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LA County Changes COVID-19 Guidance

7 Jul

Corona

July 1, 2020 – Jackson Lewis LLP.

NEW- requirement to report if 3 or more employees in a workplace are identified with COVID-19

Los Angeles County has been the epicenter of COVID-19 in California, and it is only getting worse. The Los Angeles County Department of Public Health (LA Department of Public Health) recently announced that daily hospitalizations have been significantly higher than in past weeks. Accordingly, LA County released new and updated guidance to help stop the spread of COVID-19 within the workplace. The guidance includes more stringent employee screenings, requirements to report a cluster of confirmed COVID-19 cases, updates to LA County Reopening Protocols, and requirements that all employees who have regular contact with others wear a face covering or an alternative, regardless of medical conditions.

More Stringent Employee Screenings

LA Department of Public Health has released an Employee Screening form. The form requires employees who have experienced COVID-19 symptoms (defined as fever, chills, cough, shortnerss of breath, or difficulty breathing) within the past 10 days to be sent home immediately. The form otherwise follows CDC guidance in that employees should also be sent home immediately if they: (1) have an elevated body temperature greater than or equal to 100.4ºF or 38ºC or (2) have had any contact with a person with COVID-19 in the previous 14 days.

Employers Required to Report Clusters of Confirmed Cases

LA Department of Public Health has also updated the Protocol for Social Distancing. In the event that three or more COVID-19 cases are identified within the workplace within a span of 14 days, the employer should report the cluster to the LA Department of Public Health at (888) 397-3993 or (213) 240-7821. A case manager will then be assigned to guide the facility response and provide technical support, implement infection control guidances, and provide site-specific control measures. LA Department of Public Health has released a poster containing this information.

LA County Protocols Updated

LA County Reopening Protocols have also been updated to reflect the changes in the Protocol for Social Distancing. For example, the Office Workspaces guidance addresses the more stringent health screenings, the reporting of clusters of COVID-19 cases and information of face coverings, including that employees be instructed to wash their face coverings daily.

Please keep in mind that the changes in LA County protocols directly impact businesses located in the City of Los Angeles as Mayor Eric Garcetti’s “Safer L.A.” Emergency Order relies upon LA County protocols. Thus, it is very important that businesses located in LA County and the City of Los Angeles continue to monitor LA County Reopening Protocols as they are continuously updated. For example, cardrooms, satellite wagering facilities, and racetracks with onsite wagering are prohibited from allowing the consumption of food and/or beverages at gaming tables, and beaches are closed from July 3 – July 6, 2020.

Face Coverings and Medical Conditions

LA Department of Public Health also has released guidance for individuals with medical conditions who are unable to wear a face covering. In the Guidance for Cloth Face Covering, it was explained that “[i]ndividuals who are exempt from wearing a face covering due to a medical condition and who are employed in a job involving regular contact with others must wear an alternative such as a face shield with a drape on the bottom edge.”

What Employers Should Know Now

Many California localities have released guidance and provisions with the intention to reduce the spread of COVID-19. Currently, the risk of spreading the disease is exemplified in Los Angeles County and more stringent standards have been put into place.

California’s Face Mask Requirements Can Help Keep Businesses Open

Face Mask Required

Katie Culliton  June 30, 2020

It’s been almost two weeks since the California Department of Public Health (CDPH) required Californians to wear a cloth face mask when outside the home, with limited exceptions. As cases of COVID-19 rise, it’s becoming increasingly more important to wear a mask to slow the disease’s spread — and ultimately, the face mask requirement helps businesses to stay open during these uncertain times.

In response to California seeing a surge of COVID-19 cases in some counties, the CDPH required seven counties to close their bars immediately and recommended eight other counties do the same. Bars were targeted specifically because these environments lead to reduced compliance of personal protective measures, including use of face coverings, and they require raised voices, which leads to greater projection of potentially infected droplets.

The Centers for Disease Control and Prevention (CDC) reminds us that cloth face coverings help protect people around you and most likely reduce the spread of COVID-19 when they are widely used in public settings. Requiring employees and customers wear face coverings helps prevent the spread of COVID-19, which in turn keeps businesses open.

Remember, California’s June 18 Guidance for the Use of Face Coverings included that Californians must wear a face covering when engaged in work, whether at the workplace or performing work off-site, when:

  • Interacting in-person with any member of the public;
  • Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time;
  • Working in any space where food is prepared or packaged for sale or distribution to others;
  • Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities; and
  • In any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.

Individuals are exempt from these guidelines in limited circumstances. California also has industry-specific guidance on reducing the risk of COVID-19, which includes childcare, day camps, delivery services, office workspaces and real estate transactions.

Keep an eye out for updated requirements as the COVID-19 pandemic evolves.

Additional $600 Unemployment Payment Expiration Date Looms Near

Covid 19 Unemployment

By John J. Porta, Hadley M. Simonett, Keerthi Sugumaran and Carolyn A. Trotta

  • June 26, 2020 -Jackson Lewis, PC.

As businesses begin to reopen and many workers return to work, one of the main provisions of the CARES Act, signed into law on March 27, 2020, is set to expire next month. Section 2104 of the CARES Act created the federal Pandemic Unemployment Compensation (FPUC) program, which provides all individuals who receive state unemployment benefits an additional $600 per week for up to four months funded by the federal government. Created as a short-term benefit, the additional $600 FPUC benefit will expire “on or before July 31, 2020.”

The exact expiration date depends on how the state defines the unemployment benefit week. The majority of states follow a Saturday-to-Saturday or Sunday-to-Sunday benefit week for purposes of unemployment compensation. For states whose benefit week ends on a Saturday, the final week FPUC is payable is the week ending July 25, 2020. For states whose benefit week ends on a Sunday, the final payable week is the week ending July 26, 2020.

While the House of Representatives passed an extension of the FPUC benefit in the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, the bill has faced strong opposition in the Senate.

Although the FPUC benefit expires next month, the expanded benefits under the Pandemic Unemployment Assistance (PUA) program are in effect until December 31, 2020. The PUA provides workers who are ineligible for regular state benefits (such as independent contractors) unemployment benefits funded by the federal government. For more information on the PUA program and other benefits under the CARES Act, see our article, President Trump Signs Coronavirus Aid, Relief, and Economic Security Act (CARES).

Enforce Face Covering at Work

23 Jun

Masks Required

Enforce Face Covering at Work

Our clients are now reporting new instances every day where their employees are testing positive for COVID-19. On June 19th, California Governor Gavin Newsom ordered Californians to wear face coverings in most indoor settings – including offices and clients calls – and many outdoor settings. New guidance from the California Department of Public Health outlines when masks or cloth face coverings are required to assist in limiting the spread of the Coronavirus which is continuing to increase currently in California.

Do This Now! Encourage Those in Contact with Someone
Testing Positive to Get Tested – CVS Has Many Locations Where Free
Testing is Provided in LA/Orange County & Other Metro Areas
CDPH Guidance: People in CA must wear face coverings when they are in the high-risk situations below:
  • Inside of, or in line to enter, any indoor public space
  • Obtaining services from the healthcare sector in settings including, but not limited to, a hospital, pharmacy, medical clinic, laboratory, physician or dental office, veterinary clinic, or blood bank.
  • Waiting for or riding on public transportation or para transit or while
  • Masks Now Required Everywhere in a taxi, private car service, or ride-sharing vehicle
  • Engaged in work, whether at the workplace or performing work off-site, when:
    • Interacting in-person with any member of the public
    • Working in any space visited by members of the public regardless of whether anyone from the public is present at the time
    • Working in any space where food is prepared or packaged for sale or distribution to others
    • Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities
    • In any room or enclosed area where other people (except for members of the person’s own household or residence) are present when unable to physically distance.
Additionally, masks are required when operating a public transportation or paratransit vehicle, taxi, or ride-share vehicle when passengers are present and CDPH recommends then even when driving solo. Masks are also required in outdoor public spaces if six feet of physical separation is not possible.

Exemptions

Under the guidance, a face covering is not required for:
  • Persons age two years or under
  • Persons with a medical condition, mental health condition, or disability that prevents wearing a face covering. This includes persons with a medical condition for whom wearing a face covering could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a face covering without assistance.
  • Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication.
  • Persons for whom wearing a face covering would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines.
  • Persons who are obtaining a service involving the nose or face for which temporary removal of the face covering is necessary to perform the service.
  • Persons who are seated at a restaurant or other establishment that offers food or beverage service, while they are eating or drinking, provided that they are able to maintain a distance of at least six feet away from persons who are not members of the same household or residence.
  • Persons who are engaged in outdoor work or recreation such as swimming, walking, hiking, bicycling, or running, when alone or with household members, and when they can maintain a distance of at least six feet from others.
  • Persons who are incarcerated.

The Bottom Line

Existing guidelines about social distancing and frequent hand washing remain in effect.

COVID-19 continues to speed up its spreading of infection and the most important step is to have the cooperation and compliance of ALL PERSONS to limit spread by wearing face covering. Unless you stay home or are always more than six feet away from others, face covering is required and works to protect EVERYONE’s health.
CalWork Logo for Bottom Line

California Law Requires Face Masks

22 Jun

Wear Mask

CalWorkSafety clients are currently reporting new instances every day that their employees are testing positive for COVID-19.  It is now critical to enforce face coverings at work, and to encourage those who have been in contact with someone who tests positive, to get tested themselves.  Free testing is now available at many CVS locations in Los Angeles, Orange, San Diego and Inland Empire counties.

California Governor, Gavin Newsom, has ordered Californians to wear face coverings in most indoor settings, including offices and many outdoor venues.

New guidance from the California Department of Public Health (CDPH) outlines when masks or cloth face coverings are required, to assist in limiting the spread of Covid-19 that is now continuing to increase currently in California.

As reported instances of Covid-19 are currently on the rise, the most important step to take is to have the cooperation and compliance of all persons to limit the spread by wearing face coverings.  Unless staying at home or maintaining at least a distance of six feet away from others at ALL times, face coverings are required to protect everyone’s health.

CDPH guidance holds that people in California must wear face coverings when they are in the high-risk situations listed below:

  • Inside, or in line to enter, any indoor public space
  • Obtaining services from the healthcare sector in settings including, but not limited to, a hospital, pharmacy, medical clinic, laboratory, physician or dental office, veterinary clinic, or blood bank
  • Waiting for or riding on public transportation or paratransit or while in a taxi, private car service, or ride-sharing vehicle
  • Engaged in work, whether at the workplace or performing work off-site, when these situations exist:
    • Interacting in-person with any member of the public
    • Working in any space visited by members of the public, regardless of whether anyone from the public is present at the time
    • Working in any space where food is prepared or packaged for sale or distribution to other
    • Working in or walking through common areas, such as hallways, stairways, elevators, and parking facilities
    • In any room or enclosed area where other people (except for members of the person’s own household or residence) are present and when one is unable to physically distance

Additionally, masks are required when operating a public transportation or paratransit vehicle, taxi, or ride-share vehicle when passengers are present, and the CDPH recommends even when driving solo. Masks are also required in outdoor public spaces, if six feet of physical separation is not possible.

Exemptions

Under the guidance, a face covering is not required for the following persons:

  • Persons age two years or under
  • Persons with a medical condition, mental health condition, or disability that prevents wearing a face covering
    • This includes persons with a medical condition for whom wearing a face covering could obstruct breathing or who are unconscious, incapacitated, or otherwise unable to remove a face covering without assistance
  • Persons who are hearing impaired, or communicating with a person who is hearing impaired, where the ability to see the mouth is essential for communication
  • Persons for whom wearing a face covering would create a risk to the person related to their work, as determined by local, state, or federal regulators or workplace safety guidelines
  • Persons who are obtaining a service involving the nose or face for which temporary removal of the face covering is necessary to perform the service
  • Persons who are seated at a restaurant or other establishment that offers food or beverage service, while they are eating or drinking, provided that they are able to maintain a distance of at least six feet away from persons who are not members of the same household or residence
  • Persons who are engaged in outdoor work or recreation such as swimming, walking, hiking, bicycling, or running, when alone or with household members, and when they are able to maintain a distance of at least six feet from others
  • Persons who are incarcerated

Existing guidelines regarding social distancing and frequent hand-washing remain in effect.

To ensure your business operation remains in compliance with these new California requirements, please contact us at (949) 533-3742 and one of our experienced safety and HR experts will be in touch with you right away.

COVID-19 Workers’ Comp Claim Presumption Flowchart

15 Jun

Jessica Mulholland  June 9, 2020 6  HR Watchdog – Cal Chamber

Workers Comp

In early May, Governor Gavin Newsom signed an executive order extending workers’ compensation benefits to California employees who contract COVID-19 while working outside of their homes during the state’s stay-at-home order. This workers’ compensation benefits extension is causing some confusion, but a Sacramento-based law firm recently created a flowchart to help employers.

As previously reported, the order prompted many questions about its scope, criteria and implementation — and created a “rebuttable presumption” that workers meeting certain criteria who contract COVID-19 did so during employment (which means the law automatically assumes workers’ compensation covers their claims and shifts the burden to employers, who may then present evidence to rebut the presumption).

The California Department of Industrial Relations answered some questions in its Question and Answer page, but Sacramento-based law firm Mullen & Filippi went a step further, creating a COVID Claim Presumption Flowchart to further simplify how employers can determine whether a presumption applies.

Start at the top of the chart. If you answer yes to the first seven questions — which include whether the worker received a COVID-19 diagnosis or tested positive for the virus, whether the diagnosis was from a medical doctor holding a license from the California Medical Board and whether the diagnosis was confirmed with a positive virus or antibody test within 30 days, to name a few — COVID-19 is presumed as an industrial injury. This means that, unless you can rebut the presumption by providing evidence of an alternate cause, you must provide workers’ compensation benefits. If, however, you answer no to any of the questions, no presumption exists, and the normal evidentiary rules apply.

Assuming the claim is compensable, employers can use page two of the flow chart to help determine apportionment, compensable consequences, death benefits and temporary total disability benefits.

This executive order is retroactive to March 19, 2020, and extends through July 5, 2020.

Jessica Mulholland, Managing Editor, CalChamber

For more COVID-19-related federal, state and local resources, visit the CalChamber Coronavirus (COVID-19) webpage and access additional COVID-19-related HRWatchdog blogs.

Can an employee refuse to return to work?

HR CAlif. 6/11/2020

Yes. Although you can’t force a furloughed employee to return to work, their refusal to return may disqualify them from receiving unemployment benefits.

The California Employment Development Department (EDD) has released general guidance on COVID-19-related unemployment benefits.

For example, if a business has abided by local and state guidelines and is providing adequate employee protections, an employee who refuses to return to work out of a general fear of contracting COVID-19 wouldn’t qualify to receive unemployment benefits.

If, however, the business doesn’t have proper protective measures in place, an employee can use the lack of protective measures as a valid reason for not returning to work and will thus be able to claim unemployment benefits.

An employee who earns more money on unemployment cannot use the higher pay as a valid reason for refusing to return to work; their refusal would disqualify them from receiving unemployment benefits.

If an employee doesn’t have suitable childcare and cannot return work, it would likely be good cause for not returning to work and the employee would likely be able to keep their unemployment benefits.

Read more about Unemployment Insurance in the HR Library and HRCalifornia Extra’s Unemployment Insurance: A Guide for Employers with Newly Displaced Workers.

Q&As

OSHA Issues FAQ on Face Coverings

The new guidance outlines the differences between cloth face coverings, surgical masks and respirators.

JUN 10, 2020

WASHINGTON, DC – The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has published a series of frequently asked questions and answers regarding the use of masks in the workplace.

“As our economy reopens for business, millions of Americans will be wearing masks in their workplace for the first time,” said Principal Deputy Assistant Secretary for Occupational Safety and Health Loren Sweatt. “OSHA is ready to help workers and employers understand how to properly use masks so they can stay safe and healthy in the workplace.”

The new guidance outlines the differences between cloth face coverings, surgical masks and respirators. It further reminds employers not to use surgical masks or cloth face coverings when respirators are needed. In addition, the guidance notes the need for social distancing measures, even when workers are wearing cloth face coverings, and recommends following the Centers for Disease Control and Prevention’s guidance on washing face coverings.

These frequently asked questions and answers mark the latest guidance from OSHA addressing protective measures for workplaces during the coronavirus pandemic. Previously, OSHA published numerous guidance documents for workers and employers, available at https://www.osha.gov/SLTC/covid-19/, including five guidance documents aimed at expanding the availability of respirators.

For further information and resources about the coronavirus disease, please visit OSHA’s coronavirus webpage.

 

Employers Must Post Certain Notices Upon Re-opening in Orange, San Diego, and Los Angeles Counties

1 Jun

May 30, 2020 from Payne & Fears PC

Reopen

As counties move to re-open businesses, many counties have issued requirements for businesses to post notices regarding their compliance with safe re-opening protocols.

Orange County

On May 29, 2020, and effective the same day, the County Health Officer of the Orange County Health Care Agency issued an amended order and strong recommendations to help slow the spread of COVID-19. Included in this amended order was a mandate that all businesses, industries, and entities listed on the state’s websites on industry guidance and county roadmaps that reopen in Orange County as part of Stage 2 of the State’s Resilience Roadmap post certain notices. All re-opening businesses, industries, and entities must post the following in a location visible to the public at the public entrances of each property:

  1. Industry-specific checklist. The State of California has prepared checklists for a variety of industries and businesses to help these employers implement their plan to prevent the spread of COVID-19. These checklists can be found here. Scroll down to find your industry/business type and press the “+” on the right side. The checklists will be linked below.
  2. An attestation by the owner and/or operator that the business has:
  • Performed a detailed risk assessment and implemented a site-specific protection plan;
  • Trained employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them;
  • Implemented individual control measures and screenings;
  • Implemented disinfecting protocols; and
  • Implemented physical distancing guidelines.

San Diego County

San Diego County has a similar mandate effective as of May 27, 2020: All reopened businesses, other than restaurants providing dine-in services, must prepare and post a “Safe Reopening Plan” on this form for each of their facilities in the county. Restaurants providing dine-in services must prepare and post a “COVID-19 Restaurant Operating Protocol” on this form for each restaurant in the county. These documents must be posted at or near the entrance of the relevant facility and shall be easily viewable by the public and employees. Note that a copy of the Safe Reopening Plan or COVID-19 Restaurant Operating Protocol must also be provided to each employee performing work at the facility.

Los Angeles County

Los Angeles County has had similar notice requirements in place. Relevant businesses must post the relevant protocol notice at or near the entrance to the facility so that it is easily viewable by the public and employees. The required protocol that a business must post depends on the type of business. The order describes what protocol businesses need to post. The relevant information of the order starts on page 8. LA also has a website with available signs for businesses to post.

Other counties have similar requirements.

Small Business Administration Issues Additional Guidance on Forgiveness of Paycheck Protection Program Loans

PPP-loan-forgiveness-guidelines-payroll-457x305

By Melissa Ostrower and Robert R. Perry May 26, 2020, Jackson Lewis PC

The Small Business Administration (SBA) has issued guidance on the forgiveness provisions applicable to loans made under the Paycheck Protection Program (PPP) created by the CARES Act.

The SBA was required to issue guidance on these provisions within 30 days of the enactment of the CARES Act, or no later than April 26, 2020. On May 15, 2020, the SBA issued guidance in the form of the PPP Loan Forgiveness Application and Instructions. On May 22, 2020, the SBA issued additional guidance in the form of an Interim Final Rule.

(For details on PPP, see our article, Paycheck Protection Program Loans: Basics for Small Businesses, Sole Proprietorships.)

The Forgiveness Application answers many questions, including:

  1. Is there flexibility in determining Covered Period?

Under previously issued guidance, the SBA made clear that the Covered Period is the eight-week (56-day) period following the date the PPP loan proceeds are disbursed. For example, if the employer received its PPP loan proceeds on Monday, April 20, the first day of the Covered Period is April 20 and the last day of the Covered Period is Sunday, June 14.

In the Forgiveness Application, the SBA has introduced an Alternative Payroll Covered Period concept. Under this alternative, employers with a biweekly (or more frequent) payroll schedule may elect to calculate eligible payroll costs using the eight-week (56-day) period that begins on the first day of their first pay period following their PPP Loan Disbursement Date (Alternative Payroll Covered Period). For example, if the employer received its PPP loan proceeds on Monday, April 20, and the first day of its first pay period following its PPP loan disbursement is Sunday, April 26, the first day of the Alternative Payroll Covered Period is April 26 and the last day of the Alternative Payroll Covered Period is Saturday, June 20.

  1. What are “costs incurred and payments made” during the Covered Period?

The Forgiveness Application provides: “Borrowers are generally eligible for forgiveness for the payroll costs paid and payroll costs incurred during the eight-week (56-day) Covered Period (or Alternative Payroll Covered Period).” (Emphasis added.) Costs that are incurred but not paid during the applicable period are eligible for forgiveness if they are paid on or before the next regular payroll date (for payroll costs) or before the next regular billing date (for nonpayroll costs.)

Additionally, the Forgiveness Application provides that eligible nonpayroll costs eligible for forgiveness include expenses paid during the Covered Period or incurred during the Covered Period and paid on or before the next regular billing date, even if the billing date is after the Covered Period. This provision appears to permit the payment of past due eligible nonpayroll costs during the applicable period (subject to the 25% limitation on nonpayroll costs).

  1. What does “full-time equivalent employee” mean?

The Forgiveness Application is the first guidance to shed light on the meaning of “full-time equivalent.” This critical term was not defined in the CARES Act or addressed in any other guidance issued.

To calculate the average full-time equivalency (FTE) during the Covered Period or the Alternative Payroll Covered Period, determine the average number of hours paid for each employee per week, divide by 40, and round the result to the nearest one-tenth (but in no event greater than 1.0). Employers with a workforce that has a lower headcount but greater hours and earnings (such as a nursing home) get no extra credit (and could actually be penalized, depending on applicable facts and circumstances) under this formula. A simplified method that assigns a 1.0 for employees who work 40 hours or more per week and 0.5 for employees who work fewer hours may be used at the election of the employer.

The reference to “employee” and “paid” in this definition suggests that furloughed employees or other employees receiving pay while not rendering services should be included in the FTE calculation. However, as terminated employees are generally no longer considered to be “employees,” it is unlikely that former employees who are receiving pay can be included.

  1. If an employer decides to pay furloughed employees or to give employees bonuses or raises during the Covered Period or Alternative Payroll Covered Period, do these count as payroll costs?

When calculating cash payroll costs under the Forgiveness Application, the borrower is directed to include the sum of gross salary, gross wages, gross tips, gross commissions, paid leave (vacation, family, medical or sick leave, not including leave covered by the Families First Coronavirus Response Act), and allowances for dismissal or separation paid or incurred during the Covered Period or the Alternative Payroll Covered Period (subject to the $100,000 annual salary cap, as prorated for the Covered Period).

The Interim Final Rule clarifies that:

  • If a borrower pays furloughed employees their salary, wages, or commissions during the Covered Period, those payments are eligible for forgiveness, as long as they do not exceed an annual salary of $100,000, as prorated for the Covered Period; and
  • If an employee’s total compensation does not exceed $100,000 on an annualized basis, the employee’s hazard pay and bonuses are eligible for loan forgiveness, because they constitute a supplement to salary or wages, and are thus a similar form of compensation.
  1. Are some FTE reductions excluded?

Yes. The Forgiveness Application recognizes it is appropriate to exclude certain employees from the FTE calculation. The following FTE reductions do not reduce an employer’s loan forgiveness:

  • Any positions for which the employer made a good-faith, written offer to rehire an employee during the Covered Period or the Alternative Payroll Covered Period that was rejected by the employee (previously announced in FAQ 40); and
  • Any employees who during the Covered Period or the Alternative Payroll Covered Period (a) were fired for cause, (b) voluntarily resigned, or (c) voluntarily requested and received a reduction of their hours.

The Interim Final Rule adds the following requirement to the rehire provision: The employer must have informed the applicable state unemployment insurance office of each employee’s rejected offer of reemployment within 30 days of the employee’s rejection of the offer. Further information regarding how borrowers will report information concerning rejected rehire offers to state unemployment insurance offices will be provided on SBA’s website.

To utilize these exceptions, employers must maintain documentation regarding any employee job offers and refusals, firings for cause, voluntary resignations, and written requests by any employee for reductions in work schedule.

  1. How do salary and wage reductions affect the forgiveness calculation?

The Forgiveness Application provides detailed guidance on how to calculate the loan forgiveness amount where the salary or hourly wages of certain employees have been reduced during the Covered Period or the Alternative Payroll Covered Period (as compared to the January 1, 2020, to March 31, 2020, period). If the employer timely restored or restores salary/hourly wage levels, the employer may be eligible for elimination of the Salary/Hourly Wage Reduction amount.

The Interim Final Rules clarifies that to ensure borrowers are not doubly penalized, the salary/wage reduction applies only to the portion of the decline in employee salary and wages that is not attributable to the FTE reduction. Thus, if a terminated employee is excluded from the numerator of the FTE reduction fraction, the reduction in the employee’s salary or wages is not also deducted from the forgiveness amount.

  1. What about amounts paid to general partners and members of an LLC?

The Forgiveness Application also clarifies whether and to what extent amounts paid to partners and LLC members count as potentially forgiven payroll costs. Line 9 of Schedule A includes in the calculation of payroll costs the “[t]otal amount paid to owner-employees/self-employed individual/general partners.” The instructions to Schedule A provide that Line 9 includes “any amounts paid to owners (owner-employees, a self-employed individual, or general partners) … capped at $15,385 (the eight-week equivalent of $100,000 per year) for each individual or the eight-week equivalent of their applicable compensation in 2019, whichever is lower.”

Cal/OSHA Expands Employer Injury and Illness Prevention Program Requirements

May 27 2020 – COVID-19 (Coronavirus), Workplace Safety – Matthew J. Roberts, Esq.

CalOsha

Cal/OSHA has provided guidance on COVID-19-related employee training including cough and sneeze etiquette.

The California Department of Occupational Safety and Health, commonly known as Cal/OSHA, continues to modify rules and guidance for businesses operating during the COVID-19 pandemic. General industry and several industry-specific rules and guidelines have been modified. Recently, Cal/OSHA modified its rules and guidance on all employers’ obligation to establish and implement an Injury and Illness Prevention Program (IIPP).

Under California law, employers must establish, implement and maintain an IIPP to protect employees from hazardous workplace conditions. The IIPP must be in writing, accessible to employees and contain several provisions including:

  • Procedures for creating safe and healthful work practices;
  • Procedures for identifying, evaluating and investigating workplace hazards, injuries and illnesses;
  • Systems for communicating hazards to employees; and
  • Employee training whenever the employer learns of a new or unrecognized hazard.

When COVID-19 infections started appearing, employers were required to determine if COVID-19 infection was a workplace hazard. Now that COVID-19 is a pandemic with widespread community exposure, employers must update their IIPPs with measures to control infection in the workplace.

Cal/OSHA instructs employers to follow applicable and relevant recommendations from the Centers for Disease Control and Prevention (CDC). Cal/OSHA references two CDC publications for employers to use when establishing infection prevention measures: Interim Guidance for Business and Employers to Plan and Respond to Coronavirus Disease 2019 and Coronavirus Disease 2019 (COVID-19): How to Protect Yourself & Others.

In addition, Cal/OSHA has provided guidance on COVID-19-related employee training which includes the following components:

  • Training provided in a language readily understood by all employees.
  • General description of COVID-19, symptoms, when to seek medical attention, how to prevent its spread and the employer’s procedures for preventing its spread at the workplace.
  • How an infected person can spread COVID-19 to others even if they are not sick.
  • How to prevent the spread of COVID-19 by using cloth face covers, including:
    • CDC guidelines that everyone should use cloth face covers when around other persons.
    • How cloth face covers can help protect persons around the user when combined with physical distancing and frequent hand-washing.
    • Information that cloth face covers are not protective equipment and don’t protect the person wearing a cloth face cover from COVID-19.
    • Instructions on washing and sanitizing hands before and after using face coverings, which should be washed after each shift.
  • Cough and sneeze etiquette.
  • Washing hands with soap and water for at least 20 seconds, after interacting with other persons and after contacting shared surfaces or objects.
  • Avoiding touching eyes, nose and mouth with unwashed hands.
  • Avoiding sharing personal items with coworkers (i.e., dishes, cups, utensils, towels).
  • Providing tissues, no-touch disposal trash cans and hand sanitizer for use by employees.
  • Safely using cleaners and disinfectants, which includes:
    • The hazards of the cleaners and disinfectants used at the worksite.
    • Wearing personal protective equipment (PPE) (such as gloves).
    • Ensuring cleaners and disinfectants are used in a manner that does not endanger employees.

Employers may access the full general industry guidance on the Cal/OSHA website. Several additional guidelines for specific industries, such as agriculture, childcare and construction, can be viewed here. Employers who need to update their written IIPP should consult with legal counsel to ensure that it meets with the requirements under California law.

Matthew J. Roberts, Esq., Employment Law Counsel Subject Matter Expert

Stage 2 of Reopening California Businesses Starts Friday

11 May

By Alix Martichoux

Stage TwoMonday that the next stage of reopening California’s economy will begin as early as Friday. Some businesses included in the state’s “Stage 2” of reopening will be allowed to resume operations starting Friday, including book stores, clothing stores, toy stores, florists and others.

SAN FRANCISCO (KGO) — Gov. Gavin Newsom announced Monday that the next stage of reopening California’s economy will begin Friday, May 8, 2020.

Some businesses included in the state’s “Stage 2” of reopening will be allowed to resume operations starting Friday, May 8, including bookstores, clothing stores, toy stores, florists and others. Associated manufacturers that support those retail supply chains will also be allowed to resume production.

Those businesses will be allowed to reopen for curbside pick-up, given they follow additional safety and hygiene protocols that will be released Thursday, Newsom said.

This step doesn’t include all businesses in the state’s “Stage 2,” Department of Public Health Director Dr. Sonia Angell clarified. At this time, office buildings, dine-in restaurants and shopping malls will not be allowed to reopen. (The state’s full four-stage plan to reopen is outlined below.)

Newsom emphasized that local officials still have the authority to accelerate or slow down reopening at the county level.

“We are not telling locals that believe it’s too soon, too fast to modify. We believe those local communities that have separate timelines should be afforded the capacity to advance those timelines,” he said, citing the Bay Area’s “stricter guidelines.”

“If they choose not to come into compliance with the state guidelines, they have that right,” the governor said.

More rural or remote counties with fewer COVID-19 cases will also be allowed to reopen businesses sooner, the governor said, as long as their decisions don’t risk the “the health of the entire state.”

The state is working to create guidelines that will allow restaurants and other hospitality businesses to open their doors again, as well.

“This is a very positive sign and it has happened for only one reason: the data says it can happen,” said Newsom. “But we recognize as we begin to modify … possible community spread will occur. If that is the case, and we don’t have the capacity to control that spread, to track that spread, to isolate individuals that may have been in contact with COVID-19, we will have to make modifications anew.”

The state plans to reopen those sectors in four stages, as described by Dr. Angell:

Stage 1: Everyone is either staying at home or a member of the essential workforce. This is the stage we are in now, and will stay in until a modification to the statewide stay-at-home order.

Stage 2: Reopening lower risk workplaces, including:

  • Non-essential manufacturing (toys, furniture, clothing, etc.)
  • Schools
  • Childcare facilities
  • Retail businesses for curbside pick-up
  • Offices where working remotely isn’t possible, but can be modified to make the environment safer for employees

Stage 3: Reopening higher risk workplaces, which require close proximity to other people, including:

  • Hair salons
  • Nail salons
  • Gyms
  • Movie theaters
  • Sporting events without live audiences
  • In-person religious services (churches and weddings)

Stage 4: Ending the stay-at-home order, which would allow for the reopening of:

  • Concert venues
  • Convention centers
  • Sporting events with live audiences

 

New Model COBRA Notices and Emergency Extensions to COBRA Deadlines Require Employers to Take Action

By Brian M. Johnston and Keith A. Dropkin on May 4, 2020 Jackson Lewis PC

The Department of Labor (DOL) and other federal regulators released updates and clarifications related to employee benefits, including updates to model COBRA notices and an extension of certain statutory deadlines intended to minimize the possibility of participants and beneficiaries losing benefits during the COVID-19 pandemic. This article highlights the DOL’s recent changes and updates relating to Consolidated Omnibus Budget Reconciliation Act (COBRA).

Updated COBRA Notices

CobraOn May 1, 2020, the DOL released the first updates to its model COBRA Notices since 2014. The models are for the (i) general or initial notice (provided to employees and covered spouses within the first 90 days of coverage under the group health plan), and (ii) the election notice (provided to qualified beneficiaries within 44 days of the qualifying event resulting in a loss of coverage). The notices inform plan participants and other qualified beneficiaries of their rights to health continuation coverage upon a qualifying event. The release of these updated model COBRA notices is an important reminder for employers to ensure that plan participants receive timely and adequate information about their COBRA rights.

More Information about Medicare:  The primary update to the DOL model notice is a new Q&A section, “Can I enroll in Medicare instead of COBRA continuation coverage after my group health plan coverage ends?”, with similar content in a companion FAQ about COBRA and Medicare options.

Risk of Noncompliance

Employers do not have to use the model notices, however the DOL considers using the model notices, appropriately completed, to be good-faith compliance with COBRA’s notice content requirements. Our firm recently discussed the rapid expansion of class action litigation against employers that issued COBRA election notices that failed to follow the DOL model notice in detail. We strongly recommend that employers use the updated DOL COBRA notice forms (or some enhanced version of such notices).

If the updated model notices are not used, the employer should ensure that their COBRA notices include the most current information from the DOL. Because of the significant exposure for COBRA noncompliance, and because employers retain liability for COBRA compliance even if a third-party vendor is hired for COBRA administration, employers should have their COBRA notices regularly reviewed.

COBRA Deadline Extensions

On April 29, 2020, the DOL and Internal Revenue Service (IRS) issued a Joint Notice extending certain time frames affecting a participant’s right to continuation of group health plan coverage under COBRA after employment ends. Normally, a qualified beneficiary has 60 days from the date of receipt of the COBRA notice to elect COBRA, another 45 days after the date of the COBRA election to make the initial required COBRA premium payments, and COBRA coverage may be terminated for failure to pay premiums timely. A premium is considered timely if paid within a 30-day grace period.

The Joint Notice extends the above deadlines (and many other participant-related deadlines such as HIPAA special enrollments, claim appeals and external review filings) by requiring plans to disregard the period from March 1, 2020, until 60 days after the announced end of the National Emergency (known as the “Outbreak Period”).

Election Period Extension:  once a participant receives his or her timely COBRA election notification, the applicable COBRA deadlines are now extended until after the Outbreak Period ends. For COBRA election purposes, this means if a qualifying beneficiary receives the election notice on or after March 1, 2020, the 60-day initial COBRA election period does not begin until the end of the Outbreak Period. The participant then has another 45 days after that to make the required COBRA premium payments (that still apply back to the date on which previous employer coverage ended). The more time provided to qualified beneficiaries to elect and pay for coverage retroactive to the date coverage is lost, the greater the opportunity to game the system.

As an example, if the National Emergency period is proclaimed to end on May 31, 2020, the “Outbreak Period” will be deemed to end on July 30, 2020.  If an employee was provided a COBRA election notice on April 1, 2020, that person’s initial COBRA election deadline will be extended from the original deadline of May 31, 2020 (the 60th day from date of receipt of COBRA election notice) to a new COBRA election deadline of September 28, 2020 (i.e., 60 days from the end of the Outbreak Period).  That individual then has 45 more days to make the first COBRA premium payment for all coverage back to the original date of coverage loss.

Premium Payment Extension:  Likewise, for individuals already on COBRA, the deadlines to make required monthly premium contributions are extended until 30 days after the end of the Outbreak Period, and the guidance makes clear that an employer or health insurance carrier cannot terminate coverage or reject any claims for nonpayment of premium during this period. Such coverage termination can only occur if the individual fails to make all the required monthly premium contributions at the end of the Outbreak Period.

For example, an individual previously elected COBRA and has been paying monthly COBRA premiums since March 1, 2020. That individual does not pay applicable monthly COBRA premiums for April, May, June, or July. Under the extension guidance, the Plan must allow the individual until 30 days after the end of the Outbreak Period (or, August 29, using the dates from the prior example) to fully pay all prior months of COBRA premiums to maintain the COBRA coverage.  Health plans and insurance carriers are burdened with holding all claims submitted during the extension period to know whether coverage will or won’t be paid as required.

Employer COBRA Notice Period Extension:  The Joint Notice potentially also allows plans, plan administrators, and employers to have extra time to provide the COBRA election notice but the guidance is unclear about how that extension period applies. Until further guidance is issued to add clarity, we recommend that employers, other plan sponsors and administrators continue to send the COBRA election notices based on existing law and rely on the extension only if necessary.

Complications will likely result under this new guidance, and thus we strongly recommend working with COBRA administrators to ensure proper compliance is maintained throughout the Outbreak Period and beyond.

Participant Options for Coverage

Lastly, the DOL updated its ongoing FAQ guidance for participants to know and understand their health insurance and other benefit rights and coverage options before, during, and after the National Emergency period ends. While this guidance is directed to participants and beneficiaries, employers may also find it instructive to ensure they are providing proper coverage alternatives.

More Information

Employers can find a consolidation of almost all the DOL’s recent COVID-19 related guidance about benefits on its website.

 

Screening and Accommodation Issues Related to Returning to Work

By: Robin E. Largent Carothers DiSante & Freudenberger LLP © 2020

Screening For Work

Over the last few weeks, the EEOC has been updating its guidance for employers on handling various COVID-19 issues in the workplace, including on the topics of health screenings and when reasonable accommodation is, and is not, needed.  In some areas, the EEOC’s guidance continues to evolve, particularly on the issue of handling employees who have underlying medical conditions that make them high-risk for COVID-19 complications, but who do not have COVID-19 or COVID-19 symptoms.  This article summarizes the EEOC’s latest guidance on these important return-to-work issues.

Health Screenings

The EEOC has taken the position that temperature screening, symptom and exposure screening, and COVID-testing are all permissible tools for employers to consider when bringing employees back to work.  What if an employee refuses to participate?  According to a recorded webinar provided by the EEOC, the employee can be denied entry into the workplace if an employee refuses to answer screening questions and/or submit to temperature screening.  The EEOC has not directly answered whether an employer may refuse entry to an employee who refuses an actual COVID-19 test (which is more invasive than a health screening questionnaire or a temperature screening).

On the issue of symptom and exposure screening, the EEOC states that employers may ask all employees who will be physically entering the workplace if they have COVID-19, or symptoms associated with COVID-19, or ask if they have been tested for COVID-19. Symptoms associated with COVID-19 include, for example, cough, sore throat, fever, chills, and shortness of breath.  Additional symptoms may include new loss of smell or taste as well as gastrointestinal problems, such as nausea, diarrhea, and vomiting. Employers may not ask employees who are teleworking these questions.  Employers may also ask employees who will be physically entering the workplace whether they have been exposed to anyone with COVID-19 or its symptoms.  Employers should not limit the question to whether the employee has been exposed to any “family members” with COVID-19 or COVID-19 symptoms because GINA generally restricts inquiries into the medical conditions of an employee’s family.

Employers who will conduct screening or testing generally should apply the same requirements to all employees entering the workplace, rather than singling out individual employees for screening.  An exception may be if a specific employee is exhibiting symptoms, in which case an employer may inquire if the employee may have COVID-19 and/or if the employee has been tested.  Employees with symptoms may be sent home.

All medical information obtained from an employee and documented must be maintained in a confidential medical file for the employee.  Importantly, if an employer learns that an employee has Covid-19, the employer must protect the confidentiality of that information.  It is permissible to ask the employee which coworkers with whom he/she has been in physical contact and then to notify those workers that they may have been exposed, but the employer generally should not identify the worker with COVID-19 to others.

The EEOC has not yet addressed the permissibility of COVID-19 antibody testing, whether this may be required of all employees, and whether an employee can be denied entry into the workplace without a test.

Is COVID-19 a Disability?

The EEOC states that “it is not yet clear” whether COVID-19 is or could be a disability.  However, employers may prevent those with COVID-19 from entering the workplace because they would pose a direct threat to employee safety.

Employees Who Are 65 and Older

The EEOC states that employers may NOT exclude employees who are 65 and older from the workplace simply because they are in a higher risk group for serious complications from COVID-19.  The EEOC guidance states:  “The Age Discrimination in Employment Act prohibits employment discrimination against workers aged 40 and over. If the reason for an action is older age, over age 40, the law would not permit employers to bar older workers from the workplace, to require them to telework, or to place them on involuntary leave.”

Relatedly, the EEOC states that employers are not required to grant a request to telework by an employee who is 65 or older simply because the employee is in a high-risk group for COVID-19 complications.  (Of course, the employer may voluntarily permit telework in this circumstance.)

Please note that the EEOC’s guidance on this issue may conflict with some state or local shelter-at-home orders, which direct older employees to shelter at home.  Employers need to consider the applicability of these orders and not just ADA/Title VII considerations when making decisions concerning this issue.  If a shelter-at-home order is in place that states that older individuals (defined varyingly as 60+, 65+, and 70+ depending on jurisdiction) should shelter at home, employers should accommodate telework for these individuals while the order remains in effect.  If telework is not feasible for this employee, the employer needs to consider state and local guidance as well as EEOC guidance in determining whether to prohibit the employee from returning to work (e.g. where the employee wants to return to work even though in a high-risk age group).  This poses age discrimination risk under EEOC guidance.  Unfortunately, the California DFEH has not provided its own guidance on this issue for California employers.

Employees With Underlying Medical Conditions

What are employers’ obligations with respect to accommodating employees who have underlying medical conditions that place them at higher risk for serious COVID-19 complications according to CDC guidance?  This is an issue that the EEOC continues to grapple with, having published and then retracted guidance on this issue just yesterday, with a statement that the guidance is being reviewed and will be published at a later date.  For now, the EEOC states that individuals with underlying medical conditions rendering them high-risk may be entitled to reasonable accommodations under the ADA to prevent “direct threat to self.”  Such an employee should request accommodation and the employer has a duty to engage in an interactive process with the employee to determine reasonable accommodations.  The employer can request supporting medical documentation specifying that the employee has a disability that puts him/her at higher risk for severe complications from COVID-19 (remember that in CA, employers may not require specific identification/diagnosis of the underlying medical condition) and that, as such, an accommodation is needed.  Reasonable accommodations may include telework, provision of additional personal protective equipment or enhanced protective measures (for physical presence in the workplace) such as moving the location of an employee’s workspace to allow greater social distancing or protection, and/or elimination of marginal job duties.

Pregnant Employees

The EEOC guidance states that employers are not required to allow pregnant employees to telework or otherwise provide special accommodations for them due to COVID-19 because pregnancy itself is not a disability.  However, if an employee has a pregnancy-related disability for which the employee needs accommodation, the employer should engage in the interactive process and determine whether reasonable accommodation is appropriate.  Additionally, if the employer allows other employees to work from home as an unofficial accommodation, the employer should not treat pregnant employees differently because that may give rise to a pregnancy discrimination claim.

Employees Living With Someone Who Is in a High-Risk Category

The EEOC states that an employer is not required to provide reasonable accommodation to an employee who is living with someone who has a disability that makes the individual high risk for serious COVID-19 illness.  The ADA only requires reasonable accommodation of an employee’s own disability, not those of a family member.

Although an employer is not required to accommodate employees in this situation, employers may wish to voluntarily do so (e.g. provide an unpaid leave of absence or allow telework for a limited period of time) in order to avoid risk of claims/lawsuits and the associated cost of defense.

Personal Protective Equipment Upon Return to Work

If an employer requires employees to wear personal protective equipment in the workplace (e.g. masks, gloves) and an employee reports that he/she has a disability that prevents the employee from wearing the required protective equipment, the employer may have a duty to reasonably accommodate the employee by providing different protective equipment (e.g. non-latex gloves) or allowing an exception from the requirement, possibly with the imposition of different protective measures for that employee.

What About Undue Hardship?

Under established disability accommodation law, employers have a duty to reasonably accommodate employees with disabilities, unless doing so would be an undue hardship for the employer.  Undue hardship generally means “significant difficulty or expense.”  The undue hardship exception remains the law even in the COVID-19 era.  However, the EEOC acknowledges that accommodations that would not have posed an undue hardship pre-COVID may pose undue hardship now due to financial struggles faced by employers and other limitations on staffing.

In assessing whether a particular accommodation poses “significant difficulty,” an employer may consider whether current circumstances create “significant difficulty” in acquiring or providing certain accommodations, considering the facts of the particular job and workplace.  For example, it may be significantly more difficult in this pandemic to conduct a needs assessment or to acquire certain items, and delivery may be impacted, particularly for employees who may be teleworking.  Or, it may be significantly more difficult to provide employees with temporary assignments, to remove marginal functions, or to readily hire temporary workers for specialized positions.  If a particular accommodation poses an undue hardship, employers and employees should work together to determine if there may be an alternative that could be provided that does not pose such problems.

In assessing whether a particular accommodation poses “significant expense,” the sudden loss of some or all of an employer’s income stream because of this pandemic is a relevant consideration.  Also relevant is the amount of discretionary funds available at this time – when considering other expenses – and whether there is an expected date that current restrictions on an employer’s operations will be lifted (or new restrictions will be added or substituted).  These considerations do not mean that an employer can reject any accommodation that costs money; an employer must weigh the cost of an accommodation against its current budget while taking into account constraints created by this pandemic.  For example, even under current circumstances, there may be many no-cost or very low-cost accommodations.

California Orders Insurers to Pay Back Premiums Due to Virus

20 Apr

 

Ricardo

Ricardo Lara, California’s Insurance Commissioner

California insurance commissioner Ricardo Lara on Monday ordered insurers in the state to refund some March and April premium payments to policyholders for a range of personal and commercial lines due to COVID-19.

The notice ordered insurers to “make an initial premium refund for the months of March and April” to affected California policyholders as quickly as practicable and no later than within 120 days.

Lines where refunds are required include, commercial and personal auto, workers compensation, commercial multiple peril, commercial liability, medical malpractice and “any other line of coverage where the measures of risk have become substantially overstated as a result of the pandemic,” the notice said.

Insurers can offer premium credits, premium reductions, return of premiums of other “appropriate premiums adjustments” and must report their actions with 60 days, the notice said.

The department will send out a subsequent bulletin to insurers and provide appropriate instructions if the COVID-19 pandemic continues beyond May, the notice said.

The order follows announcements by various auto personal lines insurers and some small business insurers in various states that they would offer premium refunds or discounts to reflect decreases in miles driven and other risk-related changes stemming from the pandemic.

Meanwhile, Chubb Ltd. on Monday announced that small business policyholders whose policies renew between April 1 and August 1, 2020, will receive an automatic 25% reduction in the sales and payroll exposures used to calculate their premium as well as a 15% reduction in premiums for their commercial auto insurance.

In addition, Chubb will purchase $1 million in gift cards from small business clients, which will be donated to healthcare workers and other first responders on the front lines of the pandemic in their communities.

In addition, Selective Insurance Group Inc. on Monday announced it would give commercial and personal auto policyholders a 15% premium credit for April and May related to COVID-19 shelter-in-place orders.

Workers Exposed to COVID-19

By Kurt Rose and Karen Charlson on  April 9, 2020, Littler law firm.

In yet another significant move, on April 8, 2020, the U.S. Centers for Disease Control and Prevention (CDC) published additional guidance for employers regarding safety practices for “critical infrastructure workers” who may have been exposed to a person with a suspected or confirmed case of COVID-19.

Since the onset of COVID-19, many employers are requiring employees who have been exposed, or potentially exposed, to infected persons to remain away from work for 14 days – the CDC’s stated incubation period.  As a result, many employers, including those that perform essential functions, were hamstrung operationally because portions of their workforce remained self-quarantined for two weeks.

New Guidance for Critical Infrastructure Employers

The new guidelines help ease the strain on the country’s critical sectors.  The purpose of the guidance is to ensure the continued operation of critical infrastructure.  The CDC is now advising that critical infrastructure employees who have been exposed to the virus can continue to work, provided they remain asymptomatic.  In order to permit exposed employees to continue to work, the CDC advises that employers should, among other things, adhere to the following practices prior to and during work:

  1. measuring temperature before employees enter the facility;
  2. regular monitoring of asymptomatic employees;
  3. having affected employees wearing a mask/face covering in the workplace for 14 days after exposure (employer-issued or employee-supplied);
  4. having employees maintain social distancing (six feet apart), as work duties permit; and
  5. routinely disinfecting work spaces.

Who is Critical?

As noted above, the new guidance does not apply to all employers that continue to operate through the pandemic.  The CDC has highlighted that the new guidance applies to the following critical infrastructure sector personnel:

  • Federal, state, and local law enforcement;
  • 911 call center employees;
  • Fusion center employees;
  • Hazardous material responders from government and the private sector;
  • Janitorial and other custodial staff; and
  • Workers – including contracted vendors – in food and agriculture, critical manufacturing, information technology, transportation, energy and government facilities.

This list is not exhaustive, however, and leaves much open for interpretation.  In an effort to provide further clarity, the CDC directs employers to the U.S. Department of Homeland Security’s Critical Infrastructure Security Agency (CISA) website for further guidance on sectors and employees that are considered critical.

Interplay with Shelter in Place Orders

In connection with their shelter in place orders, many states and localities have adopted the CISA’s guidelines.  Therefore, employers should pay close attention to whether the type of work they perform falls within a CISA critical infrastructure sector and, similarly, whether the employees who continue to report to work are, in fact, essential. Employers subject to a stay at home order that does not rely on the CISA framework should be careful to evaluate the nature of their operations under the particular order at issue.

Next Steps

The CDC’s new guidelines can help critical infrastructure employers as they continue to navigate the most appropriate ways to maintain operations during this difficult time.  So long as critical employers implement the above-noted recommendations, essential workers who have been exposed, or potentially exposed, may continue working if those workers are not sick.  At the end of the day, however, critical infrastructure employers may choose to follow more conservative protocols with their workforce.

Flash Report: Cal/OSHA Receiving Thousands of COVID Complaints

Published on: April 17, 2020 Cal/OSHA Reporter

Cal Osha

Cal/OSHA’s Division of Occupational Safety and Health has received up to 1,500 complaints about employers alleged failing to provide proper protection during the COVID-19 crisis, according to DOSH Deputy Chief Eric Berg.

The revelation came as stakeholders and Standards Board members pressed Berg, the deputy chief for health, for clarification on Division guidance on personal protective equipment during the virus crisis. The exchange came at the April 16 board meeting, held by teleconference.

Jessica Early, a representative of the National Union of Healthcare Workers expressed concern that DOSH’s interim guidance on PPE for healthcare workers “have undercut respiratory protections.” Taylor Jackson, a lobbyist for the California Nurses Association, asserted that hospitals are “locking up and rationing” respirator supplies.

In response, Berg said the interim guidelines, which align with federal Centers for Disease Control and supercede previous Cal/OSHA guidance on respirators, were only published “because of the extreme shortage that we’re experiencing,” Berg said. “Droplet protections [in healthcare settings] are not sufficient to protect employees,” he added. “Respirators have to be used unless it’s not possible to get fitted respirators due to supply constraints.”

Asked by board occupational safety representative Laura Stock whether DOSH is investigating allegations of respirator stockpiling, Berg affirmed that the Division is doing so. “When we get a complaint or otherwise investigate employers for failing to provide respirators as required,” he said. “We would investigate how many respirators they have coming in, their burn rate and what their stock is.”

Berg’s comment about the crush of complaints came in response to a question from Barbara Bergel, the board’s occupational health representative. She wanted to know whether DOSH has investigated complaints related to non-healthcare workers in hospital settings performing deep cleaning. “We’ve had over a thousand complaints, up to 1,500,” Berg replied. “I’m not aware of all of them.”

To put that number in perspective, for the first quarter of 2019, DOSH investigated 488 complaints.

Berg also emphasized that employers covered by the aerosol transmissible diseases standard (General Industry Safety Orders §5199), such as healthcare, have responsibilities under the standard even if they face a respirator shortage. “If they’re low on respirators and they have to switch to non-respirator protections in that circumstance, that is a change in their ATD program. They are required to communicate these issues with employees and their bargaining representatives” and train them, he explained.

Essential and still open industries are required to identify and address COVID hazards through their Injury and Illness Prevention Program. “Given the widespread nature of COVID, it is a hazard in all workplaces that have some sort of contact with people,” he said. “Once they identify that hazard, that requires them to take appropriate action.” That means following Cal/OSHA guidelines “unless there’s something specific that makes it not possible.”

The Division has developed COVID guidelines for general industry, as well as for several specific industries.

State Changes Serious-Injury Report Criteria, Moves to Eliminate Email Requests

17 Dec
Report of Work Injuiry

New laws that take effect at the start of 2020 will change how employers report accidents to the California Division of Occupational Safety and Health and revise the criteria for determining which serious job site occupational injuries, illnesses and deaths employers need to disclose.

Lawmakers during the 2019 session enacted AB 1804, which changes the reporting requirement and directs employers to immediately disclose incidents via telephone or through a new online portal created by Cal/OSHA. Employers may continue to send incident reports by email until the agency launches the new site.

The Legislature also enacted AB 1805, amending definitions that legislators argue will provide clarity to employers when reporting workplace injuries.

One amendment is the definition of “serious injury or illness.” The law removed the 24-hour minimum time requirement for qualifying hospitalizations in which an employee suffers the loss of a body part or suffers permanent disfigurement. This excludes stays for medical observation or diagnostic testing.

The law replaces “loss of any member of the body” with “amputation,” and includes the loss of an eye as a qualifying injury. AB 1805 also revises the definition of “serious exposure” by including that the exposure of an employee should create a “realistic possibility” — instead of the current “substantial probability” — of death or serious bodily harm.

The law eliminates the exclusion of an injury or illness caused by certain violations of the Penal Code, and narrows the inclusion of accidents on a public street or highway found to have occurred only in a construction zone.

CalWorkSafety, LLC can provide training for your supervisors and employees on this topic or other safety compliance issues.

Working to help you prepare for 2020

17 Sep

Dressler - September 2019.png

The California Legislature has finished its work for 2019, and now the focus shifts to what our new California Governor Newsom will sign or veto for new laws for 2020.

With changes in California Court decisions and some Federal rules, as well as laws already signed, employers will face new and emerging HR challenges and obstacles when it comes to complying with federal, state and local laws as well as developing, maintaining and enforcing workplace policies and procedures.

Key Issues

From new laws and regulations on trending issues such as equal pay and reasonable accommodations to societal transformations with the #metoo and #timesup movements, to changes in technology and communications, employers need to revisit and update their workplace policies and procedures in a meaningful way, as soon as mid October 2019.

These are some of the new and emerging issues employers face, which CalWorkSafety’s team is here to help you deal with:

• Complying with rapidly changing leave laws across states and localities;
• Eliminating unconscious bias in recruiting and hiring;
• Handling employee mental health issues;
• Preventing cyber breaches and data security;
• Managing mobile devices/wearable technology;
• Handling the conflict between federal and state marijuana laws; and
• Preparing and responding to an active shooter or workplace violence incident.

We can also help with: 

• Ensuring handbooks are read and understood by employees;
• Finding high quality applicants;
• Ensuring employees and supervisors have the necessary skill sets now and for future responsibilities;
• Keeping handbooks current with new laws and trends; and
• Recruiting a more diverse workforce.

Full Speed Ahead to 2020

What will 2020 bring when it comes to HR compliance? There are a host of other trending issues to watch and employers must be up to speed on them, including:

• In California – complying with new “gig-economy” or independent contractor law;
• Managing and protecting employee privacy;
• Closing the wage gap and increasing pay equity for women and minorities;
• Managing nontraditional workers (i.e., gig workers, remote workers);
• Making workplaces more family friendly, diverse and inclusive;
• Providing reasonable accommodations for workers in a protected class (i.e., disability, gender identity, religion);
• Addressing increased immigration enforcement and audits;
• Addressing pregnancy/lactation issues;
• Handling employee use of e-cigarettes and vaping;
• Preparing for anticipated changes to overtime regulations;
• Providing leave and time off for various reasons;
• Preventing harassment and investigating complaints; and
• Restrictions on the use of NDAs/arbitration clauses in employment or settlement agreements with respect to harassment.

The CalWorkSafety Consultants Are Here to Help Clients
With all Questions or Concerns About These New Laws.
Contact Us Today!

CA Minimum Wage Hikes Begin July 1st

25 Jun
June-Wages Up
Employers’ Posters Must Conform With July 1, 2019 Minimum Wage Rate Increases

California local cities and counties continue to pass minimum wage ordinances and other employment laws relating to paid sick leave and criminal background checks. On July 1, 2019, several local minimum wage rates also increase, as will two new local minimum wage ordinances will be required.

City & County Minimum Wage Increases Start July 1st
  • Berkeley: $15.59/hour.
  • Emeryville: $16.30/hour for businesses of all sizes (except for Small Independent Restaurants).
  • City of Los Angeles: $14.25/hour for employers with 26+ employees; $13.25/hour for employers with 25 or fewer employees.
  • County of Los Angeles (unincorporated areas only): $14.25/hour for employers with 26 or more employees; $13.25/hour for employers with 25 or fewer employees.
  • Malibu: $14.25/hour for employers with 26 or more employees; $13.25/hour for employers with 25 or fewer employees.
  • Milpitas: $15/hour.
  • Pasadena: $14.25/hour for employers with 26 or more employees; $13.25/hour for employers with 25 or fewer employees.
  • San Francisco: $15.59/hour.
  • San Leandro: $15/hour.
  • Santa Monica: $14.25/hour for employers with 26 or more employees; $13.25/hour for employers with 25 or fewer employees.
    Note: Eligibility rules may vary based on different locations.
Two New Minimum Wage Ordinances Start July 1st
  • Alameda: $13.50/hour.
  • Fremont: $13.50/hour for employers with 26 or more employees; employers with 25 or fewer employees will continue to pay the state minimum wage rate until July 1, 2020.

Employees classified under the executive, administrative or professional exemptions must earn a minimum monthly salary of no less than two times the state minimum wage for full-time employment. For employers with 26+ employees, the required monthly salary is $4,160 per month, and employers with less than 25 employees, the required monthly salary is $3,813.33 per month.

The exempt salary test is based on the California minimum wage; it increases every year on January 1 as the state minimum wage increases (the salary test is not affected, however, by any applicable local minimum wage.) The exempt salary test is calculated using the current California minimum wage, even if an employer’s nonexempt employees are entitled to receive a higher minimum wage under a local ordinance.

Raise for Nonexempt Employees
If you have nonexempt employees working in any of the following localities, the required local hourly minimum wage will increase on July 1, 2019 as follows:

Northern California

  • Alameda: $13.50.
  • Berkeley: $15.59.
  • Emeryville: $15 for “small independent restaurants”; $16.30 for all other employers.
  • Fremont: $13.50 for employers with 26+ employees; 25 or less employees subject to California minimum wage).
  • Milpitas: $15.
  • San Francisco: $15.59.
  • San Leandro: $14.
  • Southern California
    City of Los Angeles, County of Los Angeles (unincorporated areas only), Malibu, Pasadena, and Santa Monica: $14.25 for employers with 26+ employees; and $13.25 for less than 25 employees.

    Updated Minimum Wage Increase Workplace Posters Required for
    LA, San Francisco & Santa Monica – Increases in the Local Minimum Wage

    In May 2019, the Los Angeles Office of Wage Standards Ordinance updated the city’s minimum wage notice to reflect the increases that are effective July 1, 2019 as follows: $13.25 per hour for employers with 25 or fewer employees; and $14.25 per hour for employers with 26 or more employees. This notice must be conspicuously posted in any workplace or job site. Violators are subject to penalties. See the Notice

    Beginning July 1, 2019, the San Francisco Office of Labor Standards Enforcement updated its San Francisco minimum wage notice to reflect the city and county’s minimum wage increase to $15.59 per hour. This notice must be posted in the workplace where employees can easily read it. Failure to post this notice may result in penalties. See the Notice

    In April 2019, the City of Santa Monica updated mandatory workplace posters to reflect the following wage increases effective July 1, 2019 to June 30, 2020. The City of Santa Monica minimum wages increase to $13.25/hour for small businesses, and $14.25/hour for large businesses. Hotel worker living wage increases to $16.63/hour. Also City’s paid sick leave notice and service charge law notice. Failure to post these notices subjects employers to penalties. See the Packet

    The CalWorkSafety Consultants Are Here to Help Clients
    With all Questions or Concerns About These New Notices.
    Contact Us to Help You Sort Out Your Options