The City of San Diego Enacts COVID-19 Related Worker Recall and Retention Ordinances

29 Sep

By Kelly D. Gemelli & Arcelia N. Magaña on September 21, 2020, Jackson Lewis

The City of San Diego enacted emergency ordinances requiring fair employment practices in response to job and economic insecurity due to the COVID-19 pandemic and stay-at-home directives.  The City of San Diego COVID-19 Building Service and Hotel Worker Recall Ordinance (“Recall Ordinance”) and the City of San Diego COVID-19 Worker Retention Ordinance (“Retention Ordinance”) went into effect immediately upon their passage on September 8, 2020. The Ordinances apply to three categories of businesses and employers that the City found have been especially impacted by the COVID-19 pandemic:

  1. Commercial Property Employer: defined by ordinance as an owner-operator, manager, or lessee, including contractor, subcontractor, or sublessee, of a non-residential property located within the geographical boundaries of the City of San Diego that employers 25 or more janitorial, maintenance, or security service employees. Only the janitorial, maintenance, and security service employees who perform work for a Commercial Property business or employer are covered by the Ordinance.
  2. Event Center Employer: defined by ordinance as an owner, operator, or manager or a privately-owned structure of more than 50,000 square feet or 5,000 seats that is used for the purpose of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the “event center’s” purpose, including food preparation facilities, ushering services, ticket taking services, concessions, retail stores, restaurants, bars, and structured parking facilities, but excludes governmental entities.
  3. Hotel Employer: defined by ordinance as an owner, operator, or manager of a residential building located within the geographical boundaries of the City of San Diego with at least 200 guest rooms that provide temporary lodging in the form of overnight accommodations to transient patrons, and may provide additional services, such as conferences and meeting rooms, restaurants, bars, or recreation facilities available to guests or the general public. A “hotel employer” also includes the owner, operator, manager, or lessee of any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services to the building.

The Recall Ordinance requires a covered employer to offer positions that become available on or after September 8, 2020, to qualified employees who were laid off on or after March 4, 2020. A laid-off employee is deemed qualified and must be offered a position – in the order of priority below – if the employee:

  1. Held the same or similar position at the same location when the employee was laid off; or
  2. Is or can be qualified for the position with the same training that would be provided to a new worker hired into the position.

If more than one laid-off employee is entitled to preference for a position, the employer must offer the position to the laid-off employee with the greatest length of service in the position and then to the laid-off employee with the greatest length of service with the employer at the employment site.

Under the Retention Ordinance, when a covered business experiences a Change in Control as defined by the Ordinance, covered employees are given preference in hiring by the successor business employer for a period of 6 months and must be retained for no less than 90 days, provided the successor employer continues operating for 90 days unless there is cause for termination (which the Ordinance does not define). Once the 90 days have elapsed, the successor employer must perform a written performance evaluation for each eligible employee retained pursuant to the Retention Ordinance.

The Ordinances will remain in effect for six months. However, they could be repealed by January 1, 2021, depending on whether Gov. Gavin Newsom signs pending Assembly Bill 3216 into law, which would provide similar worker protections statewide.

Top Work Injury Causes & What Companies Must Do

25 Sep

The annual Workplace Safety Index ranks the top 10 causes of disabling work-related injuries and we tell you how you can ensure you aren’t part of these statistics.  Liberty Mutual’s 2020 Workplace Safety Index finds that serious, nonfatal workplace injuries amounted to nearly $60 billion in direct U.S. workers compensation costs. This translates into more than a billion dollars per week spent by businesses on these injuries. In fact, the top 10 causes of workplace injuries account for more than $50 billion or 89% of the total cost.

  • OVEREXERTION INVOLVING OUTSIDE SOURCES Injuries from lifting, pushing, pulling, holding, carrying, or throwing objects accounts for 23% of the national burden when it comes to workplace injuries. TAKE ACTION: Train employees on the proper way to perform the physical tasks required on the job. Utilize equipment, instead of manual labor, when available. Ensure employees are provided breaks and rest when needed to prevent overexertion. 
  • FALLS ON SAME LEVEL Slips, trips and falls are one of the most common causes of workplace injuries indoors and outdoors. Employees are at risk for sprains, strains, lacerations or worse especially if they fall into surrounding debris that could cause further injury. TAKE ACTION: Ensure non-slip mats and rugs are in use, make good housekeeping a priority in the workplace, repair or clearly mark uneven walking surfaces and train employees on proper clean-up requirements.
  • STRUCK BY OBJECT OR EQUIPMENT When work is done at heights, large equipment is in use, or materials are stored vertically there can be a great risk for employees to be struck by falling objects or moving equipment. TAKE ACTION: All overhead materials should be stored in a secure manner. Caution signs should be used and proper PPE, like hard hats, should be in used when needed.
  • FALLS TO LOWER LEVEL Falls from heights can be from ladders, through floor holes or sky lights, from scaffolding, on stairways, from roofs or from large equipment. TAKE ACTION: Ensure all employees that work at heights have proper fall protection provided and they are trained on the use of the fall protection equipment including PFAS, guardrails or other engineered devices.
  • OTHER EXERTIONS OR BODILY REACTIONS These injuries are typically non-impact but occur when a body reacts or responds to something unexpected or has an injury due to a vigorous or strenuous effort. These injuries don’t fit into one of the other common categories. TAKE ACTION: Workplace risk assessments can help evaluate common hazards that employees may be exposed to and assist management with prevention and training opportunities.
  • ROADWAY INCIDENTS INVOLVING MOTOR VEHICLE Employees who drive for business purposes may have more opportunity to be injured in auto crashes and are also susceptible to distracted and drowsy driving. TAKE ACTION: Define safe driving policies with an emphasis on distracted, drowsy, and defensive driving. Provide employees with safe-driver training.
  • SLIP OR TRIP WITHOUT FALL Reaction injuries occur when an employee slips or trips but doesn’t fall down. The stress of the reaction to correct the body to upright can cause muscle strain, twisted ankles, or other trauma. TAKE ACTION: Place no-slip rugs near entrances/exits, make sure any uneven areas are labeled clearly (or repaired), keep all work spaces tidy and potential slippery areas around the building outside should be cleared.
  • REPETITIVE MOTIONS INVOLVING MICRO-TASKS Working on the computer or performing the same task on the assembly line day after day can strain muscles and tendons which may cause back pain, vision problems and carpal tunnel syndrome. TAKE ACTION: Employers should provide, and employees should advocate for proper ergonomic equipment and training. Employees should be encouraged to take breaks and a job rotation schedule along with cross-training could be considered.
  • TRUCK AGAINST OBJECT OR EQUIPMENT When employees unintentionally walk into equipment, walls, debris, or furniture in the workplace it is common to have head, knee, neck and foot bruising, sprains, and injuries. TAKE ACTION: Ensure good housekeeping is a priority in the workplace, walkways are designated, and potential hazards are clearly marked.
  • CAUGHT IN/COMPRESSED BY EQUIPMENT OR OBJECTS Caught-in injuries are one of the top 4 serious incidents that occur in construction and machine entanglement caught-in injuries occur most often in factory settings. TAKE ACTION: Provide protective barriers and train employees on how to recognize caught-in hazards.

CalWorkSafety & HR Is Here To Help:

NEED A FRESH IDEA FOR A SAFETY MEETING TOPIC? This Top 10 List is a great place to start. Review the entire list if you have more time and encourage discussion about the potential hazards found in your own workplace that might fall into each category.

SHORT ON TIME? Pick any one from the top 10 list that applies to your current work environment and focus on ways management and employees can prevent injuries and keep workers safe.

HERE’S THE SOLUTION: CalWorkSafety & HR greatly appreciates that our clients consistently take a “#Safety-First” approach.  

Contact your consultant or email: dondressler@calworksafetyhr.com

Achieve Business Profitability … Reduce Costs … Mitigate Risks Discover the extensive training courses we offer our clients.Contact us today – we are here to help!  

New Study Finds Dining Out Increases Chances of Catching Coronavirus

21 Sep

The report shows adults infected with the virus were more than twice as likely to report dining out in the 14 days before getting sick.

Author: David Gonzalez (KHOU)  Published: September 12, 2020

HOUSTON — Restaurants in Texas are still operating at a limited capacity under Gov. Greg Abbott’s executive order.

The restrictions are place to stop the spread of COVID-19.

However, a new study by the Centers for Disease Control and Prevention shows eating at restaurants may increase your risk of catching the virus.

For instance, restaurants have adjusted to being in business during the pandemic as best they can.

Take-out and delivery options have grown very popular but many people still enjoy dining out.

“I think people should be extraordinarily thoughtful in how they decide to go out,” Dr. Paul Biddinger, director of Emergency Preparedness Research, Evaluation and Practice program at the Harvard T.H. Chan School of Public Health said.

He added, “Of course you have to take off your mask in order to eat and that changes the protection that we’ve been recommending now for so many months. “

The report shows adults infected with the virus were more than twice as likely to report dining out in the 14 days before getting sick.

“And if they are sharing a table with people that are not part of their household, part of their close environment, they should actually be discussing risk factors, recognizing still that we think that 30-60 percent of people can transmit COVID when they have minimal or no symptoms,” Dr. Biddinger said.

He believes there may be different risks between dining indoors versus on a patio.

Most restaurants are doing what they can to protect people by limiting capacity and spacing out tables.

In a statement, the Texas Restaurant Association said the study contained a number of flaws.

Now, more than ever, it is essential that the public is able to make decisions about activities outside of their home based on complete and accurate information about the spread of coronavirus (COVID-19).

We still do not find evidence of a systemic spread of the coronavirus coming from restaurants who are effectively following our Restaurant Reopening Guidance, encouraging guests to wear masks, social distancing, and practicing good hand hygiene. In effect, the lack of a direct correlation should be evidence that, when restaurants demonstrate effective mitigation efforts, the risk is low when dining outside or inside.

Assembly Bill 685 Changes Employer Notification Requirements on COVID-19 and Enhances Cal OSHA Enforcement Abilities

By Cressinda D. Schlag & Amy P. Frenzen on September 17, 2020 -Jackson Lewis PC

On September 17, 2020, Governor Newsom signed Assembly Bill (“AB”) 685, which requires employers to provide written notifications to employees within one business day of receiving notice of potential exposure to coronavirus (“COVID-19”).  AB 685 also authorizes the Division of Occupational Safety and Health (“Cal OSHA”) to prohibit operations, processes, and prevent entry into workplaces that it has determined present a risk of infection to COVID-19 so severe as to constitute an imminent hazard. AB 685 also authorizes Cal OSHA to issue citations for serious violations related to COVID-19 without requiring the agency to comply with precitation requirements.

Notification Requirements

Current California law requires employers to report certain occupational injuries and illnesses to Cal OSHA within a prescribed period. AB 685 confirms employers must report COVID-19 cases to the agency that satisfy Cal OSHA’s definition of a serious injury or illness. To satisfy this requirement, employers must have a process for employees to report potential exposures to COVID-19, having tested positive for COVID-19, or having symptoms of COVID-19. Employers must also assess any employee COVID-19 case to determine whether reporting on the case is required under Cal OSHA regulations.

Along with notifying Cal OSHA of a COVID-19 case that meets the definition of a serious occupational injury or illness, AB 685 requires employers having notice of a potential COVID-19 exposure (e.g., individual testing positive for COVID-19 was in the workplace) provide a written notice to:

  • employees and subcontractor employees who were at the worksite when a potentially infected individual was there and may have been exposed to COVID-19 as a result; and,
  • employees’ exclusive representative, if applicable.

This notice must be provided within one business day of the employer being notified of a potential exposure and may be done in “a manner that the employer normally uses to communicate employment-related information,” such as personal service, mail, or text message. The notice should be drafted to protect employee privacy and without disclosure of personally identifiable information or personal health information. The notice should also include information on COVID-19 benefits the employee may be entitled to and the disinfection and safety plan the employer has implemented or plans to implement in accordance with guidance from the Centers for Disease Control and Prevention (“CDC”).

An employer may also need to notify its local public health department of COVID-19 cases if the number of cases the employer knows about meets the definition of a COVID-19 outbreak as currently defined by the California State Department of Public Health. Upon an outbreak, the employer must notify its local public health department within 48 hours and be prepared to provide information on the number of COVID-19 cases at the worksite, their names, occupation, and other pertinent information. Employers will then need to keep working with the local health department and provide updates on new laboratory-confirmed COVID-19 cases.

Notifications required under AB 685 do not alter or change the work-relatedness determination for COVID-19 cases under Cal OSHA regulations. AB 685 further requires that employers maintain records of written notifications for at least three years.

Enforcement Procedures

AB 685 authorizes Cal OSHA to act when, “in its opinion,” employees are exposed to COVID-19 in such a manner as to constitute an imminent hazard by:

  • Prohibiting entry or access to a worksite;
  • Prohibiting performance of an operation or process at the worksite; or
  • Requiring posting of an imminent hazard notice at the worksite.

In treating an employer’s worksite as having an imminent hazard to COVID-19, Cal OSHA must limit its restrictions on the employer’s worksite to the immediate area where the hazard was identified. In addition, Cal OSHA’s restrictions must not “materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.” These provisions will sunset on January 1, 2023. Cal OSHA regulations require a strict process for “serious violations,” in which Cal OSHA creates a rebuttable presumption of a serious violation following an inspection, which is then shared with the employer and the employer is given a chance to rebut. The employer’s rebuttal may then be used in defense of the violation in an appeal or hearing on the matter. Generally, this procedure is satisfied by Cal OSHA sending a standardized form containing descriptions of the alleged serious violation and soliciting information in rebuttal of the presumption to the employer at least 15 days before issuing the citation. For COVID-19 hazards and violations only, AB 685 streamlines this process by allowing Cal OSHA to issue a citation alleging a serious violation without requiring the agency to solicit information rebutting the presumption of a serious violation.  Accordingly, Cal OSHA would not need to notify an employer 15 days before issuing a serious violation related to COVID-19. This exemption will be repealed on January 1, 2023.

New California Law Significantly Expands Employee Entitlement to Family and Medical Leave

By Susan E. Groff and Jennifer S. Grock

September 17, 2020

California employers with as few as five employees must provide family and medical leave rights to their employees under a new law signed by Governor Gavin Newsom on September 17, 2020. The new law significantly expands the state’s existing family and medical leave entitlements and goes into effect on January 1, 2021.

Senate Bill 1383 (SB 1383) also expands the covered reasons for protected leave and the family members whom employees may take leave to care for under the law.

Expanded Eligibility to Small Employers

Under pre-existing law, employers were not required to provide family care and medical leave under the California Family Rights Act (CFRA) (Cal. Gov. Code section 12945.2), if the employee seeking leave worked at a worksite with fewer than 50 employees within a 75-mile radius. Similarly, employers were not required to provide “baby bonding” leave under the New Parent Leave Act (NPLA) (Cal. Gov. Code section 12945.6), if the employee seeking leave worked at a worksite with fewer than 20 employees within a 75-mile radius.

SB 1383 repeals CFRA and NPLA and expands the obligation to provide leave to small employers not covered before. The new law requires employers with at least five employees to provide an otherwise eligible employee with up to 12 workweeks of unpaid job-protected leave during any 12-month period for certain covered reasons. The employer must maintain and pay for the employee’s coverage under a group health plan for the duration of the leave at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of the leave.

Additional Covered Family Members and Expanded Reasons for Leave

SB 1383 also expands the covered family members and potential reasons for which an eligible employee may take leave. Under SB 1383, eligible employees may take leave to bond with a new child of the employee or to care for themselves or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner.

Under the prior CFRA statute, leave for purposes of caring for a family member was available only if the family member was the employee’s child, a parent, spouse, or domestic partner.

With the enactment of SB 1383, all eligible employees will be able to care for grandparents, grandchildren, and siblings, unlike under the prior CFRA statute.

SB 1383 contains other significant changes. It requires an employer that employs both parents of a child to grant up to 12 weeks of leave to each employee. Under pre-existing law, the employer only had to grant both employees a combined total of 12 weeks of leave.

The new law also requires employers to provide up to 12 weeks of unpaid job-protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States. Lastly, SB 1383 does not permit an employer to refuse reinstatement of “key employees” as was previously allowed by the CFRA under qualifying circumstances. Under SB 1383, employees will still need to meet eligibility requirements, including 12 months of service and 1,250 hours worked for the employer in the previous 12-month period, to qualify for family and medical leave.

Cal/OSHA Drops the Hammer on Employers and Issues COVID-19 Safety Citations

14 Sep

By: Thomas B. Song Carothers DiSante & Freudenberger LLP

Last month we forecasted that Cal/OSHA was primed to issue COVID-19 safety citations in the near future.  Low and behold those predictions have come to fruition, and just in time for the Labor Day holiday.

In a public press release issued last Friday, Cal/OSHA has cited eleven employers for failing to protect workers from COVID-19, because they “did not take steps to update their workplace safety plans to properly address hazards related to the virus.”  Civil penalties assessed ranged from $2,025 to $51,190.  

Noticeably, the investigation that resulted in the highest amount of fines being imposed was “complaint-initiated” – meaning an employee called into OSHA – versus “accident-initiated” or otherwise based on an affirmative COVID-19 illness that occurred in the workplace and was reported to OSHA by the company as a serious illness.  This is significant because it reinforces the fact that just because no actual injury or illness occurred, does not mean that Cal/OSHA will go easy on employers regarding their Injury and Illness Prevention Plan (IIPP) and COVID-19 workplace response plan.

Indeed, the $51,190 in fines most certainly stems from multiple “Serious” citations, highlighting that no actual injury or illness needs to occur in order for a serious citation to issue.  (See CDF’s Law360 article, here, discussing the low burden of proof required to establish a serious violation.)

In its press release, Cal/OSHA also highlighted how a particular employer was cited because they “did not ensure their workers were physically distanced at least six feet apart in the processing area, nor did they install Plexiglas or other barriers between the workers.”  It will be interesting to see what abatement is required by OSHA – whether that be better administrative controls and supervision, or the actual installation of physical barriers – and whether the employer will contest abatement under the “expedited” proceedings at the Cal/OSHA Appeals Board.  Regardless, depending on the extent of the hazard and the reasonableness of less-expensive and equally effective abatement methods, employers may very well have good reason to contest the abatement method prescribed by Cal/OSHA. The above news from Cal/OSHA is unwelcomed, but was also highly expected.  Employers should use this as a wake-up call to take COVID-19 precautions in the workplace seriously, and to review and update their IIPP and COVID-19 response plans as needed.

Governor Newsom Signs Bills to Support Small Businesses Grappling with Impact of COVID-19 Pandemic, Bolster Economic Recovery

Published: Sep 09, 2020- Office of Governor

AB 1577 allows small businesses to exclude PPP loans from gross income for state taxes 

SB 1447 authorizes $100 million Main Street hiring tax credit program for small businesses

SB 115 accelerates $230.5 million in state bond funding to help jumpstart construction projects 

Legislation builds on previous investments and support for California small businesses

SACRAMENTO — Today at Solomon’s Delicatessen, a small business in Sacramento, Governor Gavin Newsom alongside Senator Anna Caballero signed three bills into law to support small businesses grappling with the impact of the COVID-19 pandemic and another to jumpstart state construction projects.

“Businesses across the state have been hard hit by the COVID-19 pandemic and they need support to keep their doors open and their employees on the payroll,” said Governor Newsom. “Today, we are taking action to keep money in the hands of small businesses while expanding job opportunities for those who lost their jobs because of this virus. We have much more work to do together, but I know these bills will make a big difference for small businesses.”

California small businesses are drivers of economic growth – creating two-thirds of new jobs and employing nearly half of all private sector employees. California is home to 4.1 million small businesses, representing 99.8 percent of all businesses in the state and employing 7.2 million workers in California, or 48.5 percent of the state’s total workforce.

The COVID-19 pandemic has presented significant challenges to small businesses, employers and employees. Small Business Majority survey data found that up to 44% of businesses are at risk of shutting down. From February to April 2020, there was a 22% drop of active business owners nationwide according to data released through the Census Current Population Survey. Minority-owned businesses are disproportionately impacted: the number of active businesses owned by African-Americans dropped by 41%, Latinx by 32%, Asians by 25%, and immigrants by 36%.

“I’d like to thank Governor Newsom for signing my bill, AB 1577,” said Assemblymember Autumn Burke. “Small businesses need protection – they are taking the brunt of the economic impact created by COVID-19. The federal Paycheck Protection Program was designed to help businesses stay afloat during this crisis and AB 1577 furthers that goal by preventing surprise tax bills and easing administrative burdens for thousands of California’s small businesses.”

“For months, I have been working with my colleagues to champion small business relief and I am very proud SB 1447 has been signed into law,” said Senator Steven Bradford. “This bill will help small businesses that are working hard to persist despite COVID-19 by supporting them as they hire or re-hire employees. Small businesses are critical employers and engines of equitable job growth. This is particularly true for Minority, Women, Disabled Veteran, and LGBT business enterprises. This bill will help bring back jobs that were lost in our communities and support small businesses during this difficult period. I am proud to have worked with my legislative colleagues and the Governor on this effort.”

Governor Newsom signed three bills that will help support small businesses as they recover from the COVID-19 induced recession.

AB 1577 by Assemblymember Autumn Burke (D-Inglewood) conforms state law to federal law by excluding from gross income Paycheck Protection Program loans that were forgiven through the federal CARES Act and subsequent amendments in the Paycheck Protection Program and Health Care Enhancement Act of 2020.

SB 1447 by Senator Steven Bradford (D-Gardena), Senator Anna M. Caballero (D-Salinas) and Assemblymember Sabrina Cervantez (D-Corona) authorizes a $100 million hiring tax credit program for qualified small businesses. The hiring credit will be equal to $1,000 for each net increase in qualified employees, up to $100,000 for each qualified small business employer.

SB 115, a budget trailer bill, by the Committee on Budget and Fiscal Review appropriates $561 million in fiscal year 2020-21. This includes $411.5 million to advance economic stimulus with $230.5 million to help jumpstart construction projects.

Opened in 2019, Solomon’s Delicatessen is located at the sixth Tower Records location and named after its late founder, Russ Solomon. They closed in March after stay-at-home orders were announced. In April, they reopened for 10 weeks as a community kitchen through a $75,000 grant from Sacramento Covered and healthcare foundations (Kaiser, Dignity, Sutter) to help feed the homeless and medically fragile. They also participated in California’s Great Plates Delivered program. Small businesses support is critical to ensure Californians are connected to the resources they need to pivot and adapt to the COVID-19 marketplace. The state is using every tool at our disposal to support small businesses as they work to safely reopen and recover from this public health crisis. Learn more here.

COVID-19 and the Local Ordinance Landscape: Looking Ahead to 2021

September 10, 2020 | From HRCalifornia Extra

by Bianca N. Saad, J.D.; Employment Law Counsel/Subject Matter Expert, CalChamber

Since the COVID-19 pandemic began, we’ve seen numerous changes to all aspects of life — and employment law is no different, with things like federal and state emergency paid sick leave (EPSL), and a patchwork of state guidance around how businesses can safely reopen and maintain a safe and healthy workplace for employees.

As if all that wasn’t enough, several cities and counties throughout California have passed their own laws to address various COVID-19-related circumstances, largely aimed at protecting workers and, in turn, slowing the virus’ spread.

Following is a recap of various COVID-19 ordinances that have passed this year.

FFCRA Recap

The federal Families First Coronavirus Response Act (FFCRA) took effect on April 1, 2020, and has two separate components:

  • Up to 80 hours EPSL, which is provided to all employees based on five potential qualifying reasons related to COVID-19 and paid out at either 100 percent or two-thirds of the employee’s regular rate of pay, depending on whether the employee is using the leave for themselves or to care for someone else; and
  • Up to 12 weeks of Expanded Family and Medical Leave (E-FMLA) to care for a child whose school or place of care is closed or childcare provider is unavailable due to COVID-19-related reasons, 10 weeks of which are paid at two-thirds the employee’s regular rate of pay.

Because the FFCRA only covers employers with 499 or fewer employees nationally, ultimately excluding larger employers with 500 or more employees nationally, several localities passed their own local emergency paid sick leave ordinances (also referred to as supplemental sick leave ordinances) in an attempt to fill the gap left by the EPSL provisions, and to provide additional sick leave to employees working for larger organizations.

Emergency Paid Sick Leave Ordinances

Currently, all ordinances will remain in effect through December 31, 2020, (the same sunset date as the FFCRA) and some include the option to extend and/or automatically align with any extension made to the FFCRA, though none is foreseen at this time.

The city of Los Angeles started the trend in early April, followed by San Jose, San Francisco and unincorporated Los Angeles County in the same month. In May, we saw similar ordinances take effect in Oakland and Long Beach.

Most recently, Santa Rosa, unincorporated San Mateo County and unincorporated Sonoma County have all joined the list — as did the city of Sacramento, whose ordinance goes a bit further. Not only does it provide supplemental sick leave to employees, but it also requires all Sacramento employers to implement and follow certain physical distancing, mitigation, and cleaning protocols and practices — and employees have the right to refuse to work if employers fail to meet health and safety standards.

The most important thing to keep in mind, especially for employers with employees in any of the 10 aforementioned localities, is that no two ordinances are the same. While it’s true that the ordinances generally align with the FFCRA’s EPSL provisions, many of them also provide greater benefits and protections than what’s provided federally. For example, many ordinances have added on to the list of qualifying reasons for use of the sick leave; and some localities, such as the city of Santa Rosa and unincorporated Sonoma County, have done away with an exemption for employers of health care workers who may otherwise be exempt under federal law (the definition of “health care provider” for FFCRA exemption purposes is currently unclear). Employers subject to any of these EPSL ordinances should review them carefully and work with legal counsel to ensure compliance.

The Road to COVID-19 Recovery

14 Sep

Managing your firm’s recovery from the problems and rules created during the COVID-19 pandemic is the topic of a comprehensive and fast-paced workshop being presented this Thursday, September 17th at 10:00 a.m. PST.  

Tenured presenter and trainer Pat Haley will define steps of dealing with business challenges created by COVID-19, including: ‘keeping up’ with rules; what are your employees thinking about and how you should respond them; HR Policies and Practices that will point your firm to profitability; and lastly, Pat will discuss the importance of your management leadership role. 

COVID-19 Recovery & Your Firm
Date: September 17th
Time: 10:00 a.m. PST
Presenter: Pat Haley
Topic: Managing Your Firm’s COVID-19 Recovery
Q&A to Follow the Discussion

Join ZOOM Meeting Link
Meeting ID: 6313 8260
Passcode: 1234

This is another of our series of monthly courtesy webinars presented by CalWorkSafety & HR, LLC. To Learn More – Call one of our consultants or ask for Don Dressler: 949-533-3742

IRS Issues Guidelines to President’s Payroll Tax Deferral Order

9 Sep

By CalChamber   August 31, 2020

The U.S. Department of Treasury and Internal Revenue Service (IRS) issued guidelines to President Donald Trump’s payroll tax deferral executive order on Friday night, Aug. 28.

The guidelines are available at: https://www.irs.gov/pub/irs-drop/n-20-65.pdf

President Trump signed an executive order on August 8 calling for a deferral of employees’ portion of the Social Security payroll tax from September 1 through December 31, 2020.

The executive order applies to the 6.2% Social Security payroll tax normally deducted from an employee’s pay and would affect workers whose biweekly pay is less than $4,000 on a pretax basis. The determination of whether the deferral applies is to be made on a paycheck to paycheck basis.

Employers are responsible for withholding and paying any deferred taxes. Specifically, employers “must withhold and pay the total Applicable Taxes that the [employer] deferred under this notice ratably from wages and compensation paid between January 1, 2021 and April 30, 2021 or interest, penalties, and additions to tax will begin to accrue on May 1, 2021, with respect to any unpaid Applicable Taxes.”

Unanswered Questions

The guidance leaves a number of questions unanswered, such as:

  • Is the payroll tax deferral voluntary for the employer or employee?
    The notice makes clear that the employer is the affected taxpayer. While the notice does not explicitly say it is voluntary for the employer, it also does not make it mandatory. The notice makes no mention of nor seems to contemplate the employee making the election to defer. Therefore, this would appear to be a decision left to the employer.
    What happens if an employee no longer works for an employer once the deferral is over?
  • Is the employer responsible for the unpaid taxes?
    The notice implies that the employer is responsible for the deferred taxes but provides that the deferred taxes are to be withheld from employees beginning in January. The notice goes on to state, “If necessary, the [employer] may make arrangements to otherwise collect the total Applicable Taxes from the employee.” But the notice provides no further guidance as to what this might mean. It also provides no guidance on what happens if the person is no longer an employee and the employer is unable to collect the unpaid taxes.
  • Must an employer decide by September 1 whether to defer withholding or not?
    The notice is silent on whether an employer must defer the withholding for the entire deferral period (September 1 to December 31) or whether an employer can start deferring at any point during the deferral period.

California Announces New COVID-19 Reopening Plan

Friday, August 28, 2020 | Sacramento, CA  Andrew Nixon /CapRadio

Gov. Gavin Newsom unveiled a retooled process for loosening and tightening COVID-19 restrictions Friday.

Labeled a “Blueprint for a Safer California,” the system puts California’s 58 counties into four tiers based on the number of new daily cases and the percentage of positive tests.  

“We’ve learned a lot the past few months,” Newsom said. “We’re looking now to a uniform framework.”  

The tiers are color-coded:

California Department of Public Health

  • Purple for Widespread (more than 7 daily new cases  per 100,000;  more than 8% positive tests; most non-essential indoor businesses closed)
  • Red for Substantial (4-7 daily new cases per 100,000; 5-8% positive tests; some non-essential indoor businesses closed
  • Orange for Moderate (1-3.9 daily new cases per 100,000; 2-4.9% positive tests; some business operations open with modifications)
  • Yellow for Minimal (fewer than one daily new case per 100,000; less than 2% positive tests; most business operations open with modifications).  

“We don’t put up green because we don’t believe that there is a green light that says go back to the way things were, or back to a pre-pandemic mindset,” the governor said.

A new state website allows you to look up your county and see what restrictions exist for specific industries and businesses. 

The new system allows some businesses to open statewide regardless of what tier a county is in.

Starting Monday, counties in the widespread tier may open some businesses with modifications, including all retail, shopping centers at a maximum 25% capacity, and hair salons and barbershops indoors. Restaurants can only operate outdoors under the strictest tier, but under the substantial (red) tier, they could open at 25% capacity.

Counties in the widespread tier aren’t permitted to reopen schools for in-person instruction unless they receive a waiver from their local health department for TK-6 grades. Schools can reopen for in-person instruction once their county has been in the substantial tier for at least two weeks.

The tier system replaces the state’s previous COVID-19 watch list.

California Department of Public Health

The new plan requires 21 days before a county can move to a less-restrictive tier in order to know what may be adversely affecting public health. And it features a new process for tightening up if and when conditions worsen.

Counties will also be required to provide rates of positive COVID-9 tests and test positivity data and to show they are targeting resources and making the greatest efforts to prevent and fight COVID. Until now, each of the counties had their own rules and were allowed to simply give their word to the state about critical metrics. 

Newsom said the new guidelines will allow the state to measure progress against COVID-19 in a more meaningful way. 

As of Friday, only three counties — Alpine, Modoc and Tuolumne — are in the yellow or “minimal” category. Sacramento is one of 38 counties in the purple or “widespread” tier. The state has modified the covid19.ca.gov website, allowing you to search for county-specific and business sector-specific information about what services and activities are allowable within that county’s current tier. 

Employment-Related Urgency Bills Await Governor’s Signature

HRWatchdog  September 4, 2020

Last Monday, the California legislature concluded its 2019-2020 legislative session. Several of the bills that were passed will go into effect immediately should the Governor sign them. Governor Newsom has indicated he plans to sign the following urgency measures: 

SB 1159 (Hill) — Workers’ Compensation/COVID-19

This bill establishes presumptions about whether an employee who tests positive for COVID-19 can successfully file for workers’ compensation. The bill has three key components: 

  1. Establishes a disputable presumption that an employee suffered a workplace injury if they are diagnosed with COVID-19 or test positive within 14 days after a day on which the employee worked at their place of employment (other than their own home) and that date was between March 19, 2020, and July 5, 2020. Employers have 30 days to reject the claim. Basically, codifying the Governor’s executive order for worker’s compensation. 
  2. Establishes a disputable presumption that firefighters/rescue services, peace officers, certain medical providers and providers of in-home supportive services have suffered a workplace injury if they test positive for COVID-19 within 14 days after a day on which the employee worked at their place of employment and that date worked was after July 6, 2020. The employer has 30 days to reject the claim. 
  3. Establishes a disputable presumption that an employee suffered a workplace injury if: (1) they are diagnosed with COVID-19 or test positive for COVID-19 within 14 days after a day on which the employee worked at their place of employment (which does not include their residence); (2) the date worked was on or after July 6, 2020, and 3) their employer has five employees or more and the positive test occurred during an “outbreak” at the employee’s specific place of employment. There are additional elements in the bill that define an “outbreak.” Employers have 45 days to reject a claim under this provision.

AB 2257 (Gonzalez) — Exemptions and Clarifications to AB 5

AB 2257 adds additional clarifications and exemptions to AB 5, a bill passed in 2019 that codified the Supreme Court’s decision in Dynamex Operations West Inc. v. Superior Court 4 Cal.5th 903 (2018). Dynamex held that workers should be classified as employees instead of independent contractors unless they pass the “ABC Test”. AB 5 had exempted certain jobs from the rule and many groups worked this year to add clarifications to the law as well as more exemptions. The full list of exemptions can be found here.

AB 1867 (Budget Committee) — Mediation Pilot Program and Supplemental Paid Leave for COVID-19

AB 1867 includes several provisions related to labor and employment and deals primarily with supplemental paid sick leave in relation to COVID-19. 

The bill sets up a mediation pilot program within the Department of Fair Employment and Housing (DFEH) for small business related to claims about paid family leave. It further sets forth provisions that create new requirements for employees in the food sector. For example, under the new legislation, employees working in any food facility must be permitted to wash their hands every 30 minutes and additionally as needed. The bill further codifies Executive Order N-51-20 by mandating supplemental paid sick leave for food sector workers if they’re unable to work due to any of the specified reasons relating to COVID-19. This provision applies retroactively to April 16, 2020. In addition, the bill establishes COVID-19 supplemental paid sick leave for certain employers with 500 or more employees, if the employee works outside the home. The employer must provide 80 hours of supplemental sick leave for COVID-related reasons, unless the employer has a more generous policy than required in the bill (with regard to both length of time and rate of pay) or has already provided COVID sick leave as required by federal, state or local law

‘Game Changer’ in California Coronavirus Testing to Double Capacity and Speed Up Results

31 Aug

by Ana B. Ibarra August 26, 2020 CALMATTERS

A nursing student does patient check-in and hands out requisition forms allowing patients to get their COVID-19 test results online at Cal Expo in Sacramento. Photo by Anne Wernikoff for CalMatters

In summary

Gov. Gavin Newsom announced a new deal today with a diagnostics company that he says will add 150,000 more tests a day, with results back in 24 to 48 hours.

Gov. Gavin Newsom today announced that the state will soon more than double its coronavirus testing capacity, a move that at least one legislator described as a “game changer” in the state’s pandemic response.

The state will partner with the Massachusetts-based diagnostics company PerkinElmer, which will allow the state to conduct and process an additional 150,000 tests a day with expedited test results in 24 to 48 hours. 

“We have provisions in the contract to guarantee that turnaround time,” Newsom said. 

At 150,000 tests a day, the new contract would cut down the per-test cost from the current $150-$200 to $30.

Currently, the state is processing just slightly over 100,000 tests per day with an average turnaround time of five to seven days. By some estimates, like those by scientists at the Harvard Global Health Institute, California should currently be doing upward of 220,000 tests a day to truly mitigate spread of the virus— and significantly more to suppress it.

“Each and every day is a precious day in terms of test results,” Newsom said. The longer people wait, those test results are almost useless in terms of helping stop the spread, he said.  Newsom said the state will aim to get a new laboratory facility running by Nov. 1, just in time for the peak of flu season and a possible second wave of coronavirus, when more people are likely to seek out testing. 

Extra $300 weekly unemployment benefit approved for California, but timetable is uncertain

By David Lightman Sacramento Bee:  August 22, 2020

If you need a state unemployment expert to return your call, it’s going to take four to six weeks, the director of California’s Employment Development Department told an Assembly subcommittee July 30, 2020. By California State Assembly

California will be able to pay millions of jobless residents an extra $300 a week, the state’s unemployment agency said Saturday, but there’s no estimate of when people will see that money.

The state’s Employment Development Department said its application for funding the program has been approved by the federal government. When the $300 a week is added to state benefits, it will nearly double the average California claimant’s weekly unemployment check.

Larry Kudlow, a White House senior economic adviser, said this week that overall, the money should be in bank accounts “in the next week or two.”

The US Government’s Lost Wage Assistance Program, one of the recently approved Executive Actions taken by President Trump, is on top of regular unemployment benefits. EDD announced Friday Aug. 28 that the first payments in CA will be available the week of Sept. 7, 2020.

There will be two phases of the EDD rollout.  First will be claimants who previously provided information that they were unemployed due to COVID-19, and have already received regular UI benefits during the period of July 26 to Aug. 15. The payments mean that an person receiving the average UI benefit of $287 a week will receive $587.  Persons must receive a benefit of at least $100 a week to participate in the added payment. The second phase will be for applicants who did not indicate on their original application that they were out of work due to COVID-19. Approximately 1.13 million Californians applied for benefits. EDD is so backlogged by computer and staffing problems that it has only be able to process 239,000 claims by Aug. 28.

WCIRB Submits 2021 Rate Recommendation

The Workers’ Compensation Insurance Rating Bureau on Wednesday formally recommended that the California Department of Insurance increase the advisory pure premium rate by an average of 2.6% for policies incepting on or after Jan. 1.

If approved, it would be the first rate increase since November 2014, when the state adopted a rate of $2.74 per $100 of payroll. Since then, savings from the reforms in Senate Bill 863 and subsequent fraud-fighting efforts drove a series of annual and midyear rate filings that lowered the advisory rate by more than 44% to $1.52 for policies incepting in 2020.

Rates likely would have continued to fall but for the COVID-19 pandemic.

“Absent the impact of COVID-19 claims on 2021 policies, the filing reflects a modest decrease (1.3%) in advisory pure premium rates,” the WCIRB said in a statement. “In addition to projecting the cost of COVID-19 claims to be incurred on 2021 policies, the filing also reflects the impact of the pandemic-related economic slowdown on future wage growth, claim frequency and claim severity.”

Materials presented to the WCIRB’s Governing Committee during an Aug. 12 meeting show the indicated rate would have been $1.50 per $100 of payroll if projections for COVID-19 were excluded.

Although the indicated rate is higher than the last approved rate, it would still be 13.3% lower than the industry average charged rate of $1.80 per $100 of payroll as of July 1.

Employee Training Really Matters

29 Aug

TRAINING SUCCESS STORY CPR SAVES THE DAY …
While riding home from work, three co-workers were “off the clock and off company property” when one of them began having a problem breathing and became unresponsive. The driver quickly returned to the workplace location and summoned help for the non-responsive team member. 

As it turns out the co-worker (Friend) responding to the frantic call for help had recently participated in the CalWork Safety & HR Safety Training course. After the car arrived, when Friend reached the non-responsive man, he immediately began applying the safety course protocol he had recently acquired.  

First, he checked his co-worker and found no pulse or response. By now the man’s lips had turned blue. Next, the dangerously ill man was removed from the car as another participant instructed someone to call 911. Friend then began administering CPR using rescue breaths that he had learned and practices during his CPR training course. 

After the CPR had been administered for several minutes, the non-responsive team member began shallow breathing and registered a weak pulse. Friend continued monitoring then rolled his co-worker on his side while administering CPR until 911 arrived and assumed treatment responsibility. 

The patient was taken to the hospital and was released a few hours later and monitored over the weekend. Because of the help from Friend and quick response, he returned to work the following week. 

NOTE: CalWork Safety & HR Consultant, Ralph Dorwin, was the company’s CPR class instructor. He comments: “This is my first reported example of someone who graduated from my CPR Training Course successfully used the techniques learned in class. It is most gratifying to know that the CalWork Safety & HR training courses really does make a difference for our clients!” 

But Wait … Available Training Options Are Extensive!


Yes, employee safety is a significant concern to every company … you are also required by state and federal guidelines to provide non-safety employee training courses. Our training solutions to help you do just that.
Click Here to review our complete list of Safety Training Courses.You might also benefit from the Leadership Courses brochure defining management courses covering: 

  1. Sexual Harassment Prevention
  2. Supervisor Leadership Skills
  3. Federal & State Wage & Hour Laws
  4. Dealing With Challenging Employees
  5. Problem-solving for Supervisors
  6. Employment Law for Supervisors
  7. Progressive Discipline Steps
  8. Team Building for Supervisors
  9. Employee Terminations

Achieve Business Profitability … Reduce Costs … Mitigate Risks Discover the extensive training courses we offer our clients. Contact us today – we are here to help!   Call one of our consultants or ask for Don Dressler: 949-533-3742

High Heat Warnings: How to Keep Outdoor Workers Safe

28 Aug

By Katie Culliton  August 18, 2020 33 Cal Chamber

As California experiences record-breaking temperatures — excessive heat warnings and watches have been issued throughout California, including Sacramento, the San Francisco Bay Area, Los Angeles and more — the California Division of Occupational Safety and Health (commonly known as Cal/OSHA) reminds all employers with outdoor workers to take steps to prevent heat illness.

Heat illness occurs when the body’s temperature control system is incapable of maintaining an acceptable temperature; very high body temperatures can damage the brain and other vital organs, and may eventually lead to death.

Remember, California’s heat illness prevention standard applies not only to all outdoor workers, but also to workers who spend a significant amount of time working outdoors, like security guards and groundkeepers, or in non-air-conditioned vehicles, like transportation and delivery drivers.

To prevent heat illness, all employers with outdoor workers must:

  • Develop and implement an effective written heat illness prevention plan that includes emergency response procedures;
  • Train all employees and supervisors on heat illness prevention, including the signs and symptoms of heat illness so they know when to take steps that can prevent a coworker from getting sick;
  • Provide fresh, pure, suitably cool and free drinking water to workers so that each worker can drink at least one quart per hour, and encourage workers to do so; and
  • Provide shade when workers request it and when temperatures exceed 80 degrees, encouraging workers to take a cool-down rest in the shade for at least five minutes.

Workers should not wait until they feel sick to cool down, and workers experiencing possible overheating should take a preventative cool-down rest in the shade until symptoms are gone. Employers should make sure their workers know their procedures for contacting emergency medical services, which includes directing them to the worksite if needed.

Heat Illness and COVID-19

Although employers must provide cloth face coverings or allow workers to use their own to help prevent the spread of COVID-19, it can be more difficult to breathe and harder for a worker to cool off if they’re wearing a face covering. Additional breaks may be needed to prevent overheating. In Cal/OSHA’s high-heat advisory, it recommends that workers have face coverings at all times, but the face coverings should be removed in outdoor high heat conditions to help prevent overheating as long as physical distancing can be maintained. More resources are available on Cal/OSHA’s Heat Illness Prevention webpage and the 99calor.org informational website.

COVID-19 Workers’ Comp Claims on the Rise in California

Oakland – The number of California workers’ compensation claims for COVID-19 continues to climb, as data from the Division of Workers’ Compensation (DWC) show that as of August 10, there were 9,515 claims reported for the month of July, bringing the total for the year to 31,612 claims, or 10.2% of all California job injury claims reported for accident year (AY) 2020. Those claims include 140 death claims, up from 66 reported as of July 6.

Updated figures for May and June show sharp increases in COVID-19 claims for each of those months, as the number of COVID-19 claims with June injury dates more than doubled from 4,438 claims as of July 6 to 10,528 claims as of August 10, while COVID-19 claims with May injury dates rose from 3,889 cases to 4,606 claims (+18.4%), indicating a time lag in the filing, reporting, and recording of many COVID-19 claims. Using claim development factors the California Workers’ Compensation Institute (CWCI) projects there could ultimately be 29,354 COVID-19 claims with July injury dates and 56,082 COVID-19 claims with January through July injury dates. Health care workers continue to account for the largest share of California’s COVID-19 claims, filing 38.7% of the claims recorded for the first 7 months of this year, followed by public safety/government workers who accounted for 15.8%. Rounding out the top 5 industries based on COVID-19 claim volume were retail trade (7.9%), manufacturing (7.0%), and transportation (4.7%).

The updated data is included in the latest iteration of CWCI’s COVID-19 and Non-COVID-19 Interactive Claim Application, an online data tool that integrates data from CWCI, the Bureau of Labor and Statistics and the DWC to provide detailed information on California workers’ comp claims from comparable periods of 2019 and 2020. The new version features data on 710,224 claims from the first 7 months of AY 2019 and AY 2020, including all 31,612 COVID-19 claims from AY 2020. The application allows users to explore and analyze:

· COVID-19 claim counts by month with the ability to segment and filter results by industry, region, injured worker demographics and injury characteristics;

· The volume of all reported workers’ compensation claims by industry and region; and Denial rates for COVID-19 and non-COVID-19 claims by month.

Keep Employees Safe: 7 Ergonomic Tips for Home

by Michele McGovern August 19, 2020

It’s great to work from the couch … except maybe for the aching back, tired eyes and sore neck. They’re nasty results of ergonomic sins we need to avoid.

And most brought home or picked up unsafe habits – ergonomically speaking – that have or will lead to unnecessary pain, discomfort and even injury.

More than 40% of employees work from home in some capacity since the onset of COVID-19, according to research from Stanford University.

The last thing you want is aching or injured workers who aren’t as effective or engaged.

“If you build the right culture, you can rely on what you already did well,” says Howard Spector, CEO of SimplePractice, an electronic health record and practice management software provider. “Start by taking good care of your employees and you can continue to do that under any circumstances.”

Whether work from home is temporary or long-term, employees need an ergonomically fit space. You’ll want to support healthy and safe work habits and practices at home, no matter how long they’ll be there.

Here are seven strategies to help keep employees working from home safe and healthy.

1. Make office benefits available

If employees already have ergonomically correct tools in their on-site workspace, let them get a hold of those for home.

To make sure everyone would be comfortable at home, SimplePractice gave employees time and space to go in the office and grab their chairs, keyboards and anything else that made their workspace comfortable.

You might set up a schedule so employees can be in the office alone and get items they can easily remove and adapt in their work-from-home space.

Ideally, everyone should try to replicate their workspace at home. If that means two screens, take them both home. If it’s an exercise ball for an office chair, grab it.

2. Set up computer, keyboard, mouse

If employees use a computer and keyboard primarily, it’s vital those are set up safely for comfort. If any piece – the keyboard, mouse and/or monitor – are out of whack, employees will likely end up with their necks or backs out of whack, too!

For the keyboard:

  • Position it at the edge of the desk, ideally using a palm rest for the wrists. Or get an adjustable keyboard tray to install below the desk surface.
  • Keep elbows at the side in about a 90-degree angle and shoulders relaxed while typing.

For the mouse:

  • Position it next to the end of the keyboard on the same level.
  • Add a wrist rest, if possible, so no one has to reach too far.

For the monitor:

  • Position it so the top third is eye level.
  • Stay centered directly in front of the monitor.

If employees use a laptop primarily you might want to invest in a few gadgets to make it more comfortable at a desk. You can get these for about $50 from Amazon and other retailers. Try a:

3. Set up the chair

Experts discourage people from working while sitting on a couch or easy chair … or anything other than a desk chair or one of its ergonomically correct alternatives.

Whether employees get their chairs from the office or they’re new, it’s important to make sure they’re set up well. Five keys:

  • Adjust it to a height where both feet rest firmly and evenly on the floor.
  • When seated, employees want two finger lengths between the back of their knee and edge of the seat.
  • Try to tilt your chair pan slightly forward for a comfortable slope. If the chair doesn’t have tilt capabilities, put a flat pillow across the back half of the chair for a natural tilt.
  • Adjust the seat back for a straight posture that mostly supports the space between the waist and the bottom of the shoulder blades. Or, if the seat doesn’t adjust, try a rolled-up towel to gain lumbar and back support.
  • Remove armrests if you primarily type to maintain good posture, experts suggest.

4. Light it up

Some people might say an upside of working from home is getting away from fluorescent office lighting. But home lighting has its own disadvantages: Too much natural light causes glares that lead to squinting and eye strain. Too little or ill-directed light causes strain, too.

The Occupational Safety and Health Administration suggests employees:

  • Position their desks and monitors so windows are in front of and beside their desk. If there’s only one window, employees want it positioned to their right.
  • Adjust blinds so there’s light in the room, but none directly on the monitor.
  • Use indirect or shielded lighting from lamps where possible to avoid intense lighting in the field of vision.

5. Follow the 20/20/20 Rule

Once the logistics are worked, employees need to beware of greater eye and neck fatigue. It happens because people aren’t distracted as often by colleagues and meetings. Instead, they stare at the computer for hours.

To avoid fatigue, practice the 20/20/20 Rule: For every 20 minutes of staring at the monitor, look away for 20 seconds at something 20 feet away.

6. Switch it up

Eyes aren’t the only thing that get fatigued while working for long periods at a home office computer. The body also needs a change to avoid burnout.

If possible, experts recommend changing actual work spots and positions throughout the day. For instance, employees can do a few hours at the desk. Then they might put their computers on a kitchen counter and stand for a while. Weather permitting, they can take it outside later.

7. Break away

Employees can enhance good ergonomic practices by transferring healthy elements from the office to home.

For instance, Spector of SimplePractice wanted to make sure his employees had access to physical wellness when they had to leave behind the company gym and office exercise classes.

He partnered with a fitness app to provide yoga, fitness and meditation classes to all employees. SimplePractice also hired a mindfulness coach to help employees at their convenience meditate and handle work from home stressors.

Are You In Compliance? CA Attorney General Enforcement of COVID-19 Rules

17 Aug

Some of the items that the California Attorney General’s Office is looking for include, but are not limited to the following:

PRODUCE ALL DOCUMENTS

  1. IIPP in each language available during “relevant period”
  2. COVID-19 training materials.
  3. Company COVID-19 related training records—Workers & Supervisors
  4. Policies and Procedures –have to prohibit retaliation against workers during relevant period
  5. Any policy the Company has in effect relating sending workers home or medical care when exhibiting respiratory illness, cold, or flu-like symptoms
  6. If any, to your leave policy regarding sick workers.
  7. Any other forms of leave you allow relevant to COVID-19
  8. Any notice you provide workers about the special leave benefits under FFCRA, or CA N-51-20
  9. Policies providing for penalties for taking leave or any policies providing bonuses or incentives relating to attendance during relevant period
  10. Any policies you have for notifying workers of known or suspected COVID-19 positive cases including workers and Grower’s employees
  11. Any investigation, inquiry, citation, administrative claim relating to the company, COVID-19, and workers.
  12. Any lawsuit, claim, or other action against company relating to COVID-19 & your Workers
  13. Disputes, complaints, formal or informal received by Company from your Workers relating to COVID-19.

That the company referred to or relied on answering the Investigative Interrogatories that were served concurrently with the Investigative Subpoena.

Paycheck Protection Program Loan Forgiveness Process Set to Begin August 10

On Monday, August 10, 2020, lenders may begin submitting their Paycheck Protection Program (PPP) loan forgiveness decisions to the Small Business Administration (SBA). In its July 23 Procedural Notice, the SBA laid out instructions for lender submission of PPP loan forgiveness decisions to the SBA and SBA loan forgiveness reviews.

The Procedural Notice expounded on the earlier Interim Final Rules on Loan Forgiveness of PPP Loans and SBA Loan Review Procedures and Related Borrower and Lender Responsibilities that were published in the Federal Register on June 1, 2020 (collectively, “Forgiveness Rules”). The Forgiveness Rules were subsequently amended slightly by the SBA’s June 26 Interim Final Rule (Revised Rule) to conform with the provisions of the Paycheck Protection Program Flexibility Act of 2020 (Flexibility Act), which was passed on June 5, 2020, as well as the development of the alternative PPP EZ Loan Forgiveness Application and Instructions, published on June 16, 2020.

The Procedural Notice has not changed or added much to the substantive responsibilities placed on lenders and borrowers by the Forgiveness Rules as modified by the Revised Rule. As required by the Forgiveness Rules, the Procedural Notice reiterated that the borrower must submit its forgiveness application to the lender, which is then responsible for all required forgiveness actions and will receive the forgiveness payment from the SBA. As mentioned in our May 29 client alert, this likely is a larger burden than lenders desire, especially since the Procedural Notice reaffirms that the lender is the party responsible for making the initial decision on forgiveness and communicating its decision to the SBA and the borrower.

The Procedural Notice does advise that the SBA has partnered with Goldschmitt-CRI to make available a secure software as a service (SaaS) platform (PPP Forgiveness Platform) to accept loan forgiveness decisions, supporting documentation, and requests for forgiveness payments that will be available only to PPP lenders, not to borrowers. The PPP Forgiveness Platform will provide a user interface for lenders to upload required data and documentation, monitor the status of forgiveness requests, and respond to the SBA should it select a particular loan for review.

The Procedural Notice has reiterated that a borrower may submit a Loan Forgiveness Application before the end of either the original eight-week or 24-week extended period allowed for by the Flexibility Act, provided that the borrower has, by the time of such submission, used all the loan proceeds for which the borrower is requesting forgiveness, and further provided that the borrower’s loan forgiveness application accounts for any salary reductions in excess of 25% for the full covered period. The SBA will post a link to the PPP Forgiveness Platform on its website on August 10, 2020, the date on which the SBA will begin accepting lender submissions of forgiveness applications; however, an interesting caveat — added almost as a postscript within the Procedural Notice — noted that the planned start date is “subject to extension if any new legislative amendments to the forgiveness process necessitate changes to the system.”

The Procedural Notice also requires lenders to provide a single point of contact and an email address for Authorizing Officials (AOs) who will be available to respond to SBA inquiries regarding a forgiveness application submission. All AOs currently registered in the CAFS/ETRAN system, which is the system that was used by lenders to load the PPP loans, will receive a welcome email from the SBA with instructions on how to access the new platform. According to the Procedural Notice, the email address delivering the instructions will be “PPPForgivenessRequests@SBA.gov.” Lenders should ensure that their email filters allow them to receive emails from that address. Detailed instructions on how AOs can use the PPP Forgiveness Platform will be available upon login.

If an AO does not receive a welcome email, it should contact the SBA’s PPP Lender Hotline at 833.572.0502 for instructions on how to access the PPP Forgiveness Platform. AOs will be able to add to the PPP Forgiveness Platform up to 10 additional users who will be able to submit and monitor forgiveness requests on behalf of the lender. The lender will use the PPP Forgiveness Platform to provide ACH credit information for the deposit account where the lender will receive PPP forgiveness payments, and the ACH credit information must be for an account of the lender of record. If the ACH credit information or the routing number is invalid, the lender will not receive forgiveness payments.

If a lender fails to provide a point of contact, all lender submissions will be rejected and returned to the lender. The Procedural Notice also states that lender submissions may be rejected by an initial screening process in the PPP Forgiveness Platform if they contain errors or are incomplete. If the lender submission is rejected, the PPP Forgiveness Platform will notify the lender. The lender must then correct the submission and resubmit it to the SBA, which will restart the 90-day period allowed for the SBA to remit forgiveness payments.

The Procedural Notice warns that if a lender fails to cooperate as required, the SBA may reject the lender’s submission and the lender may not receive a forgiveness payment. This appears to create at least two problems for the lender: 1) the elimination of an anticipated means for repayment of the subject PPP loan and 2) possible legal liability from its customer for damaging its forgiveness prospects. 

Before the SBA will accept the submission, lenders must confirm the following for each PPP forgiveness application:

  1. The submission accurately reflects the lender’s decision regarding the borrower’s loan forgiveness application.
  2. The information provided by the lender to the SBA with the submission accurately reflects the lender’s records for the PPP loan.
  3. The lender has made its decision in accordance with the requirements set forth in the Forgiveness Rules.
  4. The PPP loan has not been cancelled or repaid.
  5. The lender has not submitted a previous loan forgiveness decision to the SBA for that particular PPP loan, unless the application is a resubmission following a rejection or a reconsideration of a denial without prejudice.

Lenders can use the PPP Forgiveness Platform to confirm all of the above.

The Procedural Notice clarifies that when a lender submits its decision on a forgiveness application to the SBA through the PPP Forgiveness Platform, the lender must check a box indicating the decision. The choices for the lender will be:

  1. Approved in Full
  2. Approved in Part
  3. Denied
  4. Denied without Prejudice — This should be used only when an SBA loan review is pending at the time the borrower submits a loan forgiveness application.

If a lender denies a borrower’s application in full, the lender must notify the borrower in writing that the lender has submitted a decision to the SBA denying the application. The Procedural Notice adds that the SBA reserves the right to review a lender’s decision in its sole discretion, and if the SBA undertakes such a review, it will notify the lender through the PPP Forgiveness Platform. In this case, the lender must notify the borrower in writing within five business days of receipt of the notification.

Additionally, within 30 days of notice of denial from the lender, the borrower may notify the lender that it is requesting a review of the lender’s decision by the SBA. Within five days of receipt of the borrower’s request for review, the lender must notify the SBA of the request, and the SBA will notify the lender if it declines a request for review. If the SBA accepts a borrower’s request for review, it will notify the borrower and the lender of the results of the review. Presumably, for the lender, that notification will come through the PPP Forgiveness Platform, but the Procedural Notice does not say how or when that notification will occur for the borrower.

In cases where the lender selects “Approved in Part,” the Procedural Notice states that the lender must enter its own data for each line item for which it determines a different amount of forgiveness than the amount on the borrower’s application. The SBA will use the line item amounts entered by the lender to verify the calculations and facilitate the final forgiveness payment amount. However, the Procedural Notice also advises that if a lender submits to the SBA a decision that a borrower is not entitled to forgiveness in any amount, the lender must submit all required documentation and data and provide the SBA with its reason for denial.

Finally, the Procedural Notice says that if loan documentation, or any other information, submitted to the SBA indicates that the borrower may be ineligible for a PPP loan, or may be ineligible to receive the loan amount or loan forgiveness amount claimed by the borrower, the SBA will require the lender to contact the borrower in writing to request additional information. The SBA may also request additional information directly from the borrower. Most importantly, the Procedural Notice warns that a failure to respond to the SBA’s inquiry may result in a determination that the borrower was ineligible for a PPP loan or ineligible to receive the loan amount or loan forgiveness amount claimed by the borrower. Again, the credit and litigation risk for the lender in that warning is worth noting.

If an application is approved and the lender receives the remittance from the SBA of the loan forgiveness amount, the lender is responsible for notifying the borrower of the receipt. Conversely, if the SBA determines that no amount of the loan is eligible for forgiveness, the lender is responsible for notifying the borrower of that decision as well and informing them of the date on which the borrower’s first payment is due.

The Procedural Notice, like the Forgiveness Rules, fails to clarify whether the lender or borrower will receive a notification of “approval” from the SBA prior to receiving the forgiveness proceeds. Therefore, it is reasonable to assume that both may have to wait up to 90 days after an application is initially approved by the lender and submitted to the SBA before learning the ultimate fate of the loan’s forgiveness. Also consistent with the Forgiveness Rules, the Procedural Notice states that the SBA intends to issue a subsequent interim final rule that addresses the process for a borrower’s appeal of the SBA’s determination that the borrower is ineligible for a PPP loan or for the loan amount or loan forgiveness amount claimed by the borrower; there is no indication, as of now, as to whether that process will be available for those who begin submitting forgiveness applications on August 10.

As for August 10, the Procedural Notice at least signals that willing borrowers and lenders will be able to begin seeking forgiveness on that date. There does, however, seem to be some who plan to wait a little longer to see whether Congress or the SBA will ever acquiesce to those pleading for a simpler forgiveness process. The Procedural Notice does seem to allow for such a possibility by mentioning that new legislative amendments could necessitate changes to the SBA’s plans. For example, the Health, Economic Assistance, Liability Protection and Schools (HEALS) Act recently proposed by Senate Republicans calls for such simplification, including the near automatic forgiveness for loans less than $150,000. However, considering the political rhetoric aimed at the PPP recently and the difficulty Congress is having crafting legislation that can be passed by both houses and signed by the President, it is hard to predict exactly how probable that contingency will be.

Thomas E. Walker, Jr. is a partner in Jones Walker’s Banking and Financial Services Practice Group. He can be reached at twalker@joneswalker.com or 602.949.4631.

COVID-19 Communication Plan for Select Non-healthcare Critical Infrastructure Employers

Author: Michael Oliver Eckard 

On August 4, 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued a communication plan titled “COVID-19 Communication Plan for Select Non-healthcare Critical Infrastructure Employers.” The purpose of the plan is to outline actions certain critical infrastructure employers may consider to disseminate COVID-19 messages with employees more effectively. The plan suggests key messages employers may consider to inform employees and provides prepared CDC communication materials in multiple languages for use in the workplace.  Available at: https://www.cdc.gov/coronavirus/2019-ncov/community/communication-plan.html

A key recommendation in the plan is that employers should consider multiple means by which to communicate COVID-19 messages to employees and other stakeholders, such as through letters to employees, small group meetings (presumably maintaining social distancing and other mitigation measures), social media posts, onsite televisions or video monitors, text messages, and posting materials throughout the workplace in areas such as cafeterias, locker rooms, bulletin boards, restrooms, entry areas, breakrooms, and other similar locations. The CDC recommends communicating key messages to employees on a regular basis based on what is happening in the specific workplace and community. The plan contains links to helpful CDC posters, handouts, social media messaging, and videos, many of which are available in multiple languages.

With respect to the substance of employee communications, the CDC recommends focusing on two primary messages:

  • “COVID-19 has affected communities across the nation, including ours. We are working with state and local officials and CDC to protect our employees’ health.
  • Please follow safety guidelines at work, at home, and in the community to help slow the spread of coronavirus.”

[Emphasis in original.]

The plan offers suggestions regarding general messages applicable to all employees, such as the importance of staying home when sick, information regarding COVID-19 symptoms and how the disease is spread, and the importance of mitigation precautions such as social distancing and face coverings. The plan also contains tailored recommendations for communications to different categories of employees. For example, the plan offers messages for workers who are “at higher risk for severe illness,” workers who are sick with symptoms or have been diagnosed with COVID-19, managers and supervisors, and workers who may have been exposed to COVID-19.

Often, workplace safety measures are only as effective as the degree to which managers and employees take the risks and safety measures seriously. The CDC communication plan offers information that may be of interest to all employers, but, in particular, those with critical infrastructure workers may want to review the plan while considering how to augment the company’s communications practices around the issue of COVID-19.