11:00 a.m. to 12:30 p.m. Mountain
12:00 p.m. to 1:30 p.m. Central
1:00 p.m. to 2:30 p.m. Eastern

This webinar, presented by Seyfarth partners Ann Marie Zaletel, Chelsea Mesa, and Leo Li, will cover the latest legal developments of interest to executives, managers, in-house counsel, and human resources professionals with employees in California, including:

  • 2022 California COVID-19 Supplemental Paid Sick Leave
  • West Hollywood Compensated and Uncompensated Leave
  • Cal-OSHA COVID-19 ETS Exclusion Pay
  • California State Minimum Wage Increase
  • 2022 Private Attorneys General Act (PAGA) Updates
  • A Win for Employers:  LaFace v. Ralphs Grocery Co. Suitable Seating Decision
  • Regular Rate of Pay − Meal and Rest Period Premiums and California Paid Sick Leave/2022 COVID-19 Supplemental Paid Sick Leave
  • Rounding and Meal Periods
  • Recent Supreme Court Decision on Waiting Time Penalties and Wage Statement Violations for Failure to Pay Meal and Rest Period Premiums — Naranjo v. Spectrum Sec. Servs.
  • Warehouse Distribution Center Quota Disclosure Requirements
  • California Family Rights Act (CFRA) Updates
  • New Restrictions on Separation and Settlement Agreements
  • COVID-19/Great Resignation World of Work − Increasing Importance of Work Culture Assessments

Registrants for the webinar will receive presentation materials and a copy of the recording following the presentation. We look forward to seeing you at the webinar!

Seyfarth Synopsis: West Hollywood has joined the growing ranks of California cities that have their own local sick leave and/or minimum wage requirements.  West Hollywood enacted an ordinance that creates new paid and unpaid time off mandates as well as minimum wage obligations and mandates the distribution of service charges.  The new ordinance went into effect for most employers July 1, 2022.

On November 15, 2021, West Hollywood enacted an Ordinance that permits employees to accrue up to 96 compensated hours per year for sick leave, vacation, or personal necessity, up to 80 hours of uncompensated sick time, and set a schedule for increasing the city’s minimum wage. On May 16, 2022, West Hollywood amended the Ordinance to clarify some of its more confusing provisions.  The city recently released regulations and administrative materials, such as required posters regarding the new minimum wage and the time off components.

How to Get Four Stars for Compliance

Employers need to make sure they stay on script with the key components of the Ordinance:

  • Different Effective Dates for Hotel Versus General Employers: For hotel employers, the Ordinance took effect on January 1, 2022. For all other employers, the Ordinance took effect on July 1, 2022.
  • Two Hours of Work Creates a WeHo “Employee”: “Employee” includes any person who performs at least two hours of work within the geographic boundaries of West Hollywood for an employer in a particular week, and is entitled to minimum wage (i.e. is nonexempt).
  • Broad Definitions of Employers and Hotel Employers: Employers are defined broadly. “Hotel employers” broadly encompasses hotels, as well as entities that own or control leased or sublet premises connected to the hotel (for example, a spa or restaurant).

West Hollywood Takes PTO to the Big Time

The city’s paid time off (“PTO”) provisions create paid time off that includes paid sick leave, vacation, or personal necessity time.

  • Up to 96 Hours of Paid Time Off: Employees are able to accrue up to 96 compensated hours off per year. Part-time employees must receive a pro-rated amount. Employers must not “unreasonably deny” an employee’s request to use accrued leave.
  • Employers Can Separate Sick and Vacation: The regulations explain that employers can separate paid sick time and paid vacation time. However, if an employer uses multiple buckets, at least 50% of the time must either be vacation or personal necessity leave. Any paid sick leave component will need to comply with both the California State PSL and West Hollywood standards, and any personal time or vacation time will need to be treated as vacation time under California law (and paid out upon termination).
  • PTO Accrual: After the first six months of employment, full-time employees (those working at least 40 hours per week or whom the employer deems full-time, whichever is more generous) shall accrue at least 96/52 hours of compensated time off for each week worked. Compensated time off does not accrue for work in excess of 40 hours in a given week.
    • Part-time employees must accrue compensated time off in increments proportional to that accrued by someone who works 40 hours per week (i.e. a 20 hour per week employee must be allowed to accrue at least 48 hours of compensated time off per year).
    • Employers can choose to forgo the accrual method and grant a single lump sum.
  • Carryover: Unused, accrued compensated time off must be allowed to carry over until the time off reaches a maximum balance of 192 hours, unless the employer’s established policy is more generous.
  • Cash-Out Not Required: The original Ordinance required covered employers to provide a cash payment to employees for any accrued compensated time above 192 hours every 30 days. However, the amended version deletes the 30-day cash-out provision.
  • Rate of PTO Pay: Unlike California’s state-wide PSL, the rate of pay for compensated time off is based solely upon the base rate of pay. Employers who seek to have WeHo paid sick leave comply with state requirements will need to tread carefully.
  • Sick Leave (Uncompensated Time Off): Employers must also permit full-time employees to take at least eighty (80) additional hours per year of uncompensated time off to be used for sick leave where the employee has exhausted their compensated time off for that year. Employees should accrue not less than .039 hours of uncompensated time off per hour worked, up to 80 hours, but employers can choose to frontload the time. Part-time employees receive a proportional amount. Unused, accrued uncompensated time off will carry over until the time off reaches a maximum of 80 hours, unless the employer’s established policy is more generous. Uncompensated time off does not accrue in excess of 40 hours in a given week.
  • Credit Where Credit Is Due. Though the ordinance is not crystal clear on this point, the regulations suggest that only the hours worked within the city count towards accrual.
  • Six Month Waiting Period. Employees are eligible to use accrued compensated and uncompensated time off after the first six months of employment or consistent with company policies, whichever is sooner.
  • No Unlawful Practices or Retaliation: As with similar ordinances, employers are prohibited from reducing hours or benefits in order to pay wages less than the established minimum wage, and they are prohibited from retaliating against employees for exercising their rights under the Ordinance.
  • Liability for Civil Penalties and Lawsuits: The Ordinance provides for administrative penalties and creates a private right of action for aggrieved employees.
  • Rehire Obligations: Like regular California paid sick leave, if an employee is rehired within a year, the previously accrued and unused compensated leave (designated as sick leave) and uncompensated sick leave must be reinstated.

Minimum Wage Requirements

In addition to the paid time off components as described above, West Hollywood’s Ordinance contains a minimum wage component, raising the minimum wage above the levels set by the state and other local areas.

  • Schedule for Employers with 50-Plus Employees:
    • January 1, 2022: no less than $15.50 per hour.
    • July 1, 2022: no less than $16.50 per hour.
    • January 1, 2023: no less than $17.50 per hour.
    • July 1, 2023: no less than $17.64 per hour.
  • Schedule for Employers with Less Than 50 Employees:
    • January 1, 2022: no less than $15.00 per hour.
    • July 1, 2022: no less than $16.00 per hour.
    • January 1, 2023: no less than $17.00 per hour.
    • July 1, 2023: no less than $17.64 per hour.
  • Annual Increase of Minimum Wage Rate: On July 1, 2022 and annually thereafter, the minimum wage rate will increase based on an applicable location index determined and adopted by the West Hollywood City Council. The city will announce the adjusted rates annually on or before each April 1st and publish a bulletin announcing the adjusted rates, which will also take effect on July 1st of each year.
  • Notice and Posting: Every employer shall post the city’s poster in a conspicuous place at any workplace or job site where covered employees work. Notices shall be posted in English, Spanish, and any other language spoken by at least five percent (5%) of covered employees. At hiring, employers are also required to provide notice of the employer’s name, address, and telephone number in writing. Employers should also inform their employees of the possible right to the earned income tax credit under state and federal law.
  • Record Retention: Similar to state requirements, employers need to retain payroll records pertaining for no less than three years.

Service Charge Requirements in the Limelight

Employers are required to distribute Service Charges to employees who performed services (excluding managers and supervisors). The Ordinance defines a Service Charge as something that is not a gratuity, but is a separately-designated amount charged and collected from customers for service, or is described in such a way that customers might reasonably believe that the amount is for those services or is otherwise to be paid or payable directly to employees, including those charges designated on receipts, invoices, or billing statements under the term “service charge,” “table charge,” “porterage charge,” “automatic gratuity charge,” “healthcare surcharge,” “benefits surcharge,” or similar language.

Can We Exit Stage Left?

The ordinance provides an avenue for businesses that would experience hardship to seek a waiver, which requires specific notice provisions to employees. The provisions in the ordinance can also be waived through a collective bargaining agreement, but only where the waiver is set forth in clear and unambiguous terms.

Workplace Solutions

As the paid leave landscape continues to expand, companies should reach out to their favorite Seyfarth attorney for solutions. To stay up-to-date on paid leave developments in California and beyond, click here to sign up for Seyfarth’s Paid Sick Leave mailing list.

 

Edited by Coby Turner

Seyfarth Synopsis: Wake up San Francisco! Mayor London Breed has approved amendments that will significantly expand the city’s 2014 Family Friendly Workplace Ordinance (“FFWO”). The amendments will go into effect on July 12, 2022.

Everywhere You Look, Everywhere You Turn, There’s Somebody Who Needs . . . Flexible Working Arrangements

Just like our favorite 90s TV dad, Danny Tanner and his comedic cohorts, employees with caregiving responsibilities have been working double duty in their homes and workplaces. Unlike in sitcoms, most employees do not have a full house of help to rely on. Recognizing the real world demands placed on employees over the past several years, San Francisco has passed amendments to its 2014 Family Friendly Workplace Ordinance (“FFWO”), which will go into effect on July 12, 2022.

The 2014 FFWO, discussed here and here, gave covered employees the right to request alternative work arrangements to assist with caregiving responsibilities, but did not entitle employees to a specific response to their requests.

The 2022 amendments may be challenging for employers, as they provide expanded coverage and guarantee flexible or predictable work arrangements for employees with qualifying caregiver responsibilities who provide written notice of their preferred arrangement, unless there is undue hardship to the employer.

It’s A Full House Of Covered Employees And Caregiving Activities

Under the original FFWO, employees were protected if they were:

1. Employed in San Francisco;

a. By an employer with 20 or more employees regardless of location;

b. For six months or more;

2. Working at least eight hours per week on a regular basis; and

3. Providing care for:

a. a child/children under the age of 18;

b. a person/persons with a serious health condition in a family relationship with the employee;

c. or a parent (age 65 or older) of the employee.

The amendments expand protections to include employees teleworking into San Francisco from a location outside of the city. “Telework” is broadly defined as an employee’s work for an employer from the employee’s residence or other location that is not the employer’s office or worksite, provided that the employee is assigned to a San Francisco business location within the geographic boundaries of the city at the time of the employee’s flexible working arrangement request.

The amended ordinance also includes in the definition of qualifying caregiver responsibilities care of any person age 65 or older with a family relationship to the employee (where the original ordinance was limited to care for a parent).

When The Flexible Working Arrangements Cause Employers Undue Hardship, Have Mercy

Undue hardship is the only grounds for denying a qualifying employee a flexible or predictable working arrangement. The bases for undue hardship are the same as those included in the 2014 FFWO and may include:

  • Cost-Related Hardship: The costs directly caused by flexible or predictable working arrangements, including cost of productivity loss, retraining or hiring employees, or transferring employees from one facility to another.
  • Client/Customer Impact: Detrimental effect on ability to meet customer or client demands.
  • Coordination Difficulties: Inability to organize work among other employees.
  • Insufficient Work: Insufficiency of work to be performed during the time or at the location the employee proposes to work.

Employers’ New Interactive Process And Notice Obligations

Under the amended ordinance, the employer may choose to meet with the employee regarding a flexible working arrangement within 14 days of receipt of the notice of this need. This is an optional meeting.

Whether or not the employer opts to conduct a meeting, within 21 days of receipt of the employee’s written notice, the employer must either respond in writing confirming the flexible working arrangement or have engaged in an interactive process to determine an alternate, mutually agreeable arrangement.

If the interactive process is unsuccessful and employer denies or revokes a flexible or predictable working arrangement, the employer must provide written notice of this decision within 21 days of the employee’s request, which contains the following:

  • The basis for the denial (how the flexible work arrangement created an undue hardship);
  • Notification to the employee of their right to request reconsideration and file a complaint with the San Francisco Office of Labor Standards Enforcement (OLSE); and
  • A copy of the Flexible Work Ordinance Notice.

If an employee requests reconsideration of the denial within 30 days of the notice of denial, the employer must meet with the employee within 21 days of the reconsideration request, and inform the employee of the employer’s final decision within 14 days of that meeting. This notice of final decision must be in writing and, if a denial, must explain the employer’s basis for undue hardship and inform the employee of the right to file an OLSE complaint.

You’re In Big Trouble, Mister—Expanded Enforcement Mechanisms For The OLSE

The amendments include several changes to the OLSE’s investigation authority and recourse against an employer who has been found to have violated the amended FFWO.

  • What Can The OLSE Review: Under the original FFWO, the OLSE could only review and issue a finding as to whether the employer had complied with the procedural, posting, and documentation requirements of the ordinance. The amendments broaden the scope of the OLSE’s review to include the validity of an employer’s claimed undue hardship.
  • Elimination Of The OLSE’s 12-Month Warning Period: Under the original FFWO, during the first 12 months of an OLSE investigation, the Agency could issue warnings and notices to employers to correct potential violations. Only after this 12-month window could the OLSE impose an administrative penalty. The amendments eliminate this warning period.
  • Enforcement Parameters: Under the original FFWO, the OLSE could require a violating employer to pay up to $50 to each employee for each day or portion thereof that the violation occurred. Under the amendments, a violating employer is required to pay either the $50/day or portion thereof to each affected employee, or up to the cost of care the employee incurred due to the violation, whichever is greater.
  • Non-Complying Employers: Under the original FFWO, if an employer did not promptly comply with the OLSE’s determination, the Agency could initiate a civil action and order a violating employer to pay the city no more than $50 for each day or portion thereof in which a violation occurred, and for each employee to whom the violation occurred or continued. The amendments add a further means of seeking compliance by allowing the OLSE to recover up to the City’s costs for its investigation and remedy of the violation if greater than the $50/day provision.
  • Enforcement Of The OLSE’s Decision: The amendments further provide that the OLSE may seek to enforce its final administrative decision through a civil lawsuit and, except where prohibited by State or Federal law, may request that city agencies or departments revoke or suspend registration certificates, permits, or licenses held or requested by the employer until the violation is remedied.

I Need To Get That In Writing, Capiche?

The 2014 FFWO and the 2022 amendments both require employees to make requests in writing. Employees must submit written notices of their need for flexible working arrangements 21 days before the requested start date, which must specify:

  • The requested arrangement;
  • Proposed start date;
  • Requested duration of the arrangement; and
  • An explanation of how the request relates to caregiving responsibilities.

Employers may also ask employees for verification to support their requests.

Employers are also (still) required to post the city’s official FFWO notice in a conspicuous place in English, Spanish, Chinese and any other language spoken by at least 5% of the workforce.

Employers must also retain records to demonstrate compliance for three years from the date of a request for a flexible working arrangement.

Cut – It – Out! Some Exemptions and Waivers Remain

Limited exemptions and waivers contained in the original FFWO have not been modified by the amendments. A collective bargaining agreement can still expressly waive any or all of the provisions of the FFWO, and the OLSE may still exempt certain employees working in public safety or public health functions pursuant to an employer’s request.

Workplace Solutions

Employers impacted by the amendments to the FFWO should develop San Francisco-specific flexible working arrangement policies. The authors and your favorite Seyfarth attorneys are always available to help employers navigate the road to compliance.

Edited by Coby Turner

Seyfarth Synopsis: Headlining the employment-related bills that passed the May 27, 2022, House of Origin Deadline is AB 85, which extended COVID-19 Supplemental Paid Sick Leave to September of this year, as well as bills related to accommodations, leaves, retaliation, and workers’ compensation.

On the deadline for bill introduction, back in February, California legislators introduced 611 bills between the two houses, bringing the total number of bills introduced in 2022 to 2,020—1,361 Assembly Bills (“AB”) and 659 Senate Bills (“SB”) 458 of those bills were spot bills, while 181 were intent bills (explanation here). A significant portion of the bills introduced occupy the labor and employment space.

While many measures that would have caused headaches for employers failed to meet the House of Origin deadline, the most concerning provisions remain on a path to Governor Newsom’s desk. Below, we summarize the most significant bills that met the House of Origin deadline and remain in play for California employers.

The bills will now make their way through the committee process in either the Senate or Assembly (depending on which Chamber introduced the measure). Many of these measures will undergo significant amendment, or be completely gutted and amended to look nothing like their genesis. Some will make it through the legislative process, and some will not. Stay tuned for more in-depth analyses of the proposed bills of most interest to employers as the session continues.

COVID-19 Continues to Occupy Legislative Focus

COVID-19 Supplemental Paid Sick Leave (Again): AB 84  

While the California legislature was unable to, or uninterested in, passing a broad vaccination mandate, intense negotiations between the Newsom administration and the business community yielded a whole new tranche of up to 80-hours of mandatory paid sick leave for a variety of COVID-19-related reasons that went into effect on February 19, 2022, and was made retroactive to cover time off taken after January 1, 2022. Despite lobbying efforts by the business community, employers cannot require that this leave be exhausted before using leave available under the Cal/OSHA ETS.

In this iteration of the SPSL, which we blogged about in detail here, there are two buckets of leave available, each up to 40 hours. For the “first bucket,” the qualifying reasons for an employee to be eligible for paid leave are nearly the same as for the 2021 iteration, SB 95, but AB 84 adds leave in order to attend a vaccination appointment for a family member, or to care for a family member experiencing COVID-19 symptoms. Unlike the 2021 COVID-19 SPSL law, AB 84 provides that an employer may limit the total vaccination-related leave to 3 days or 24 hours unless the employee provides verification from a health care provider that they or their family member is continuing to experience symptoms related to a COVID-19 vaccine or booster.

Qualifying reasons for the “second bucket” of up to 40 hours include where the covered employee or a family member tests positive for COVID-19, and employers are allowed to require proof of the positive test. The employer has no obligation to provide the second bucket of leave if the employee does not have proof of the positive test for themselves or their family member.

The rate of pay required for non-exempt employees is the regular rate during the pay period the leave is taken if the employer uses the workweek method, or alternatively the employer can use a 90-day lookback for determining the average regular rate, that is generally the same as with the normal state paid sick leave law (unless the employer has any flat-sum bonuses involved, in which case the employer will need to use the Alvarado-method of calculating the regular rate, as detailed here). The new law provides for the same pay caps as in previous iterations of supplemental sick leave ($511 per day max). Additional FAQs on this new law are available here.

The 2022 COVID-19 SPSL law sunsets on September 30, 2022.

COVID-19 Workers’ Compensation for Critical Workers: AB 1751

This bill extends the current rebuttable presumption (which we previously blogged about here) that specified injuries resulting from COVID-19 were sustained in the course of employment to January 1, 2025. The measure provides that if an employee has paid sick leave benefits specifically available for COVID-19, those benefits must be exhausted before any temporary disability benefits or benefits under the workers’ compensation system become due.

This measure applies only to the following employees: (1) Active firefighting members, whether volunteers, partly paid, or fully paid, (2) Peace officers who are primarily engaged in active law enforcement activities, as defined by the Penal Code, and (3) Rescue services coordinators who work for the Office of Emergency Services.

Legislation Regarding Franchises

Fast Food Accountability and Standards Recovery Act (or FAST Recovery Act): AB 257

This bill, initially introduced in January of 2021—the first year of the regular session—has been carried over.  It has already passed the lower chamber, and is onto the Senate Judiciary Committee for additional consideration. The bill would establish the Fast Food Sector Council, responsible for creating a fast food workers bill of rights, which would address issues related to wages, working conditions, etc. This onerous bill would require franchisors to ensure franchisee compliance with a variety of employment, worker, public health and safety laws, including those related to unfair business practices, general liability, employment discrimination, the California Retail Food Code, a range of labor regulations, and emergency orders.

The bill also would establish joint and several liability for franchisee non-compliance. The bill would nullify any potential work around by prohibiting any waiver or indemnity provisions. Finally, while the bill would, for the most part, be enforced through the DLSE, ominously, it would afford franchisee employees a private right of action for retaliation against franchisors.

Franchise Sales, Renewals, and Discrimination: AB 676

This is a bill intended to fill some ambiguities that arose after the enactment of AB 525 (Holden), which purportedly offered relief to franchisees. This measure would prohibit discrimination against franchisees, in much the same way that FEHA currently prohibits discrimination against employees. Specifically, the bill would prohibit a franchisor from failing or refusing to grant a franchise, or failing or refusing to provide financial assistance, to a franchisee or prospective franchisee that has been granted or provided to other similarly situated franchisees or prospective franchisees based solely on any characteristic of the franchisee or prospective franchisee, or any characteristic of the composition of the neighborhood or geographic area where the franchise is located or the proposed franchise would be located if that characteristic is protected by the Unruh Civil Rights Act. This would confer protected status based on sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.

The bill proposes a number of modest reforms, such as clarifying the accounting and payment processes that are applicable when a franchise relationship ends, and clarifying that a franchisee cannot be forced to waive various rights under the law either in a franchise agreement or as a condition of receiving emergency financial assistance. Additionally, the bill provides that the Commissioner of the Department of Financial Protection and Innovation may summarily revoke a franchise seller’s registration if the Commissioner finds: (a) there has been a failure to comply with any of the provisions of this law; (b) an offer or sale of the franchise would constitute misrepresentation, fraud, or deceit of the purchasers; (c) an applicant has failed to comply with any rule or order of the commissioner; or, (d) any person identified in the application or any officer or director of the franchisor creates an unreasonable risk to the prospective franchisee.

Privacy / Worker Information

Reporting and Publicizing Salaries and Wages: SB 1162

The California Chamber of Commerce has listed this measure as a “job killer.”

This bill expands upon SB 973 from 2020 (Jackson)—summarized in detail by Seyfarth—which required that employers with 100 or more employees provide the Department of Fair Employment and Housing (“DFEH”) with specified EEO-1 pay data. This measure would expand that requirement to include an employer that has 100 or more employees including those hired through labor contractors.

One of the biggest saving graces to SB 973 for the business community was that the pay data employers were forced to turn over was for the DFEH only, and was not to be made public. Indeed, the measure specifically exempted such data from coverage under the California Public Records Act and considers confidential any individually identifiable information disclosed to the DFEH under these provisions. SB 1162 would make all of that data public.

The bill additionally would require that all employers provide, in a job posting for an open position, the pay scale for that position, and must provide to an employee the pay scale for the position a person is currently employed in, upon request. The measure would permit an aggrieved worker to file a written complaint with the Labor Commissioner within one year after the date the worker learned of the failure to comply with the above requirements and levies a fine of between $100 and $10,000 per violation.

The Senate Committee on Appropriations held a hearing and passed the measure out of committee on May 19, 2022, with amendments to (1) delay publication of DFEH reports by 1 year, (2) exempt businesses with less than 15 employees, and (3) remove Section 3, which required posting all available internal jobs.

Leave / Accommodations / Retaliation

Bereavement Leave: AB 1949

This bill would amend the California Family Rights Act (“CFRA”) to prohibit an employer from denying a request from an employee with at least 30 days of active service to take up to five days of bereavement leave upon the death of a family member, defined as spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. While the days of bereavement leave need not be taken consecutively, the allotted leave must be completed within three months of the date of death of the family member. If the employer does not have a paid bereavement policy, the leave would be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

The bill also would allow the employer to require documentation of the death of the family member, which can be in the form of a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency. The bill would prohibit retaliation for requesting bereavement leave.

Cannabis: AB 2188

The Chamber of Commerce has also labeled this measure a “job killer.” This bill would amend the FEHA by adding off-the-job cannabis use as one of the characteristics protected by the FEHA, which would greatly expand potential monetary exposure through litigation for California employers.

The bill would not prohibit a company from administering a drug test that detects the active presence of THC in an employee’s or prospective employee’s bodily fluids only. But, it would prohibit discrimination against an individual for a positive cannabis test, which the bill contends is unrelated to impairment on the job. The bill would also permit an employer to administer a performance-based impairment test, and terminate the employment of an employee who is determined to be impaired by cannabis on the property or premises of the place of employment.

This provision would not apply to employees in building or construction trades, and it would not preempt state or federal laws requiring employees to be tested for controlled substances.

State of Emergency and Emergency Conditions: SB 1044

This bill provides that, in the event of a natural disaster, emergency condition, or state of emergency, an employer may not: (1) take or threaten adverse action against an employee for refusing to report to or leaving a workplace because they feel unsafe; or (2) prevent an employee from accessing their mobile device for use for emergency purposes. While the definition of a State of Emergency is pretty apparent, the existence of an “emergency condition” is less clear. The bill defines “emergency condition” as either: (1)  conditions of disaster or extreme peril to the safety of persons or property at the workplace caused by natural forces or a criminal act; or (2) an order to evacuate a workplace, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.

Recent amendments require the employee to notify the employer of the state of emergency or emergency condition before benefiting from the bill’s provisions, and narrow the definition of state of emergency to require that the emergency poses an imminent and ongoing risk of harm to the worker, the worker’s home, or the worker’s workplace. Regardless, though, the bill would still allow employees to leave work, or refuse to come to work, if the employee subjectively feels unsafe.

Notably, the bill would exclude a health pandemic from a covered state of emergency. It also would exclude from its coverage any employees who are first responders, disaster service workers, healthcare or patient care workers, utility and roadside assistance workers, as well as a number of other categories of essential personnel.

An employer who disciplines an employee for leaving the workplace during an emergency, or prevents any employee from accessing the employee’s mobile device, could be subject to a private lawsuit and penalties under the Private Attorneys General Act (PAGA). A recent amendment, however, added a right to cure for employers, in keeping with worker safety concerns.

Labor

Agricultural Labor Relations: AB 2183

This bill entitles a labor organization to access an employer’s employee list from the Agricultural Labor Relations Board upon providing written notice to the appropriate regional office of the Board that it intends to organize the agricultural employees of the same employer, accompanied by proof of service of the notice upon the employer. The bill attempts to limit the reach of this provision by providing that an employer need not provide more than one employee list within a 30-day period.

As an alternative procedure to the polling place election process set forth in Section 1156.3 of the Labor Code, the bill would permit a labor organization to be certified as the exclusive bargaining representative of a bargaining unit through a representation ballot card election, which permits a bargaining unit to summarily select a labor organization as its representative for collective bargaining purposes without holding a polling place election. The measure sets forth all the various requirements for a labor organization that applies to represent a particular bargaining unit. The Board must certify the labor organization as the exclusive bargaining representative if the board determines that the labor organization has submitted the required number of representation ballot cards and the cards meet specified criteria.

Wage and Hour

Wages, Final Payment: AB 2133

This bill would amend Section 201 of the Labor Code to reduce the amount of time to pay final wages from 72 to 48 hours in the event of a layoff of seasonal employees employed in the curing, canning, or drying of any variety of perishable fruit, fish, or vegetables.

Wage Withholdings: SB 505

This two-year measure has already passed the Senate and is on to the Assembly, but no action has been taken on this measure since June 17, 2021. This bill would provide that, prior to garnishing a public employees’ wages when the employer is required or empowered to do so by state or federal law, employers must make a good faith effort to consult with an employee to obtain a written authorization to resolve monetary obligations before employing third-party collection services. Where a written authorization provides for a withholding or diversion of an employee’s wages, the bill would prohibit the amount withheld or diverted from exceeding 5% of the employee’s monthly gross wages.

Meal and Rest Periods for Public Hospital Employees: SB 1334

This measure would extend to employees of specified public sector employers who provide direct patient care or support direct patient care in a general acute care hospital, clinic, or public health setting the same statutorily required meal and rest break afforded to employees in the private sector. That is, these employees would be statutorily entitled to one unpaid 30-minute meal period on shifts over 5 hours and a second unpaid 30-minute meal period on shifts over 10 hours, as well as one 10-minute paid rest period for every 4 hours worked or major fraction thereof. The same premium pay of one hour of pay at the employee’s regular rate of compensation for each workday that a meal or rest period that is not provided would also be required. Workers covered by a CBA would be exempted.

Private employers across California have long dealt with these kinds of claims in the class and PAGA context—be wary public sector employers!

A Slew of Workers’ Compensation Bills

Liability Presumptions: SB 1127

This bill has three main thrusts: (1) reducing the time period for an employer to reject liability for an injury from 90 days to 45 days; (2) for certain first responders, increases the penalty to five times the amount of the delayed benefits, but not to exceed $100,000, when liability is unreasonably rejected by an employer; and (3) doubles the duration of temporary disability for cancer presumption claims for those same first responders. The Workers’ Compensation Appeals Board would have exclusive jurisdiction to determine whether the rejection of liability is reasonable. As expected, this measure is supported by labor and opposed by the business community.

Requests for Information: AB 399

This bill, or the Medical Provider Network Transparency Act of 2022, as introduced would have solely authorized an employee alleging an on-the-job injury to request the medical provider network name and identification number. The measure underwent a significant gut and amend in the Senate Committee on Labor, Public Employment and Retirement on May 23, 2020.

As amended, for purposes of the workers’ compensation system, this bill would provide that if an independent bill review organization—existing law permits a medical provider to request an independent bill review for disputes relating to the amount of payment and authorizes the imposition of fees for this purpose—finds that an employer owes the medical provider, the bill would require the independent bill review organization to bill the employer for the additional review fees. If the employer is found to not owe the medical provider, the bill would require the independent bill review organization to bill the provider for the additional review fees. Employers would be required to pay any additional amounts found owed within 30 days of the final determination.

Disability Payments: AB 2148

The bill would extend until January 1, 2024, a current law that permits employers to commence a program under which disability payments are deposited in a prepaid card account.

Labor Contracting: AB 2614

Would require a “client employer” that is subject to Industrial Wage Commission (IWC) Orders Nos. 1 or 7—manufacturing and mercantile industries—to procure independently of any labor contractor, a valid workers’ compensation insurance policy for any contracted workers providing labor within its usual course of business. A “client employer” is defined as a business entity, regardless of its form, that obtains or is provided workers to perform labor within its usual course of business from a labor contractor. The stated intent of this legislation is to ensure that all contracted workers of labor contractors performing labor within a client employer’s usual course of business are covered by a valid workers’ compensation insurance policy.

This measure was inspired by a recent string of workers’ compensation fraud by operators of staffing agencies (also known as labor contractors) who are providing services to employers. According to the author, “AB 2614 will close a loophole in state law that allows companies with poor worker safety records to utilize staffing companies to avoid paying the financial costs associated with the companies’ safety records.”

Hospital Employees: SB 213

This is a two-year bill that has already passed the Senate and is now being held by the Assembly. The California Chamber of Commerce has tagged this bill as a “job killer.” This measure would build upon SB 1159, which Seyfarth summarized here, which created two presumptions: one that is specific to frontline workers (peace officers, firefighters, healthcare providers, homecare workers and IHSS workers), and a general presumption for employees who contract COVID-19 in the midst of a workplace outbreak. Of import to SB 213 is the former, which applied to health care workers.

This bill would create rebuttable presumptions within the workers’ compensation system that specified infectious diseases such as COVID-19, cancer, musculoskeletal injury, post-traumatic stress disorder, or respiratory disease are occupational injuries for a direct patient care workers employed in an acute care hospital. This presumption would be extended following termination of employment for a period of three months for each full year of employment, not to exceed 60 months. SB 213 also removes the sunset date of the presumption for COVID-19 for direct care workers in an acute care hospital by including the presumption in a different code section.

Miscellaneous Employment Bills

Call Centers: AB 1601

This bill would require an employer of employees in a call center that intends to relocate from this state to notify the Labor Commissioner at least 120 days before the relocation. The bill would authorize the Labor Commissioner to impose a civil penalty of up to $10,000 for every day that an employer fails to provide this notice. The Labor Commissioner would be required compile a list of employers that provide the requisite notice and employers appearing on the list would be ineligible to be awarded or have renewed state grants or state-guaranteed loans for 5 years after the date that the list is published, and those companies would be ineligible to claim tax credits for 5 taxable years beginning on and after the date that the list is published. Private entities that have contracted with the state for call center services as of January 1, 2023, must ensure that a certain percentage of services are performed in California.

Background Checks: SB 1262

This bill was inspired by the California Court of Appeal decision in All of Us or None of Us. v. Hamrick, which held that an individual’s date of birth and driver’s license number could not be used as data identifying a criminal defendant in public records. This caused courts around the state to redact birth dates and driver’s license numbers from their indexes, making routine background checks much more difficult. This bill would require publicly accessible electronic indexes of defendants in criminal cases to permit searches and filtering of results based on a defendant’s driver’s license number or date of birth.

Extending Statute of Limitations: AB 2777

The concerning measure would amend the Code of Civil Procedure to permit a putative plaintiff, from January 1, 2023, to December 31, 2023, to press a cause of action in court based on sexual assault or “other inappropriate conduct,” regardless of whether that claim would be barred by the applicable statute of limitations, so long as the actions occurred on or after January 1, 2009. Essentially, this would mean that a putative plaintiff may bring one of a number of vaguely-defined claims, regardless of how stale those claims are, from January 1, 2023, to December 31, 2023. This is despite the fact that AB 1619 (Berman – 2018), already provides for a lengthy ten-year statute of limitations for claims relating to a sexual assault.

Moreover, claims that would be brought under this bill can be “revived” during the free for all period include all claims seeking more than two hundred fifty thousand dollars ($250,000) in damages “arising out of a sexual assault or other inappropriate contact, communication, or activity of a sexual nature that would otherwise be barred before January 1, 2023,” but the statute does not endeavor to define what constitutes “activity of a sexual nature.”

An aggrieved employee or former employee can only bring suit against an employer—essentially defined as sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity—where the putative plaintiff alleges that the employer engaged in a cover up or attempted a cover up of a previous instance or allegations of sexual assault or other inappropriate conduct, communication, or activity of a sexual nature.

The measure does try to place some guard-rails, but not enough, on the strikingly broad provisions summarized above—AB 2777 requires an attorney to provide a certification to the court after filing a complaint that: (1) they believe a cover-up or attempted cover-up took place; (2) that they had the victim interviewed by a mental health practitioner, who finds a “reasonable basis to believe” that “sexual assault or other inappropriate conduct, communication, or activity” took place; and (3) that the attorney believes the case is worth filing.

Two Concerning Measures Didn’t Hurdle the January Deadline

The bills below were placed on the inactive file in the summer of 2021. Those measures faced a January 31 deadline to come off the file, but the Legislature declined. As such, those measure are now dead, but it is highly likely that the substance of AB 995 comes back in another legislative form in the future.

Worker Metrics: AB 1192

This bill would have placed new onerous administrative burdens on employers by requiring them to publish extensive, private salary and benefit information on the Labor and Workforce Development Agency’s (“LWDA”) website. Public disclosure of completely lawful policies and conduct could give the false impression of wage disparity where none may exist and subject employers to frivolous litigation and settlement demands.

Paid Sick Days: AB 995

This bill would have imposed new costs and leave requirements on employers of all sizes, by expanding the number of paid sick days employers are required to provide, which is in addition to all of the recently enacted leave mandates (COVID-19 sick leave, Cal/OSHA emergency paid time off, CFRA leave, workers’ compensation, etc.) that small employers throughout the state are already struggling with to implement and comply.

Gone But Not Forgotten: Bills That Failed House of Origin Deadline

The bills below are officially dead for failure to pass before the House of Origin Deadline, but many of the measures can be introduced in a new form in the next session.

COVID-19 Vaccine Mandate: AB 1993

This bill would have added section 12940.4 to the Government Code to require each person who is an employee or independent contractor, and who is eligible to receive the COVID-19 vaccine, to show proof to the employer that the person has been vaccinated against COVID-19. By January 1, 2023, each employer in the state would have been required to affirm that each employee or independent contractor complied with these provisions, and the bill would require the employer to affirm that each new employee or independent contractor is in compliance at the time of hiring or contracting with that person.

Flexible Work Schedule: AB 1761

This bill would have enacted the Workplace Flexibility Act of 2022, which would have permitted a nonexempt employee to request an employee-selected flexible work schedule providing for workdays up to 10 hours per day within a 40-hour workweek, and would allow an employer to implement this schedule without the obligation to pay overtime compensation for hours over 8 in a workday.

Altering the Workweek, Hours and Overtime: AB 2932

This bill would have drastically altered the current 40-hours a week, 8-hours a day working paradigm we have followed in this country for decades. Instead of the current requirement that employers pay time and a half for any work above 40 hours, this bill would have required time and a half for work in excess of only 32 hours a week, and would have prohibited an employer from reducing an employee’s overall previous compensation as a result of this reduced hourly workweek requirement.

Biometric Information: SB 1189

This bill would have, beginning September 1, 2023, required a private entity in possession of biometric information—fingerprints, retina, or iris images, among others—to develop and make available to the public a written policy establishing a retention schedule and guidelines for permanently destroying the biometric information in its possession. Private entities would be prohibited from disclosing biometric information unless certain criteria are met, including where the disclosure completes a financial transaction requested or authorized by the subject of the biometric information, and from conditioning the provision of a service on the collection, use, disclosure, transfer, sale, or processing of biometric information. Perhaps the most worrisome aspect of this measure was that it would have authorized a private right of action against a private entity for violation of the measure.

Worker Metrics: AB 2095

This bill would have required employers with 1,000 or more employees in California to submit various statistics regarding those employees to the LWDA. The LWDA would then use that information to rank employers that would qualify as an employer eligible to be certified as a high-road employer, which comes with certain benefits such as procurement contracts, tax benefits, and workforce development funding. The statute did not define “high-road” employer, but rather directed the LWDA to “develop criteria and a scoring methodology” to determine what qualifies as high-road employers.

The bill would have required employers to divulge an abundance of wage and hour data, including number of workers in the U.S., median pay for all workers in the U.S., and percentage of full-time workers earning above the U.S. living wage, amongst other disclosures. Additionally, this measure would have required the agency to “publish on its internet website all worker-related statistics submitted by all employers.”

Family Responsibilities: AB 2182

A repeat of AB 1119 from last year, and labeled a job killer by the California Chamber of Commerce, this bill would have added “family responsibilities”—defined as the obligations of an employee to provide ongoing care for a minor child or a care recipient—to the list of FEHA-protected characteristics for which employers must engage in the interactive process and provide reasonable accommodation to an applicant or employee.

Gender Disparity: SB 1458

This bill would have increased the payment of disability benefits under the workers’ compensation system by the percentage of disparity in earnings between genders and would have applied prospectively to injuries occurring on or after January 1, 2023. More specifically, after determining the base amount a worker is owed, this bill would have directed the workers’ compensation administrator to add to that amount by the percentage of disparity in earnings between genders as reported by the applicant’s employer in its pay data report to the DFEH.

Licensed Manicurists – Independent Contractor Classification: AB 1818

This measure would have made permanent the exception to the ABC test for the determination of worker classification for licensed manicurists. Whether a licensed manicurist is an independent contractor or employee would have been governed by the standard established in S.G. Borello & Sons, Inc. v. Department of Industrial Relations.

Exclusivity Options: AB 2926

Some may recall AB 1385 from last year, which dealt with workers in the music and television industries. Assemblymember Ash Kalra took on a similar bill this year but it failed the House of Origin deadline. Specifically, this bill would have prohibited a contract for the exclusive personal services of a musician or actor from containing a term that includes option periods which extend more than six months (for a musician) or twelve months (for an actor) after the earlier of: (a) the satisfaction of the delivery obligation for a contract period by the musician or actor or (b) the initial commercial release of the applicable music product or the actor’s commencement of performance.

Opioids: AB 2014

AB 2014 was a spot bill with the stated intent of amending the Labor Code as it relates to Worker’ Compensation coverage for injuries caused by the opioid crisis.

Workplace Solutions

While there are some small glimmers of hope, and indeed some measures that would ease administrative burdens on employers, many of the bills that remain are worrisome for the business community. While employers should prepare for the passage of each of the measures above, the legislative session is still in its infancy, and those bill will almost certainly see significant amendments. We’ll keep you updated here at Cal Peculiarities, and you can also check out our Policy Matters podcast and newsletter for regular check-ins on California (and national) policy and legislative updates as well.

Edited by Coby Turner and Elizabeth Levy

Seyfarth Synopsis: On April 21, 2022, the Cal/OSHA Standards Board (“Board”) voted 6-1 to approve a third adoption of the Cal/OSHA COVID-19 emergency temporary standard (“ETS”). The revised ETS will likely go into effect the first week of May and will expire on December 31, 2022.

Background

As we previously blogged, the first iteration of the Cal/OSHA ETS took effect on November 30, 2020. It was initially readopted and revised on June 17, 2021, and then again (called the “second readoption”) on December 16, 2021. The second readoption, which is currently in effect is set to expire on May 6, 2022. Normally, an emergency regulation can only be readopted twice, but by Executive Order, a third readoption of the COVID-19 ETS is permitted so long as it does not extend beyond December 31, 2022.

Now that the Board has voted to approve the third readoption, which is substantively identical to the proposed rule Cal/OSHA published several weeks ago, the revised ETS will go into effect once the Office of Administrative Law completes its review and files with the Secretary of State, likely by the first week in May.

Highlights of the Revised ETS

Much of the current ETS (which we blogged about here) will remain intact. But, the proposed changes are significant for businesses and employees, and remove some requirements. Cal/OSHA has said that updated guidance in the form of FAQs is forthcoming. In the meantime, highlights of the revised ETS include:

  • Removing the definition of “fully-vaccinated” from the ETS. This is significant because it means the ETS will no longer distinguish between fully-vaccinated and not-fully-vaccinated employees. In other words, most requirements of the ETS will apply in the same manner regardless of vaccination status, including:
    • Testing Requirements: Employers will have to offer testing to all symptomatic employees, and all employees with a workplace close contact, regardless of vaccination status. Testing must be provided at no cost to the employee, and during paid working time. The only exception will be based on whether an exposed employee recently recovered from COVID-19 (see below).
    • Providing Respirators: Employers must offer respirators (e.g., N95s) to employees upon request. Now, all employees (regardless of vaccination status) are entitled to a respirator for voluntary use, free of charge, if they ask for one.
  • A new term, “returned cases,” has been added, referring to employees with naturally-conferred immunity, i.e. employees who have recovered from COVID-19 in the past 90 days and remain symptom free.
    • If such employees have had a workplace close contact, employers are not required to offer them testing. Nor are employers required to offer such employees testing if they are part of an outbreak’s “exposed group.”
  • Face coverings are no longer required for employees who are not fully vaccinated. This has been the case since February 28, 2022, when Governor Newsom issued an Executive Order overriding the ETS. The third readoption codifies that Executive Order.
  • Face coverings will still be required:
    • If the CDPH issues orders requiring them;
    • For employees who have tested positive and are returning to work before 10 days have passed since their symptoms began, or 10 days since they tested positive if they never developed symptoms; or
    • For all employees indoors in an exposed group during a workplace outbreak or major outbreak, or those outdoors who cannot maintain 6 feet of distance from others.
  • In situations where face coverings are required, but employees are exempted from wearing them, those employees will no longer need to be kept at least six feet apart from others in the workplace, however they will still need to be tested at least weekly.
  • The definition of face covering will be updated to remove the requirement that they “not let light pass through when held up to a light source.”
  • Removing static requirements for employees who had a close contact, and instead requiring employers to follow current CDPH guidance on close contacts(note these change frequently).
  • Changing the term “high risk exposure period” to “infectious period.” Substantively, the change has no impact; it simply aligns the language of the ETS with the language used by public health authorities.
  • Cleaning and disinfection requirements are removed.
  • During a major outbreak, partitions will no longer be required for exposed groups working together for an extended period but who can’t maintain distance, such as at cash registers, desks, and production line stations.
  • The definition of testing will be updated to allow for self-administered and self-read tests for purposes of return-to-work, but only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).
  • Inclusion of an explicit requirement that unredacted personal identifying information about COVID-19 cases has to be shared with the local health department, CDPH, and NIOSH immediately upon request.
    • Note that many employers have been uncomfortable sharing the breadth of information being requested by some of these entities based on employee privacy concerns, and have been wanting to redact or leave blank. The ETS now says clearly that the information must be turned over.

Workplace Solutions

Stay tuned for updated guidance and developments on the workplace safety front in California. Don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.

Edited by Elizabeth Levy

Seyfarth Synopsis: The Cal/OSHA Standards Board (“Board”) has published proposed language for the third adoption of the Cal/OSHA COVID-19 emergency temporary standard (“ETS”), which will be voted on during the upcoming April 21, 2022 Board meeting. The ETS, assuming it is readopted, will expire on December 31, 2022.

Background

The first iteration of the Cal/OSHA ETS took effect on November 30, 2020. It was initially readopted and revised on June 17, 2021, and then again (called the “second readoption”) on December 16, 2021. The second readoption is set to expire on May 6, 2022, after being extended by Executive Order. Normally, an emergency regulation can only be readopted twice, but the Governor issued an Executive Order in December 2021 permitting a third readoption of the ETS, so long as it does not extend beyond December 31, 2022.

The Board will hold a meeting on April 21, 2022, to vote on the new proposed language. In the meantime, the Board is accepting comments on the proposal, but because this is an emergency regulation, changes prior to the vote are unlikely. As with past meetings, it is expected that the Board will vote to approve and adopt the proposed third iteration of the ETS.

What’s New?

Much of the current ETS (which we blogged about here) will remain intact. But, the proposed changes are significant for businesses and employees, and will include removal of some requirements. Highlights include:

  • Removing the definition of “fully-vaccinated” from the ETS. This is significant because it means the ETS will no longer distinguish between fully-vaccinated and not-fully-vaccinated employees. In other words, most requirements of the ETS will apply in the same manner regardless of vaccination status, including:
    • Testing Requirements: Employers will have to offer testing to all symptomatic employees, and all employees with a workplace close contact, regardless of vaccination status. Testing must be provided at no cost to the employee, and during paid working time. The only exception will be based on whether an exposed employees has recently had and recovered from COVID-19 (see below).
    • Provision of Respirators: Employers must offer respirators (e.g., N95s) to employees upon request. Now, all employees regardless of vaccination status are entitled to a respirator for voluntary use, free of charge, if they ask for one.
  • A new term, “returned cases,” has been added, referring to employees with naturally-conferred immunity, i.e. employees who have recovered from COVID-19 in the past 90 days and remain symptom free.
    • If such employees have had a workplace close contact, employers are not required to offer them testing. Nor are employers required to offer such employees testing if they are part of an outbreak’s “exposed group.”
  • Face coverings are no longer required for employees who are not fully vaccinated. This has been the case since February 28, 2022, when Governor Newsom issued an Executive Order overriding the ETS. The third readoption codifies that Executive Order.
  • Face coverings will still be required:
    • If the CDPH issues orders requiring them;
    • For employees who have tested positive and are returning to work before 10 days have passed since their symptoms began, or 10 days since they tested positive if they never developed symptoms; or
    • For all employees indoors in an exposed group during a workplace outbreak or major outbreak, or those outdoors who cannot maintain 6 feet of distance from others.
  • In situations where face coverings are required but employees are exempted from wearing them, those employees will no longer need to be kept at least six feet apart from others in the workplace, however they will still need to be tested at least weekly.
  • The definition of face covering will be updated to remove the requirement that they “not let light pass through when held up to a light source.”
  • Removing static requirements for employees who had a close contact, and instead requiring employers to follow current CDPH guidance on close contacts (note these change frequently).
  • Changing the term “high risk exposure period” to “infectious period.” Substantively, the change has no impact; it simply aligns the language of the ETS with the language used by public health authorities.
  • Cleaning and disinfection requirements are removed.
  • During a major outbreak, partitions will no longer be required for exposed groups working together for an extended period but who can’t maintain distance, such as at cash registers, desks, and production line stations.
  • The definition of testing will be updated to allow for self-administered and self-read tests for purposes of return-to-work, but only if another means of independent verification of the results can be provided (e.g., a time-stamped photograph of the results).
  • Inclusion of an explicit requirement that unredacted personal identifying information about COVID-19 cases has to be shared with the local health department, CDPH, and NIOSH immediately upon request.
    • Note that many employers have been uncomfortable sharing the breadth of information being requested by some of these entities based on employee privacy concerns, and have been wanting to redact or leave blank. The ETS now says clearly that the information must be turned over.

When Will This End?

The ETS, assuming it is readopted this third time, will expire on December 31, 2022. So while much of the rest of the country moves on from burdensome COVID-19 requirements, California employers will still be under the weight of the Cal/OSHA ETS for the remainder of this year. That includes (but is not limited to) requirements to continue notifying employees any time a COVID-19 case has been onsite during the infectious period, and to continue “exclusion pay” for eligible employees with workplace exposure.

And after December 31, 2022? COVID-19 regulation in California is unlikely to disappear. Word on the street is that Cal/OSHA may seek to make the third readoption a permanent standard until it ultimately replaces it with a more general airborne infectious disease prevention standard. So don’t plan on throwing your notification templates or written COVID-19 Prevention Plan in the trash just yet.

Workplace Solutions

Stay tuned for the rapid fire developments on the workplace safety front in California. Don’t hesitate to reach out to your favorite Seyfarth attorney should you have any questions.

Edited by Elizabeth Levy

Seyfarth Synopsis: On February 28, 2022, California’s Governor Newsom issued a press release lifting California’s mask requirements for unvaccinated individuals in indoor settings, downgrading the former requirement to a strong recommendation, effective March 1, 2022.  The same day, the California Department of Public Health (“CDPH”) published updated guidance, tracking Governor Newsom’s announcement. Later on February 28, Governor Newsom issued a press release and Executive Order overriding Cal/OSHA’s COVID-19 Emergency Temporary Standards, suspending the agency’s workplace requirement that unvaccinated workers wear masks in most indoor settings. Several localities have followed suit.

Until Now, California Has Consistently Mandated Masks for the Unvaccinated Indoors Throughout the Pandemic

California’s mask-related reactions to the ever-changing COVID-19 landscape over the last two years have been well-documented here, here, here, and here.  Most recently, on December 16, 2021, Cal/OSHA readopted its COVID-19 Emergency Temporary Standards (“ETS”), effective January 14, 2022, which required unvaccinated employees to wear a well-fitted mask and also required that any additional masking required by the CDPH be enforced in the workplace. However, in response to the holiday Omicron variant surge, the CDPH required that all individuals mask up, regardless of vaccination status, from December 15, 2021 until February 15, 2022.

Mask Requirement Eased for General Public in Indoor Settings

On February 7, 2022, the CDPH updated its masking guidelines, effective February 16, 2022, allowing vaccinated individuals to shed masks but requiring unvaccinated individuals to wear masks in indoor public settings, including offices and other workplaces. This again aligned the CDPH with Cal/OSHA.

Shortly thereafter, on February 28, 2022, Governor Newsom announced California was transitioning from its longstanding practice of requiring unvaccinated individuals to mask up indoors in nearly all circumstances to a strong recommendation that they do so in most settings, effective March 1, 2022, essentially allowing all individuals to remove masks indoors, except in the workplace under the Cal/OSHA ETS.  This brought California in line with other West Coast states.  Coordinating with California, the governors of Oregon and Washington simultaneously announced that masking for the unvaccinated would no longer be required as of 11:59 pm on March 11, 2022 in the Northwest.

Following Governor Newsom’s announcement, the CDPH issued updated masking guidance.  The CDPH called attention to three main updates:

  1. Effective March 1, 2022, the requirement that unvaccinated individuals mask in indoor public settings became a strong recommendation that all persons, regardless of vaccine status, continue indoor masking;
  2. Universal masking will remain required in specified high-risk settings; and
  3. After March 11, 2022, the universal masking requirement for K-12 schools and childcare settings will end. The CDPH, however, continues to strongly recommend that individuals in these settings continue to mask in indoor settings when the universal masking requirement lifts.

Masking Still Required in High-Risk Settings.  Subject to certain exemptions, the CDPH’s masking requirement for all, regardless of vaccination status, continues in the following settings:

  • Indoors in K-12 schools (through March 11, 2022)
  • On public transit (examples: airplanes, ships, ferries, trains, subways, buses, taxis, and ride-shares) and in transportation hubs (examples: airport, bus terminal, marina, train station, seaport or other port, subway station, or any other area that provides transportation)
  • Emergency shelters and cooling and heating centers
  • Healthcare settings (applies to all healthcare settings, including those that are not covered by the State Health Officer Order issued on July 26, 2021)
  • State and local correctional facilities and detention centers
  • Homeless shelters
  • Long Term Care Settings & Adult and Senior Care Facilities

Guidance for Guest and Customer Masking. The CDPH guidance also includes suggestions for businesses, venue operators, and event hosts to assist them in navigating this new recommendation standard.  The CDPH recommends, but does not require, businesses to:

  • Provide information to all patrons, guests and attendees regarding masking recommendations for all persons, regardless of vaccine status.
  • Provide information to all patrons, guests and attendees to consider better fit and filtration for masks, such as using surgical masks or higher-level respirators (e.g., N95s, KN95s, KF94s) over cloth masks.
  • Require all patrons to wear masks, especially when risk in the community may be high, or if those being served are at high-risk for severe disease or illness.
  • Require attendees who do not provide proof of vaccination to enter indoor Mega Events to continue masking during the event, especially when not actively eating or drinking.

Now, except in specified high-risk settings, California only strongly recommends indoor mask-wearing for all Californians, regardless of vaccination status.

Indoor Mask Requirement Eased for Employees

With the issuance of the February 28, 2022 CDPH guidance, it was unclear whether or how the new masking recommendations applied to employees because the Cal/OSHA ETS continued to require masking for unvaccinated employees in the workplace, but also required compliance with any masking order from the CDPH.

Late in the evening of February 28, 2022, Governor Newsom resolved the paradox by issuing a short Executive Order that suspended the Cal/OSHA ETS requirement that unvaccinated employees wear masks while indoors or in vehicles (i.e., Section 3205(c)(6)(A)) of the ETS), effective immediately.  As a result, when the CDPH order went into effect on March 1, it lifted not only the indoor masking requirement for the unvaccinated general public, but also employees.

Importantly, other sections of the Cal/OSHA ETS that require face coverings in certain scenarios have not been suspended. Which means that for the time being, face coverings are still required in the workplace as follows:

  • If the employer has onsite indoor health screening (something that most employers have moved away from by now), the employees being screened and the screeners need to wear face coverings, regardless of vaccination status.
  • In the event of an “outbreak” or a “major outbreak,” employees in the exposed group must wear face coverings when indoors, regardless of vaccination status.
  • For employees who have had a COVID-19 exposure and are either exempt from quarantine or ending their quarantine after Day 5, and for employees who have tested positive for COVID-19 and are returning to work after Day 5. Details available here.

ETS Re-Adoption Period Extended by 21 Days to May 6, 2022

In addition, the Governor’s February 28 Executive Order extended the 90-day effective period of the operative ETS by 21 days to May 6, 2022. Employers should be on the lookout for new changes to the ETS at that time.

California Localities Follow the State

As of the time of publication, several major California cities and counties that previously had different masking requirements indicated their plans to come into line with California’s new masking recommendation:  Los Angeles County (announced a tentative plan to roll back indoor mask mandate on March 4, 2022 following the CDC’s COVID designation); Los Angeles (City) (on February 25, 2022, Mayor Garcetti tweeted that the City would align with the County’s guidance on masking); Santa Clara County (announced a plan to lift indoor mask mandate as of March 2, 2022), and San Francisco (announced alignment with State to “recommend, but not require” masks in schools and child care settings after March 11).

Workplace Solutions

As always, Seyfarth will stay on top of the constantly changing COVID-19 landscape, and the challenges it poses to employers.  If you have any questions, please don’t hesitate to reach out to one of the authors of this post or a member of our Workplace Safety team.

Edited by Elizabeth Levy