Seyfarth Synopsis: As of January 14, 2022, California employers must ensure that their COVID-19 health and safety protocols are compliant with Cal/OSHA’s Latest COVID-19 Prevention Emergency Temporary Standards. The U.S. Supreme Court’s recent ruling on the nationwide Federal OSHA ETS vaccine mandate does not impact these separate California-specific requirements, which employers must still comply with here.

Once The Rage, SCOTUS Voted To Stay Enforcement Of Federal OSHA’s ETS

As we reported, on January 13, 2022, the U.S. Supreme Court blocked Federal OSHA’s mandate slated to apply to businesses with 100 or more employees nationally. The federal mandate requires employees to either be fully vaccinated or to wear masks and take COVID-19 tests weekly, among other requirements. As you may recall, immediately after the mandate was issued, many businesses, local governments, and private interest groups fought to put the mandate on hold.

Ultimately, SCOTUS ruled that OSHA had exceeded its power because regulating overall public health was outside the agency’s authority to regulate workplace safety, and has sent the mandate challenges back to the Sixth Circuit for further litigation on the merits. Despite this ruling, U.S. Secretary of Labor Marty Walsh indicated that “OSHA will do everything in its existing authority to hold businesses accountable for protecting workers,” regardless of the litigation.

But, just because the nationwide federal OSHA mandate seems to be anything but everlasting, the beat goes on in California where the Cal/OSHA ETS is in full swing.

Cal/OSHA’s ETS Keeps Pounding A Rhythm To The Brain

SCOTUS’ recent decision regarding the nationwide OSHA mandate does not impact Cal/OSHA’s enforcement of its own COVID-19 Prevention Emergency Temporary Standards (“ETS”)  ETS, and California employers are required to be in compliance with the newly revised ETS as of January 14, 2022.

As we reported, on December 16, 2021, the Cal/OSHA Standards Board voted to readopt the ETS with changes that took effect on January 14, 2022, and will remain in place through April 14, 2022. So, you need to make sure that your company is updating its COVID-19 Prevention Plan in line with the new guidelines, as appropriate. Some of the highlights are:

  • The definition of a “COVID-19 test” excludes tests which are both self-administered and self-read, so employers may not rely on the results of an employee’s at-home rapid test to comply with the testing requirements of the ETS.
  • “Fully vaccinated” for purposes of the ETS, includes mixing and matching of vaccines so long as the vaccines are FDA approved or listed for emergency use by the WHO (e.g. two doses of a Moderna-NIAID vaccine, and one dose of a Pfizer-BioNTech booster).
  • Testing must be provided to any workplace close contact employees, regardless of vaccination status, during paid working time and at no cost to employees.
  • Outbreak testing can’t exclude fully vaccinated employees.
  • Updated isolation and quarantine guidelines related to CDPH and CDC updates, which vary depending on vaccination status and test results, available in detail here.
  • And, in clarifying FAQs, Cal/OSHA stated that it is not banning cloth face coverings, nor do they “need to completely block out light” (as stated in the ETS itself), but rather they just need to be tightly woven fabric or non-woven material.

As a reminder of some other key provisions carried over from prior versions of the ETS, you also want to make sure your company is:

  • Documenting employee vaccination status, by checking proof of vaccination, for if/when it may be able to allow fully vaccinated individuals to remove masks indoors.
  • Providing adequate face coverings (including respirators or N95s, where required) for employees who are either unvaccinated or upon request.
  • Contact tracing cases at work, and making sure employees and others in the workplace are appropriately quarantined and/or maintaining physical distancing requirements if they have been exposed to COVID-19.
  • Providing free COVID-19 testing during paid working time to all symptomatic employees who are not fully vaccinated, regardless of work-related exposure.
  • Maintaining COVID-19 safety plans and training for employees.

In addition to complying with the ETS, California employers must follow all public health orders on COVID-19 (including local public health department orders). The most recent order from the California Department of Public Health can be found here, which importantly includes an indoor mask mandate for all employees through February 15, 2022.

La De Da—The Beat Is Different for Healthcare Workers

Though SCOTUS blocked enforcement of the Federal OSHA ETS, separately in a 5-to-4 decision, the mandate for the Centers for Medicare & Medicaid Services was allowed to take effect. As Seyfarth recently reported, this mandate requires vaccines for health care workers at hospitals and other medical facilities that participate in certain Federal programs. California is one of the many states expected to continue under the timeframes and parameters identified in the December 28, 2021, CMS Guidance for the Interim Final Rule, which requires healthcare workers to be fully vaccinated by February 28, 2022.

And, as a reminder, California’s Department of Public Health issued its own vaccine requirements for health care workers back in August 2021, and updated it on December 22, 2021, to address boosters, as described in detail here.

The CDPH vaccine requirement applies to workers who provide services or work in various types of healthcare facilities such as general acute care hospitals, skilled nursing facilities, and clinics and doctor’s offices. The CMS mandate, on the other hand, does not require boosters, and applies to health care workers at facilities participating in the Medicare or Medicaid programs.

In many cases, facilities in California will be covered by both the CDPH vaccine requirements and the CMS mandate, with some exceptions. For example, and perhaps most notably, many doctor’s offices will not be covered by the CMS mandate unless they are part of a larger hospital system, though they will be covered by the CDPH mandate.

Workplace Solutions

California employers need to ensure immediate compliance with Cal/OSHA’s ETS or risk potential citations. This includes substantial monetary penalties, sometimes five or six figures. Cal/OSHA recently posted new fact sheets (here and here) and updated its FAQ’s on the ETS for guidance as well.

Remain on the lookout for additional alerts as the landscape continues to change. Consult your Seyfarth attorney, including any member of Seyfarth’s Workplace Safety Team or Health Care Team, to ensure that your business is complying with the ever-changing COVID-19 rules and regulations.

Edited by Elizabeth Levy and Coby Turner

 

We’re sure the rush of changes happening at year end, and prepping for the holidays over the next few weeks have got you thinking: what’s on my wish list? If you could ask CalPecs Santa for anything, what would it be?

Your CalPecs editors are ready to ring in the New Year with an assortment of articles as exciting as finding a bell from Santa’s sleigh under the tree, but we’d like to know what YOU would like to see. If you have a hot topic of interest you’ve been mulling over with your cider, or a nagging issue getting more attention than Rudolph’s nose on a foggy night, please send it our way! We’ll wrap your thoughts in a bow and address them in our posts for 2022.

Please help us bring joy to the world, and contact us here with your holiday wish!

Seyfarth Synopsis: On December 16, 2021, the Cal/OSHA Standards Board voted to readopt the COVID-19 Emergency Temporary Standard (“ETS”) with changes that will take effect January 14, 2022. This readoption includes many changes to the current ETS, including an elimination of many of the current distinctions between vaccinated and unvaccinated workers.

Background

The first iteration of the Cal/OSHA ETS took effect on November 30, 2020. Under California administrative procedure, an emergency regulation can be readopted twice. The Cal/OSHA ETS was first readopted (and revised) on June 17, 2021. We’ve been blogging all along the way, and for anyone who’s missed out on the saga, you can read about it starting here.

With the December 16, 2021 second readoption, the end of the Cal/OSHA COVID-19 ETS initially appeared to be inching closer: it was expected to expire April 14, 2022 in alignment with the anticipated effective date of Cal/OSHA’s proposed permanent COVID-19 standard that would be effective for two years. However also on December 16, 2021, the Governor issued an Executive Order permitting a third readoption of the ETS, so long as it does not extend beyond December 31, 2022. Given the EO, which was surely issued at the urging of Cal/OSHA, it appears likely that Cal/OSHA will table consideration of a permanent standard and instead readopt the ETS for a third time at some point in 2022.

In the meantime, the second readoption of the ETS, with its changes from the prior two versions, is the current law of the land.

Key Changes

Highlights of the newly revised ETS include the following:

  • A new definition of “COVID-19 test.” When testing is required under the ETS, is cannot be both self-administered and self-read unless observed by the employer or an authorized telehealth proctor. Which means that employees won’t be able to simply report results of a home-test to their employer.
  • Changes to permissible types of face coverings. Despite harsh opposition from commenters, Cal/OSHA’s new standard says that permissible face coverings include surgical masks, a medical procedure mask, a respirator worn voluntarily, or a tightly woven fabric or non-woven material of at least two layers that does not let light pass through when held up to a light source (except for clear face coverings worn for accommodations purposes). This means that many of the cloth masks that have been used by employees will no longer be acceptable under this new standard—including the masks being worn by many of the stakeholders at the meeting.
  • A new definition of “fully vaccinated” that permits mix-and-match. Cal/OSHA’s new, more detailed definition, specifies that fully vaccinated means either the employee is two weeks past completion of a primary vaccine (with at least the minimum recommended interval between doses for a two-dose series), or two weeks past a second dose of any combination of two doses of a vaccine, so long as the second dose was not received earlier than 17 days after the first dose. As always, a compliant vaccine has to be FDA approved, have an emergency use authorization by the FDA, or listed for emergency use by WHO, but now Cal/OSHA also allows employees who had their vaccine administered as part of a clinical trial to be considered fully vaccinated under certain circumstances.
  • A new definition of “worksite” for purposes of COVID-19 employee notification. The revised ETS clarifies that a “worksite” does not include locations where the worker worked by themselves without exposure to other employees, or to a worker’s personal residence or alternative work location chosen by the worker when working remotely. This new definition may, in some circumstances, enable employers to forego employee notification that it would have otherwise been obligated to provide under the previous version of the ETS.
  • Testing must be provide to any workplace close contacts, regardless of vaccination status. It used to be that employers only needed to offer COVID-19 testing to unvaccinated workplace close-contacts. But now, because of the rapidly evolving virus and breakthrough cases in the workplace, Cal/OSHA will require employers to offer testing to employees, vaccinated or not, who had a workplace close contact. The only exception for close-contact testing are employees who recovered from COVID-19 in the past 90 days and are asymptomatic.
  • Different requirements around fully vaccinated and not fully vaccinated close contacts.
    • No quarantine for fully vaccinated employees, but masks and social distancing required. Fully vaccinated employees who have had close contact with a COVID-19 case still do not need to be excluded from work so long as they are asymptomatic. However, now they must wear a face covering and maintain social distance from others at the workplace for 14 days following the last date of close contact. The same is true for asymptomatic employees with close contact who have recovered from COVID-19 infection in the prior 90 days: no quarantine necessary but they must wear face coverings and be socially distanced in the workplace for 14 days.
    • Changes to quarantine requirement for not fully vaccinated employees, including a 7-day option. For employees who are not documented as fully vaccinated, a 10-day quarantine is still permitted, but only if the employee maintains six feet of distance from others at work and wears a face covering for 14 days following the last date of close contact. There’s also an option for a 7 day quarantine if the employee tests negative for COVID-19 on day 5 or after, and the employees adheres to the face covering and social distancing requirement until day 14. The 7 day option was previously limited to healthcare workers during critical staffing shortages.
  • Outbreak testing can’t exclude fully vaccinated employees. Now, in the event an employer is required to implement outbreak testing for an “exposed group” of employees, all employees regardless of vaccination status must be offered the testing.

What Else Should Employers Know?

The second readoption of the ETS did not bring any changes to the general Cal/OSHA face covering rule which says that fully vaccinated employees need not wear face coverings indoors. However, employers should be aware that on December 15, 2021, a California Department of Public Health state-wide universal indoor masking order went into effect until January 15, 2022. This means that between December 15, 2021 and January 15, 2022, employers in California will nonetheless need to require universal indoor masking, regardless of vaccination status.

Workplace Solutions

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

Edited by Coby Turner and Patrick Joyce

Seyfarth Synopsis: Starting today, December 15, 2021, Californians must again mask up in public indoor spaces, regardless of their vaccination status. California’s Department of Public Health imposed this state-wide four-week mandate to curb the spread of COVID-19 over the holidays.

In the face of the Omicron variant, California announced that it is again imposing a statewide requirement for everyone, regardless of vaccination status, to wear masks in indoor public spaces. This requirement will last at least four weeks, through January 15, 2022, at which time the California Department of Public Health (CDPH) will reevaluate whether the mask mandate should be extended.

What is an Indoor Public Space?

On December 14, 2021, California updated its Face Coverings Q&A, removing its definition of “indoor public space.” Previously, the CDPH defined a public indoor space as an indoor facility with public access (e.g., “live performances, indoor malls, movie theaters, places of worship, indoor mega events, and indoor museums”). On December 15, 2021, the FAQs were further revised to clarify that the statewide mask mandate applies to all workplaces regardless of public access to the space. The only exemption for workplaces is for a person “working alone in a closed office or room.” As a result, offices with shared spaces, such as cubicle bays and conference rooms, should adhere to the new masking requirement.

Whether Unvaccinated, Vaccinated, or Boosted, Californians Must Mask Up Over the Holidays

Under the new mandate, only the following limited categories of individuals can forgo masking:

  • People under two years old;
  • People with a medical condition, mental health condition, or disability that prevents wearing a mask;
  • People who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication; and
  • People for whom wearing a mask would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.

Pre-Existing Local Mask Ordinances Remain in Effect

Prior to the statewide mandate, some cities and counties imposed their own mask indoor ordinances. To the extent these pre-existing local ordinances imposed masking irrespective of vaccine status, the FAQs explain that these local ordinances remain in effect. In response, San Francisco, an early adopter of indoor mask mandating, updated its existing masking order on December 14, 2021, clarifying that its exemption from mask wearing for stable, fully vaccinated cohorts in offices and gyms remains in effect, despite the statewide mandate.

Holiday Travel? Don’t Forget to Test

On December 13, 2021, the CDPH also issued a travel advisory, recommending (but not requiring) that individuals traveling into California from out of state or out of the country test for COVID-19 three to five days after arrival. This recommendation may impact California employers who have employees traveling out of state over the holidays.

Workplace Solutions

Remain on the lookout for additional alerts. If the last 22 months have taught us anything, it is that public health orders can change quickly as the COVID-19 pandemic evolves. Consult your Seyfarth attorney, including any member of Seyfarth’s Workplace Safety Team, to ensure that your business is complying with the ever-changing COVID-19 rules and regulations.

Edited by Coby Turner

Seyfarth Synopsis: With the latest coronavirus variant, Omicron, detected and increasing in California, many companies may be questioning their plans to host office holiday parties. But no need to call in the Grinch just yet! We have some tips to comply with current COVID-19 guidelines, and to avoid employer liability to keep this holiday season merry and bright.

It is the most wonderful time of the year, especially because it is the first opportunity for many organizations to gather in-person and celebrate the holidays since the introduction of the COVID-19 virus and vaccines. However, with the recent discovery of the Omicron variant in California, employers ask what, if anything, has changed regarding COVID-19 protocol—and whether they should host a holiday party at all.

Can We Still Deck the Halls?

The CDC’s guidelines regarding COVID-19 remain unchanged since Omicron’s arrival. Nonetheless, employers are encouraged to stay abreast of the CDC’s guidance concerning the Omicron variant. Additionally, employers should be aware of local COVID-19 restrictions when planning their jingle-bell-rock, whether celebrating inside or outside of the workplace.

If your organization plans to have its holiday party at a third-party establishment that is indoors, you may need to consider additional restrictions depending on where you are in California. For instance, proof of vaccination requirements remain in place for anyone attending parties with indoor dining in Los Angeles and San Francisco. Note that even your company’s employees with medical or religious exemptions will be unlikely to be allowed indoors at these locations if outdoor dining options are available, so you should ensure your employees are prepared with what to expect if they are attending.

Other restrictions may exist for holiday parties held in the workplace, but will vary based on city or county. For example:

  • Many counties, including San Diego and Los Angeles, require strict compliance with the latest CDPH guidance, which now requires masking for all indoor settings irrespective of vaccination status.
  • Though San Francisco recently relaxed its face covering requirements for the fully vaccinated, these restrictions are subject to change given the unpredictable landscape, and the city confirmed that it would also require masking in indoor workplaces in line with the new state guidance.
  • With respect to mass gatherings, or indoor events with crowds of 1,000 attendees or more, cities like Pasadena and Berkeley require proof of vaccination or negative test requirements for staff and other attendees over the age of twelve.

Also, as a reminder, employers must continue to adhere to Cal/OSHA’s updated guidelines on mitigating and preventing the spread of COVID-19 in the workplace. And, in the event that an attendee does test positive for COVID-19 after the event, you should prepare the required notices to distribute to other attendees per AB 685 and Cal/OSHA guidelines.

These guidelines and other tips are detailed in Ho, Ho, Health and Safety! Keeping Workers Safe and Merry this Holiday Season.

Baby It’s Cold Outside—But Your Holiday Party Still Needs to Follow Company Rules

In addition to workplace safety rules, you don’t want to forget about workplace conduct rules at the holidays. Regarding conduct while rocking around the Christmas tree, it is important to remember that holiday parties are generally considered extensions of the workplace, meaning potential claims can arise involving allegations of sexual harassment, workers’ compensation, and negligence if an employee is injured during or after the event. So, avoid a blue Christmas and proactively consider these tips to avoid unwelcome incidents from occurring at the office holiday party and to minimize potential exposure to legal liability.

  • Circulate a workplace memo before the event to reiterate your company’s policy against sexual and other forms of harassment. Remind employees that the policy applies to their conduct at all company social events, even if they occur offsite, and that employees should always act in a professional manner.
  • Set a tone of moderation and remind employees of the company’s policy, if applicable, against the abuse of alcohol and zero tolerance with respect to the possession, use, or sale of illegal drugs. Consider limiting the number of alcoholic drinks or the time during which alcohol will be served, and limit serving alcohol well before the party ends.
  • If hosting the party at a restaurant or hiring a caterer, remind the staff that they are not permitted to serve anyone who appears to be impaired, intoxicated, or underage and to notify a particular company representative if anyone appears to be impaired.
  • Remind managers to set a professional example and designate several managers to be on the lookout for anyone who appears to be impaired or intoxicated, to assist and intervene if necessary.
  • Anticipate the need for alternative transportation and do not allow employees who have been drinking heavily to drive home. Consider compensating employees for rideshare alternatives.
  • Review your insurance policies to ensure they cover the company sufficiently, including any accidents or injuries that occur at a company event.
  • Promptly investigate any complaints that are made after the event and take any necessary remedial action for conduct that violates company policy.

Workplace Solutions

The office holiday party is an opportunity to show appreciation for your employees’ dedication and hard work, while also cultivating a sense of community altered during the COVID-19 pandemic. We suggest reviewing these tips to ensure it is a jingle-ball and to prevent potential liability in the new year.

For additional information about limiting liability at your company party or the ever-changing COVID-19 rules and regulations, please consult your Seyfarth attorney.

We wish you a safe and happy holiday season!

Edited by Coby Turner

Seyfarth Synopsis: On October 13, 2021, the San Francisco Department of Public Health issued a revised COVID-19 public health order. Of interest to many employers, the City outlined when certain businesses—such as office workspaces—may allow fully vaccinated individuals to stop wearing face covering indoors. It also outlined the vaccination benchmarks by which the City will lift the indoor universal face covering requirement altogether.

Like Tony Bennett singing his heart out about San Francisco, the City’s mayor had some big news. After the mayor teased changes last week, the SFDPH finally issued a revised public health order with two important changes to the City’s indoor face covering rules. A redline of the changes to the order is here and updated FAQs relating to the order are here.

High On A Hill, It Calls To Me—Indoor Face Covering Requirements Are Loosened

Effective October 15, 2021, the order loosens indoor face covering requirements for fully vaccinated stable cohorts in offices, vehicles used for work, indoor fitness businesses, adult lectures and classes (though not high school or grammar schools), and religious gatherings. Personnel in these spaces may drop their face coverings indoors if the business meets the City’s strict vaccination requirements.

The requirements for eliminating the indoor face coverings vary slight by business type. In offices, for example, to take advantage of the new rules, employers must ensure that:

  • All people entering the facility provide proof they are fully vaccinated;
  • No person is unvaccinated due to disability / religious exemption;
  • The only people in the office are “Personnel” of the business. “Personnel” is defined as employees, contractors and sub-contractors, independent contractors, vendors who are permitted to sell goods onsite, volunteers, and other individuals who regularly provide services onsite at the request of the business. If a visitor is present, everyone in the office space must wear a face covering, except as provided below;
  • The business controls access to the office space to ensure that all people entering are fully vaccinated. People who enter the office on an intermittent / occasional basis (i.e. delivery personnel) need not provide proof of vaccination but must wear a face covering;
  • No children under 12 are present;
  • The business has implemented at least one of the following ventilation strategies: (1) all available windows and doors accessible to fresh outdoor air are kept open as long as air quality and weather conditions permit; (2) fully operational HVAC system; or (3) appropriately sized portable air cleaners in each room; and
  • The employer has not experienced an outbreak of COVID-19 (three or more cases in a rolling 14-day period) for the past 30 days.

Above The Blue and Windy Sea, Uncontrolled Settings Still Require Masks

A Workplace With Unvaccinated Employees. If offices have onsite employees who are not fully vaccinated, the order allows offices to provide distinctive workspaces where fully vaccinated personnel may remove their masks. The FAQs make clear that these “fully vaccinated” areas must be separated by doors, walls, or distance. Employers must also control access to the spaces to exclude everyone who is not fully vaccinated. And all people must wear a mask when in common areas indoors, such as hallways, lobbies, and elevators where such access is not able to be controlled.

Further Restrictions On Non-Office Businesses. The order places slightly different requirements on other types of businesses. For instances, in addition to the above, indoor classes and “other similar gatherings” may only drop their indoor face covering requirements if the gathering does not exceed 100 people and the class is a “stable group of people” who meet together on a regular basis (e.g., no drop-ins for gym classes).

Your Golden Sun Will Shine For Me, With Acceptable Proof of Vaccination

The order does not change how businesses can verify vaccination status. The following remain acceptable as proof of vaccination: (i) the CDC vaccination card, (ii) a photo of a vaccination card as a separate document, (iii) a photo of the a vaccination card stored on a phone or electronic device, (iv) documentation of vaccination from a healthcare provider, (v) written self-attestation of vaccination signed under penalty of perjury, or (vi) a personal digital COVID-19 vaccine record issued by the State of California or similar documentation issued by another governmental jurisdiction or approved private company.

The City By The Bay Provides Some Practical Challenges

Implementation. Implementing this order may pose some challenges for employers located where little cable cars climb halfway to the stars. First, the order does not contain any flexibility for accommodations. If any onsite employee remains unvaccinated due to a religious exemption or medical accommodation, then face coverings must be worn by the entire office, unless the employer segregates all unvaccinated individuals in a separate part of the office.

Metrics for Lifting Other Face Covering Rules. Second, and perhaps of more lasting importance, the City also published the metrics for when its broader indoor face covering order will lift. The City will issue a new public health order when:

  • The case count in the City is at or below CDC level of yellow transmission for at least three weeks (i.e., fewer than 50 cases per 100,000 of population for the past seven days and less than 8% rate for positive tests over the past seven days);
  • The total number of patients hospitalized in the City due to COVID-19 is no more than 65; and
  • Either 80% of the total population in the City (including children of all ages) have received their final dose of vaccine; or 8 weeks after the FDA grants emergency use authorization of any COVID-19 vaccine for children ages 5 to 11 years.

The counties of Alameda, Contra Costa, Marin, Napa, San Mateo, Santa Clara, Sonoma and the City of Berkeley have reportedly agreed to follow a similar framework. And, in addition to San Francisco, Contra Costa is scheduled to also permit fully vaccinated groups to forego masking on November 1, 2021.

Workplace Solutions

For many businesses with employees clamoring to drop their face coverings indoors, San Francisco’s most recent public health order may raise more questions than answers. We are here to help navigate these challenges and answer your other COVID-19 related questions.

And remain on the lookout for additional alerts. If the last 18 months have taught us anything, it is that public health orders can change quickly as the COVID-19 pandemic evolves. Consult your Seyfarth attorney, including any member of Seyfarth’s Workplace Safety Team, to ensure that your business is in compliance with the ever-changing COVID-19 rules and regulations.

Edited by Coby Turner

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

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

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

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

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

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

Approvals

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

SB 331 also amends Section 12964.5 of the Government Code (enacted by SB 1300 of 2018) so that employers implementing non-disparagement agreements as a condition of employment (or in a separation agreement) will need to carve out an employee’s ability to discuss conduct the employee has reason to believe is unlawful. Specifically, it requires provisions restricting employees’ ability to disclose information related to conditions in the workplace to state: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.” The bill also adds a provision specifically stating that any agreement or document violating the above provisions is contrary to public policy and unenforceable. These provisions do not prohibit inclusion of a legally-valid general release or waiver of all claims in a separation agreement, and requires employers offering agreements related to separation to notify the employee that he/she has a right to consult with an attorney, and provide at least five days within which to do so. Like its predecessors, the bill authorizes provisions prohibiting disclosure of the amount paid in a severance or settlement agreement, as well as an employer protecting its trade secrets, proprietary information or confidential information that are not related to unlawful acts in the workplace.

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

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

Warehouse Distribution Center Employee Quotas: AB 701, as we discussed in depth previously, among other things, adds several Labor Code sections that will require employers with over 100 California employees at a single warehouse distribution center—or with 1,000 or more California employees at multiple warehouse distribution centers—to give each nonexempt employee (including employees of third-party employers, temporary services, or staffing agencies) a written description of any quota that applies. This notice is to include (1) the number of tasks to perform or materials to produce or handle, (2) the relevant time period, and (3) any potential adverse employment action that could result from a failure to meet the quota. This written description must be provided upon hire, or within days of the January 1, 2022 effective date.

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

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

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

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

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

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

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

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

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

Expansion of OSHA Citation Authority: SB 606 will radically increase Cal/OSHA’s enforcement power by establishing two additional categories of violations for which Cal/OSHA can issue citations: (1) “Enterprise-wide Violations” and (2) “Egregious Violations,” both of which we previously summarized in detail. The California Chamber of Commerce initially designated SB 606 a job killer, but removed the bill from the list after amendments removed a provision that would have created a rebuttable presumption of retaliation if an employer were to take adverse action against an employee within 90 days of the employee taking any of a number of actions, such as disclosing a positive COVID-19 test or diagnosis of a communicable disease or reporting a possible violation of an OSHA standard.

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

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

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

COVID SPSL (Now-Expired) Extension: As discussed in detail here, SB 95 was a budget trailer bill that—effective immediately upon its April 16, 2021 signing, and retroactive to January 1, 2021—extended COVID-19 supplemental paid sick leave (SPSL) to September 30, 2021 for employers with over 25 employers. The law provided an annual allotment of up to 80 hours of available SPSL, covered persons who telework, and extended SPSL entitlements to reasons related to vaccinations and family care.

Vetoes

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

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

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

Workplace Solutions

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

Edited by Elizabeth Levy and Coby Turner

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

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

When Is It Effective?

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

What Does “Fully Vaccinated” Mean?

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

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

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

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

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

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

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

Special Rules for Medical and Religious Exemptions

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

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

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

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

Indoor Establishments Must Post Notice, Keep Records

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

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

Large Outdoor Events: Proof of Vaccination or Negative Test

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

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

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

Indoor and Outdoor: Acceptable Proof, ID Requirement

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

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

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

Venues and Persons Entirely Exempt

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

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

Fines for Violating the Ordinance

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

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

Workplace Solutions

Covered businesses must rapidly adopt and adjust their COVID-19 vaccination verification procedures. Orders imposing vaccine mandates for employees are cropping up across the country and within California. California is particularly challenging because of the patchwork of local orders.

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

Edited by Liz Watson and Patrick Joyce

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

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

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

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

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

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

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

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

SB 606: Increasing Cal/OSHA’s Authority

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

The California Chamber of Commerce initially designated SB 606 a job killer, but removed the bill from the list after amendments removed a provision that would have created a rebuttable presumption of retaliation if an employer were to take adverse action against an employee within 90 days of the employee taking any of a number of actions, such as disclosing a positive COVID-19 test or diagnosis of a communicable disease or reporting a possible violation of an OSHA standard.

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

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

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

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

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

AB 1506: Newspaper Distributor and Carriers AB 5 Exemption Extension

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

SB 639: Minimum Wages for Persons with Disabilities

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

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

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

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

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

Workplace Solutions

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

Edited by Coby Turner

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

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

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

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

Key Requirements and Prohibitions

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

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

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

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

Does This Apply To You?

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

What Information Do Covered Employers Have to Provide to Employees?

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

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

Consequences for Non-Compliance?

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

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

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

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

“Plain Language, Please?”

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

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

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

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

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

A Note on the Governor’s Veto of AB 616

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

Workplace Solutions

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

Edited by Coby Turner