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.

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