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

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

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

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

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.

High Heat Warnings: How to Keep Outdoor Workers Safe

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:

• laptop/tablet stand that will allow employees to lift the screen to eye level.
• folding keyboard that puts their hands in a more natural position when typing.
• wireless mouse that can be placed on level with the folding keyboard.

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

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.

COVID-19 and a New Hire’s Expired Identity Document

HRWatchdog  August 3, 2020

We just hired an employee who doesn’t have a current identity document. Her driver license expired on April 1, and she says that she hasn’t been able to renew it due to COVID-19. Can we hire her?

Yes. The U.S. Department of Homeland Security (DHS) issued a temporary policy beginning on May 1, 2020, that allows an identity document with an expiration date on or after March 1, 2020, to be accepted for I-9 purposes.

DHS issued this policy due to COVID-19 closure of offices or reduced services that prevented individuals from renewing documents.

Identity documents for I-9 purposes include a driver license, federal- or state-issued identification card with identifying information and a photograph, or a school identification card with a photograph.

If the employee’s identity document expired on or after March 1, 2020, and the document expiration date has been extended by the issuing agency due to COVID-19, then it may be used as a List B document.

Adding Note

The expired document should be entered under Section 2 on the Form I-9 and “COVID-19” should be added to the Additional Information section. Employers also may attach to the Form I-9 a copy of the webpage or other notice indicating that the document has been extended.

The employee has 90 days after the DHS terminates this temporary policy to obtain and present a current document. When the employee obtains a new document, enter the new document’s number and expiration date in the Additional Information field, initial and date the change.

Confirm State Extensions

Employers can confirm that a state has automatically extended the expiration date of its state IDs and driver licenses by checking the state motor vehicle administration websites.

Information on the California Department of Motor Vehicles extension for driver licenses may be found here.

The DHS will continue to monitor the ongoing COVID-19 national emergency and will provide updated guidance as needed. Employers may check for current updates by going to the U.S. Citizenship and Immigration Services (USCIS) website.

California Businesses Considering Furloughs v. Layoffs Again

Matthew J. Roberts, Esq.  August 4, 2020 Cal Chamber

Nearly five months have passed since California Governor Gavin Newsom issued his initial shelter-in-place order. In March, many California businesses were left facing difficult choices due to potential losses in revenue and uncertainty in the future, and, as a result, began evaluating their options, including furloughs and layoffs.

As California eased into a phased reopening plan, businesses began to reopen and recall their workforces. However, California has seen a surge in COVID-19 cases and paused or even rolled back its reopening. Now, many employers are left with the same question from March: How do we handle our workforce while trying to preserve our business?

A common question the CalChamber Labor Law Helpline continues to receive from our members is whether there’s a difference between furloughing and laying off employees. Essentially, a furloughed employee remains an employee on the books but with reduced or eliminated work hours, while a layoff generally means a complete severance of employment.

An issue in March still exists today — under the current circumstances, the California Labor Commissioner may see no real difference between a temporarily furloughed employee without any work hours and a laid off employee. In a pair of opinion letters, the Labor Commissioner stated that if an employer reduces an employee’s scheduled work hours to zero — and doesn’t reschedule that employee within the same pay period — the employer has effectively laid off the employee which triggers the final pay requirements under Labor Code section 201.

In addition to final pay concerns, if an employer with 75 or more employees ends up “furloughing” or “laying off” 50 or more employees from a single location, it may trigger California Worker Adjustment and Retraining Act (CalWARN) notice requirements. Although the notice requirements generally apply to mass layoffs, in recent years, California courts have held that there’s no minimum length of time for a mass furlough or temporary mass layoff to trigger CalWARN requirements (The International Brotherhood of Boilermakers, et al. v. NASSCO Holdings, Inc., 17 Cal.App.5th 1105 (2017)). However, even if a mass furlough or layoff triggers the CalWARN requirements, the traditional notice and timing requirements have been temporarily modified since the COVID-19 pandemic began.

Finally, an employer has different responsibilities when recalling or rehiring employers after either a furlough or layoff. If the employee was furloughed with the understanding that the employee remained employed during that time, employers won’t need to initiate the new hire process. But, businesses will need a legitimate business reason for choosing not to recall a furloughed employee. If the employee was laid off with the understanding that the employment relationship ended, the employer will need to go through the new hire process with that employee. Because of the rollercoaster nature of the California’s reopening protocols, it’s important that employers keep in close contact with their legal counsel to make sure they’re appropriately handling their workforce and other employment issues arising from COVID-19.

Labor Commissioner’s Office Files Lawsuits against Uber and Lyft for Engaging in Systemic Wage Theft

Oakland — The Labor Commissioner’s Office has filed separate lawsuits against transportation companies Uber and Lyft for committing wage theft by misclassifying employees as independent contractors. Uber and Lyft have misclassified their drivers, which has deprived these workers of a host of legal protections in violation of California labor law, the lawsuits say.

The goal of the lawsuits is to enforce California labor laws and to ensure that drivers are not misclassified as independent contractors. In 2018, the California Supreme Court’s Dynamex ruling established the “ABC test” for determining whether a worker is an employee under various California labor laws. Assembly Bill 5, which went into effect on January 1, 2020, extended the ABC test to additional California labor laws. Under the ABC test, workers are considered employees unless they are free from control from the hiring entity, perform work outside of the hiring entity’s usual business, and engage in an independently established trade or occupation.

The lawsuits seek to recover amounts owed to all of Uber’s and Lyft’s drivers, including the nearly 5,000 drivers who have filed claims for owed wages with the Labor Commissioner’s Office. Moreover, the lawsuits seek recovery for a wider range of statutory violations and damages than those asserted in individual wage claims and other lawsuits.

“The Uber and Lyft business model rests on the misclassification of drivers as independent contractors,” said California Labor Commissioner Lilia García-Brower. “This leaves workers without protections such as paid sick leave and reimbursement of drivers’ expenses, as well as overtime and minimum wages.”

The lawsuits allege that by misclassifying workers, Uber and Lyft failed to meet their obligations as employers as required by California labor law—including to pay drivers at least minimum wage for all hours worked, to pay overtime compensation, to provide paid rest periods, to reimburse drivers for the cost of all equipment and supplies needed to perform their work and for work-related personal vehicle mileage. The suits also allege the companies failed to provide paid sick leave, to provide accurate itemized wage deduction statements, to timely pay all wages owed during and upon separation of employment, and to provide notice of employment-related information required by law.

The lawsuits, filed in Alameda County Superior Court, ask the court to order Uber and Lyft to stop misclassifying their employees and provide the protections available to all employees under the Labor Code. The suits also seek the recovery of unpaid wages, penalties and interest as well as civil penalties and any costs and reasonable attorneys’ fees incurred by the Labor Commissioner’s Office.  

The Labor Commissioner’s Office estimates that Uber and Lyft each employ more than 100,000 drivers. Amounts collected by the Labor Commissioner for unpaid wages, liquidated damages owed to workers, penalties owed to workers, and reimbursement of business expenses owed to workers, will be distributed to all drivers who worked for Uber or Lyft during the time period covered by this lawsuit, not just to those drivers who filed individual claims with the Labor Commissioner.

The California Labor Commissioner’s Office combats wage theft and unfair competition by investigating allegations of illegal and unfair business practices. The Labor Commissioner’s Office has launched an interdisciplinary outreach campaign, “Reaching Every Californian.” The campaign amplifies basic protections and builds pathways to impacted populations so that workers and employers understand workplace protections, obligations and how to ensure compliance with these laws.   Employees with work-related questions or complaints may contact DIR’s Call Center in English or Spanish at 844-LABOR-DIR (844-522-6734).

California Releases ‘Employer Playbook for a Safe Reopening

Jessica Mulholland July 27, 2020 Cal Chamber

On July 24, 2020, when the reported number of COVID-19 cases in California surpassed 425,000, Governor Gavin Newsom announced a new playbook — called the “Employer Playbook for a Safe Reopening” — to guide employers on how to provide a safe and clean environment for workers and customers to reduce the risk of spreading COVID-19.

“We want to continue to work in the spirit of collaboration and partnership with our employer community to educate,” Newsom said during the press conference, “not only employers large and small, but to help them educate employees as well.”

The 32-page Employer Playbook for a Safe Reopening includes a compilation of industry-specific guidance, checklists and tools to help employers open safely and mitigate risks associated with COVID-19.  

As previously reported and in accordance with the Governor’s resilience roadmap and industry guidelines, the playbook also specifies that before reopening, all facilities must:

1. Perform a detailed risk assessment and create a work site-specific COVID-19 prevention plan.
2. Train workers on how to limit COVID-19’s spread, which includes how to screen themselves for symptoms and when to stay home.
3. Set up individual control measures and screenings.
4. Put disinfection protocols in place.
5. Establish physical distancing guidelines.
6. Establish universal face covering requirements (with allowed exceptions) in accordance with California Department of Public Health (CDPH) guidelines (for further guidance on enforcing mask requirements, see Appendix A).

The state’s COVID-19 website for industry guidance recommends that businesses review the playbook guidance that’s relevant to their workplace, make a plan and put that plan into action. It also recommends posting your completed checklist “so everyone can know the steps you’ve taken” and to feel free to add more safety measures to the ones listed in the playbook.

Additional guidance released recently includes for services that can be provided outdoors, like hair, nail and massage services, and for outdoor dining, all in counties that have been on the Monitoring List for three consecutive days; and the CDPH issued guidance on the use of face coverings, which requires people to use face coverings when in public or common spaces. 

“Stopping the spread of COVID-19 depends on keeping our workers safe,” Newsom said in a press release. “The vital work they do every day puts them and their families at higher risk for exposure and infection. Taking action to protect them will help protect all Californians.”

Jessica Mulholland, Managing Editor, CalChamber

A Vaccine is Coming: Can Employers Require Employees to Take it?

Tuesday, July 28, 2020

As clinical trials continue across the world for a COVID-19 vaccine, many employers are asking whether they will be able to require employees to take the vaccine when it becomes available in the United States. Like with so many questions surrounding COVID-19, the answer is not entirely clear.  In general, employers can require vaccination as a term and condition of employment, but such practice is not without limitations or always recommended. 

The U.S. Occupational Safety and Health Administration (“OSHA”) has taken the position that employers can require employees to take influenza vaccines, for example, but emphasizes that employees “need to be properly informed of the benefits of vaccinations.”  OSHA also explains that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistleblower rights.”

In March 2020, the Equal Employment Opportunity Commission (“EEOC”) issued COVID-19 guidance specifically addressing the issue of whether employers covered by the Americans With Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) can compel all employees to take the influenza vaccine (noting that there is not yet a COVID-19 vaccine). In responding to this question, the EEOC explained that an employee could be entitled to an exemption from a mandatory vaccination under the ADA based on a disability that prevents the employee from taking the vaccine, which would be a reasonable accommodation that the employer would be required to grant unless it would result in undue hardship to the employer.  Under the ADA, “undue hardship” is defined as “significant difficulty or expense” incurred by the employer in providing an accommodation.   Additionally, Title VII provides that once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from taking the vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship to the employer as defined by Title VII, a lower standard than under the ADA.  Under Title VII, employers do not need to grant religious accommodation requests that result in more than a de minimis cost to the operation of the employer’s business.  However, analogous state laws may impose stricter standards. 

In light of these exemptions and the risk of discrimination, the EEOC has advised that it is best practice to simply encourage employees to take the influenza vaccine rather than to mandate it.   Although we can presume that the EEOC will issue similar guidance when a COVID-19 vaccine is approved, the threat imposed by COVID-19 to the health and safety of others may make employers more inclined to require vaccination. Moreover, this threat and the necessary safety measures required of employers with unvaccinated employees may render exemptions to the COVID-19 vaccine more burdensome.  However, employers must also consider that employees may respond negatively to a vaccination requirement, and adverse reactions to the vaccine could lead to workers’ compensation claims.

Accordingly, employers contemplating any policy mandating a COVID-19 vaccine should be prepared to carefully consider the threat posed to the health and safety of their employees, the risk of future claims, and employee morale.  Moreover, employers must be prepared to carefully consider the reasons for any employee requests for exemptions.

© Polsinelli PC, Polsinelli LLP in California

All Signs Lead to Cal/OSHA Issuing COVID-19 Citations In the (Very) Near Future

Jul 29, 2020  By: Thomas B. Song

Governor Newsom’s televised news briefing on July 24, 2020, provided clues that enhanced enforcement of COVID-19 workplace safety is in the works.  Likely, in response to criticism of the perceived ineffective response to worker protection during COVID-19, labeling Cal/OSHA as a “remote” investigatory agency, staying at home while other workers risk health and safety on a daily basis.

Newsom announced that the spread of COVID-19 disproportionately affected the essential workforce – construction, truck drivers, healthcare and first responders, cashiers, grocery workers, agriculture and farm workers, etc. – and that plans were underway for “targeted” and “strategic enforcement of labor laws”, no doubt from Cal/OSHA. 

The Governor also mentioned the need to call out “bad actors” that give other companies in the industries a bad name.  He also indicated a need to “waive” or modify some timelines associated with regulatory enforcement, noting that it can take over six months to “move an enforcement action.”  While he did not mention a particular enforcement mechanism or jurisdiction, six months is the same amount of time that it takes for an expedited appeal to make its way through the Cal/OSHA Appeals Board process, including the time to issue a decision following an expedited hearing.  Coincidence?  Most likely not.

Cal/OSHA’s July 16th press release urged “all employers in California to carefully review and follow the state’s COVID-19 workplace safety and health guidance to ensure their workers are protected from the virus.”  The new Cal/OSHA Chief, Doug Parker, reinforced that “[e]xisting regulations require employers to implement effective measures to protect employees from worksite hazards, including recognized health hazards such as COVID-19,” and reminded employers that, “[w]e’ve designed guidance documents for more than 30 industries so employers have a roadmap.”

Although not specifically mentioned by the Chief, “existing regulations” is an obvious inference to the Injury and Illness Prevention Program (IIPP) regulation, which (as we’ve already discussed in prior blog articles) requires all employers in California to have effective measures in place to address known hazards in the workplace, including the threat of COVID-19.  (For more information on the IIPP, see CDF’s past articles from earlier this summer [here] and [here].)

Also, unlike the onerous Federal OSHA “General Duty Clause” – which requires a hazard to be “likely to cause serious injury or death” – no such standard is required under California’s IIPP mandate.  An IIPP violation is often a “General-classification,” which only requires a “relationship to occupational safety and health of employees.”  Needless to say, that with all the industry guidance put out by Cal/OSHA, Cal/OSHA will have a strong case against employers that do not incorporate the listed precautions into their IIPPs, or otherwise do not take the COVID-19 guidance seriously. All the signs point to stricter enforcement of COVID-19 workplace safety laws in the very near future, and most likely in the form of Cal/OSHA citations targeted against some of the “bad actors” mentioned by the governor.  California employers, whether essential businesses or not, should take heed of the guidance, incorporate appropriate COVID-19 workplace protections into their IIPPs and train their workforce on protection against COVID-19 as soon as possible.

What Businesses Can Do to Ease the Transition When Reopening Their Doors

As governments start easing stay-at-home orders and other restrictions, businesses that closed their doors to help contain the COVID-19 spread will be permitted to reopen, some sooner than others and most on a gradual basis. Often broad and sometimes inconsistent guidance from federal, state and local governments creates confusion as to when, and to what extent, different businesses can reopen. Even for those that can fully reopen, the staggered and phased reopening of other companies further blurs business outlooks and prospects. It is clear, however, that each business must create new workplace measures and policies to safely and effectively reopen.

The pandemic has impacted nearly all businesses, especially those forced to reduce operations or close completely. Most have never faced situations like those precipitated by COVID-19, and thus, will be navigating unchartered waters both from a business and employer perspective. The ultimate best course of action will differ from business to business. This article highlights some of the key considerations to reopening from a business and employer perspective.

1. Providing a Safe and Healthful Workplace: The Occupational Safety and Health Act (the Act) requires that all employees be given a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to” employees. The scope of this duty takes on a new meaning in the context of the COVID-19 pandemic. The Occupational Safety and Health Administration (OSHA) has made clear that the Act and OSHA requirements and standards apply to prevent an employee’s exposure to COVID-19 at work. Both OSHA and the Centers for Disease Control and Prevention have issued guidance on steps employers can take to reduce an employee’s risk of exposure to COVID-19 in the workplace. In addition to guidance issued by these agencies, employers should also consider guidance issued by other federal agencies, as well as state and local entities.

The nature of the recommended steps varies based on the risk of exposure associated with the job at issue, with the most stringent recommendations applying to those jobs classified as very high risk, such as certain health care and morgue jobs. Employers should consider the following actions to ensure the safety and well-being of workers:

• Determine appropriate Personal Protective Equipment for workers, such as face masks, face shields, gloves, gowns and goggles.
• Enhance cleaning and sanitization procedures for the workplace. Employers should note not only the thoroughness of cleaning but the frequency, with some workplaces requiring cleaning multiple times a day.
• Maintain social distancing in the workplace, which may involve reconfiguring offices, conference rooms, cafeterias and other common areas; implementing staggered shifts; restricting in-person meetings with clients and customers; and limiting access to the workplace to only those cleared in advance and by appointment.
• Encourage good personal hygiene in the workplace, which may include making tissues, antibacterial soap and hand sanitizer readily available; promoting frequent hand washing; displaying posters in the workplace to prompt employees to practice good hygiene; reminding employees not to touch their mouth, nose or eyes with unclean hands; and instructing employees to cough or sneeze into a tissue or flexed elbow.
• Establish a policy setting forth standards to prevent the spread of infectious diseases in the workplace, like COVID-19. This policy may include guidelines for reporting symptoms, diagnosis or exposure to a communicable disease and responses to such reports, such as requiring the affected employee(s) to be sent home or remain at home, contact tracing and isolating affected employees.

COVID-19 is an ever-changing situation, resulting in frequent modifications to applicable guidelines. As a result, employers should regularly monitor guidance issued by federal, state and local entities to remain abreast of current recommendations and best practices.

2. Screening Employees for COVID-19: The U.S. Equal Employment Opportunity Commission’s (EEOC) guidance related to the COVID-19 pandemic indicates that employers may screen employees entering the workplace to determine if they may have COVID-19 without running afoul of the Americans With Disabilities Act. Currently, such screening may include standard questions about symptoms and travel history, measuring body temperature and administering a COVID-19 test before letting an employee enter the workplace. The EEOC emphasizes that the COVID-19 test must be accurate and reliable. All information obtained from the screening must be kept confidential and stored separately from an employee’s personnel file. Some businesses may also consider screening others who enter the workplace, including vendors, customers and other visitors.

3. Transitioning from Home to Office: Businesses starting to reopen will also face the transition of some or all employees from home back to the office. Given the nature of the pandemic, it is unlikely that requiring all employees to return to the office once doors reopen will be workable for logistical and health reasons. Instead, in developing a home-to-office plan, many factors should be considered, including:

• Whether employees should have the option to continue working from home for some time after reopening
• Whether certain jobs and employees are more critical to a business’s operations and require a physical presence in the office sooner than other jobs and employees
• Whether employees who are adequately fulfilling the job requirements from home should continue to work from home for some time after reopening
• Whether employees who have high-risk conditions or share a household with someone who has a high-risk condition should have the option to continue working from home for some time after reopening
• Whether employees without childcare should be allowed to continue to work from home or work an alternative schedule at the office until daycares reopen and summer camps become available
• Whether only a portion of employees should initially return to the office to test new processes, including screening measures and other safety procedures and protocols, and to maintain social distancing
•  Whether transitioning should take place in shifts, whether on a daily, weekly or another basis

4. Recalling Laid-Off or Furloughed Employees: Employers that furloughed or laid off employees due to COVID-19 may begin to recall them as businesses can reopen and restrictions are lifted. Employers are not required to rehire laid-off employees and may, instead, hire new employees. However, many employers may also choose to rehire their laid-off employees. In addition to changes precipitated by the lifting of restrictions, the Paycheck Protection Program (PPP), which is described below, has also prompted some businesses to recall previously laid-off and furloughed employees. Employers should consider having a written plan to govern the recalling of these employees to mitigate against claims of unlawful discrimination. This plan should be based, to the extent possible, on objective factors, such as jobs needed, years of service, work location and documented performance reviews.

5. Getting Your House in Order: A gradual or staged reopening of markets, businesses and industries means vendors, customers and clients may not be fully operational upon reopening. Take this opportunity to clean up your books and tackle previously neglected administrative tasks. Consider re-organizing or streamlining back-office functions. Doing so will position your company for success once your business ramps up to pre-pandemic levels.

6. Marketing: Your clients, customers and relationships need to know that you are preparing to reopen. Use advertising and social media platforms to inform the public that you are taking the proper precautions and ready to get back to work. Effective and optimistic communication can also reinvigorate your employees and position them for success upon returning to a “normal” work environment.

7. Maintaining Business Contacts: Most businesses are already in contact with their lenders and landlords. Each situation is unique and dependent on your lenders’ and landlords’ willingness to share your cash flow burdens. Still, businesses should request and consider taking advantage of all available relief and extensions on loan payments and rent reduction, deferral or abatement. Be mindful of the unintended tax consequences that could flow from significant loan and lease modifications and consult with your legal and tax advisors during this process.

Identify your most critical vendors, contact them early and keep open lines of communication regarding your ability to pay. Consider requesting discounts or extended payment plans where appropriate and available. Many vendors will have the same cash flow concerns and may be willing to liquidate their accounts receivable at a discount.

8. Conserving Cash: If your business has maintained healthy cash reserves, great! But avoid, where possible, dipping into or exhausting those reserves too soon. The road back to pre-pandemic levels is uncertain and may be prolonged. Instead, take advantage of available loans and grants. Consider liquidating accounts receivable by offering a discount or installment plan to customers and clients who may want to accelerate payment. Focus on utilizing available cash to maintain your workforce, keep your loans and leases in good standing, and preserve relationships with your most critical vendors.

9. Taking Advantage of Available Capital: The highly publicized PPP loan program administered by the U.S. Department of the Treasury (Treasury) and Small Business Administration (SBA) is providing, through banks, low-interest and potentially forgivable loan funds to qualifying businesses. The initial $349 billion of PPP funds was exhausted within 13 days. While Congress authorized an additional $310 billion in PPP funds on April 24, many expect this will soon run out as well. If you can obtain a PPP loan, use these funds for payroll expenses and other designated purposes. Be sure to document those expenses and payments during the measurement period.

If you are ineligible or missed out on PPP, other government-backed loans and grants may be available. Loans and grants are being made available under SBA’s Economic Injury Disaster Loan Program for certain businesses affected by COVID-19. The Treasury and Federal Reserve are also administering the Main Street Lending Program, providing $600 billion in loan funds to qualifying businesses. Many state governments are also providing financial assistance. The Louisiana Loan Portfolio Guaranty Program, for instance, is making low-interest loans of up to $100,000 to help eligible businesses recover from the pandemic. Consider taking advantage of these opportunities and consult with your banker and lawyer to help guide you through the process and advise you on any pitfalls.

COVID-19: Enforcing Mask Rules at Work

By CalChamber  July 13, 2020

Ask Why

While wearing a mask in the workplace is not law, it is recommended by local and state authorities, such as the California Department of Public Health (CDPH), that employees wear masks at work and maintain a distance of six feet from one another. This guidance not only protects customers from the spread of COVID-19, but also helps keep employees healthy and safe in the workplace.

The guidance and orders issued by the CDPH and other government agencies, Shaw tells listeners, is the appropriate reasoning an employer needs to establish a mask and social distancing policy at work.

But what if, Frank asks, an employee is found not wearing a mask?

Shaw says that enforcing mask rules is not about getting people in trouble. As with any other violation, an employer should seek out why the worker is not wearing a mask. Is the reason due to a medical condition or is it a political statement?

If the employee chooses not to wear a mask because of a political stance, Shaw recommends that the employer state that the employee is expected to comply with all of the company’s rules and regulations, and that violations are subject to discipline.

“…Employees have to know [that] even though we are getting some mixed messages in the media and there are some political issues out there, when it comes to your workplace, you have to follow the rules that the employer has set for you as long as those are appropriate rules,” Shaw says.

Moreover, she continues, the employer should communicate that the rules put into place are to keep all employees safe.

Medical Accommodations

If an employee is not wearing a mask because they have a medical condition, the employer should treat it like any other medical accommodation request, but should keep in mind that this situation, is slightly different due to the direct threat to everyone’s health and safety, Shaw explains.

“Just because somebody has a medical condition that precludes them from being able to wear a mask doesn’t mean they get to expose…people to the virus,” she says.

Should a worker have a medical condition that precludes wearing a mask, employers should find ways to maintain safety, such as allowing the employee to telework or finding other ways to get the employee into the workplace, Shaw says.

Shaw compares the situation to having a service animal. Employees with service animals still have to abide by certain rules. For example, a service dog has to behave and cannot relieve itself at work. Similarly, she says, even though an individual has the right to an accommodation, there are going to be limitations on that, especially given the direct threat that not wearing a mask presents.

Set Reminders

Sometimes, the reason an employee is not wearing a mask is simply because they forgot. At work, people are rushing to finish projects, or have to get up to retrieve a document from the printer, or perhaps are hurrying to attend a customer, Shaw says.

Employers need to have grace, she says, and realize that “people are going to make mistakes occasionally.”

Still, it is critical that employers enforce the rules, and they should be transparent about all of the company’s expectations, Shaw says.

Employers should also find ways to remind employees of the mask and social distancing requirements. Employers can buy posters and decals to space out six-foot distances or use masking tape to establish an employee’s work zone.

Inappropriate Graphics

Now that face masks are more widely available, Frank points out that masks have become the new fashion accessory, and masks might contain logos, designs and messages. Can an employer prohibit masks with certain words, imagery or decals?

Similar to a dress code policy, employers can prohibit masks that contain expletives, inappropriate graphics, or messaging that violates the company’s Equal Employment Opportunity Commission (EEOC) policy, Shaw explains.

Although an employer can prohibit masks with messaging altogether, if an employer asks that employees wear only a certain color of mask so that it matches their company’s shirt, then the mask becomes a “uniform” requirement, and the employer will have to provide the mask, Shaw explains.

“So don’t get too specific about the color or the style or the design,” she says. “But you are allowed to say…nothing with a printed message, nothing with an inappropriate graphic or logo or screen print on it.”

In other words, Frank says, it’s back to the basics, “taking COVID out and going back to the basics of what would you do in this circumstance to try to solve the puzzle.”

Shaw recommends employers exercise common sense and remember “our point is workplace safety; we’re trying to keep people safe and healthy.” If employers think about that as being the goal, it helps with what steps they actually take.

Recording, Reporting Work-Related COVID-19 Cases

James W. Ward  July 24, 2020 Cal Chamber

As COVID-19 cases increase in California, more employers are receiving notice of employees testing positive for the virus — but they may not be sure of when to record and report the cases given the amount of guidance issued by numerous agencies and public health officials at every level of government. This brief summary of employers’ obligations when an employee tests positive for COVID-19 should help.

When an employee tests positive for COVID-19, the first thing employers must do is send the employee home and follow the company’s COVID-19 workplace exposure/outbreak plan and applicable health mandates with respect to finding exposed close contacts, notifying and quarantining exposed employees, cleaning protocols, etc. Privacy laws restrict you from disclosing names of COVID-19 positive employees when notifying close contacts of potential exposure; employers must maintain confidentiality. A detailed California Department of Public Health (CDPH) memo guides employers through workplace outbreaks, including quarantine timelines, testing issues, CDC guidance and other topics.

Once that’s handled, the CDPH states that employers should contact their local health department to report confirmed COVID-19 cases in the workplace. The local health department may have specific reporting criteria and requirements. Additionally, if the COVID-19 positive employee lives in a different county/jurisdiction from the workplace, the employer should contact that jurisdiction’s health department.

Employers also must comply with certain recording and reporting requirements of the California Division of Occupational Safety and Health, better known as Cal/OSHA.

Cal/OSHA requires employers to record work-related illnesses on their Log 300 when one of the following things happen:

• Death.
• Days away from work.
• Restricted work or transfer to another job.
• Medical treatment beyond first aid.
• Loss of consciousness.
• A significant injury or illness diagnosed by a physician or other licensed health care professional.

COVID-19 cases could check several items on this list, so employers will likely have to record COVID-19 illnesses on their Log 300.

In its FAQ on the topic, Cal/OSHA states that COVID-19 cases should generally be lab confirmed, but confirmation is not necessary to trigger recording requirements. Due to testing shortages and other circumstances, there may be situations in which an employer must make a recordability determination even though testing did not occur. If the circumstances meet any of the criteria listed above, the case should be recorded. Cal/OSHA says employers should err on the side of recordability, but clarified that “days spent away from work” do not include days spent quarantined.

For recording purposes, an illness is presumed work-related if it results from events or exposure in the work environment, such as interaction with COVID-19 positive individuals, working in the same area or sharing items with COVID-19 positive individuals. Employers should evaluate the employee’s duties, environment and interactions to determine the likelihood the employee was exposed at work.

In some cases, employers may have to report COVID-19 cases directly to Cal/OSHA. Employers must report a serious illness to Cal/OSHA when it is contracted “in connection with any employment” and results in death or hospitalization other than observation or diagnostic testing. So, if an employee becomes ill at work and is admitted to the hospital, the employer must report it to Cal/OSHA immediately, but no later than eight hours after the employer knows about it.

Cal/OSHA guidance states that employers must report the serious illness regardless of whether it’s work-related. Also, employers should report serious illnesses if an employee becomes symptomatic outside of work, as long as there is some cause to believe the illness was contracted in connection with any employment, including, for example, other COVID-19 cases in the workplace, exposure to COVID-19 positive individuals, contact with the public, etc.

Employers may report a serious illness to Cal/OSHA via phone or email.

California Officials Rolling Back Reopening As Coronavirus Surge Creates New Crisis

Los Angeles Times, By Rong-Gong Lin II, Alex Wigglesworth July 13, 2020

With the coronavirus death toll in California jumping past 7,000 and cases continuing to surge, more parts of the state are rolling back reopening plans as they try desperately to slow outbreaks and prevent more hospitals from hitting capacity.

California has seen coronavirus cases and hospitalizations skyrocket in the last month as the economy has reopened and residents have gone back to summer socializing. Although the state clamped down by shutting bars and banning indoor dining in many areas, officials described the conditions as critical.

The rate at which COVID-19 tests are coming back positive in California over the previous seven days hit 8.3% on Sunday. That’s the highest percentage since April — a continuing sign that the coronavirus is spreading throughout the state, according to a Los Angeles Times analysis conducted over the weekend.

A week ago, on July 5, the so-called positivity rate over the previous seven days was 6.8%; and the Sunday before that, on June 28, it was 5.9%. The positivity rate in Los Angeles County is even worse than the statewide figure. On Friday, the seven-day positivity rate was 10% in L.A. County; in late May, that rate fell to a low of 4.6%.

Alarmed at the metrics, some Bay Area counties are scaling back.

Officials in Alameda County said they had been informed by the state that outdoor restaurant dining there was no longer allowed and restaurants could only be open for drive-through, pickup or delivery service. Indoor restaurant dining has never reopened in Alameda and several other Bay Area counties.

In Contra Costa County, officials issued an order Saturday prohibiting indoor religious services beginning Monday morning. Outdoor gatherings, including worship services and political protests, will still be allowed as long as rules on face coverings and physical distancing are followed.

Contra Costa County officials said in a statement that more than 8% of its COVID-19 tests were now coming back positive over the previous seven days, “a sign that the virus is spreading rapidly in the county and that the community must take immediate steps to reduce the spread of the coronavirus and prevent our healthcare system from becoming overwhelmed.”

“Contra Costa is especially concerned about the risk of COVID-19 transmission in indoor gatherings, and in gatherings that involve removing face coverings for eating and drinking,” officials said in a statement. Health authorities say they are now “concerned that the number of patients needing intensive care could quickly exceed capacity.”

In Santa Clara County, officials were rescinding part of the region’s relaxation orders that were scheduled to take effect Monday. The county had initially planned to allow indoor gatherings of up to 20 people. But officials now say they will not move forward.

“Our county is at a critical moment,” Dr. Sara Cody, the county’s health officer, said in a message posted Saturday on social media. “Right now, the numbers we are seeing aren’t going in the right direction. … The number of people hospitalized with COVID-19 is growing every day.”

The county is, however, allowing hair and nail salons, massage parlors and gyms to reopen starting Monday, with some strict new requirements not seen in other counties, such as prohibiting the indoor use of cardio machines, such as treadmills, elliptical machines, exercise bikes and other equipment that induces heavy breathing or an elevated heart rate. Officials said there were no plans to reopen bars or indoor dining rooms at restaurants for the foreseeable future.

Over the weekend, state health officials ordered Sonoma and Placer counties to prohibit many indoor businesses, including indoor dining, indoor winery tasting rooms and movie theaters.

Los Angeles County tallied more than 3,200 new cases of the virus Sunday and 14 related deaths, according to the Los Angeles Times’ coronavirus tracker.

With that, the county has now recorded more than 133,000 confirmed cases and more than 3,800 deaths. That means L.A. County residents account for 54% of the state’s coronavirus-related deaths, despite making up about one-quarter of the state’s population.

Hospitalizations also continue to climb, both statewide and in L.A. County.

As of Saturday, there were 6,322 people with confirmed coronavirus infections in hospitals statewide, a decrease of less than 1% from Friday’s total of 6,357. Saturday’s figure was the second-highest number of hospitalized patients with confirmed viral infections so far in this pandemic.

There were 1,806 people with confirmed viral infections in California’s intensive care units Saturday — tying the record set Friday for the highest such number.

Los Angeles County also recorded a new high in hospitalizations on Friday, with 2,093 people reported hospitalized with confirmed coronavirus infections; that number dropped less than 2% on Saturday, when 2,056 people were confirmed to be in the hospital.

In June, there were an average of about 1,500 patients with confirmed coronavirus infections in L.A. County hospitals.

“We have been battling this virus for several months and I know that ‘COVID fatigue’ is a very real thing,” Barbara Ferrer, the county health director, said in a statement. “I want to encourage everyone to remain vigilant and continue to use all the tools we have to prevent further transmission of the virus.”

Officials said the increase in transmission probably started around the week of Memorial Day and attributed it to more people being in contact with one another due to more workplaces reopening and more social gatherings taking place.

In an attempt to limit the increase, the county partially rolled back its economic reopening on orders from the state. Bars in a number of counties, including Los Angeles, were made to shut down again June 28, and restaurants were also told to stop in-person dining in many counties on July 1.

Of California’s 58 counties, 31 have now been required to close bars and indoor operations of certain businesses, which not only include dine-in restaurants, but also movie theaters, bowling alleys, arcades and museums. The orders affected more than 33 million Californians, or more than 85% of the state’s population.

Meanwhile, L.A. Mayor Eric Garcetti warned that the city could reimpose a mandatory stay-at-home order if conditions continued to worsen.

Vacation Policy Factors to Consider During COVID-19 Pandemic

Matthew J. Roberts, Esq.  July 13, 2020 -CalChamber\

A consequence of the prolonged shelter-in-place and stay-at-home orders issued as a result of the COVID-19 pandemic is dramatically reduced travel. As a result, during this time many employees are not taking earned vacation time and may not do so for months resulting in the following question from employers: Can we change our vacation policies as a result of the employees not using their time?

This is a tricky question. Generally, however, employers do have control over their vacation policies subject to certain rules. Below are some common ways in which an employer may address its vacation policies while staying within compliance.

Accrual Caps

California law allows employers to set reasonable caps on vacation accruals. Accrual caps mean that the employee no longer accrues vacation time while they’re at the cap.

Although there’s no set standard on what a reasonable cap may be, commonly caps meet this requirement when they are no less than 1.5 to 2 times the annual rate for employees. This is because employees need to be provided a reasonable opportunity to take all the vacation that they earn within a year.

So, for example, an employee who accrues 40 hours of vacation a year should have a cap of no less than 60 hours before they stop accruing vacation.

Some employers who have already instituted caps want to temporarily increase the cap as a benefit to the employee since there’s little incentive to use vacation during a shelter-in-place order.

Employers may increase or decrease their caps; however, California prohibits “use it or lose it” vacation policies. For example, if an employee has a 200-hour cap, and the employer decided to temporarily increase that cap to 240 for the rest of year, the employer cannot take away any vacation hours in excess of 200 once the employer decides to return the cap to that level.

Cash-Out Policies

California law considers vacation hours to be vested wages. This is why vacation hours must be paid out along with final wages. California law allows employers to cash-out vacation hours; however, the cash-out must be paid at the employee’s current rate of pay.

Unlimited Vacation

Some employers have moved to a new type of vacation benefit where the employee has unlimited hours and the employer no longer tracks accrued hours or pays out any vested vacation wages upon termination.

Employers who have an accrual method may switch to an unlimited one, but again, any hours the employee accrued under the old policy cannot be forfeited.

Also, the law regarding this type of policy is unsettled. Any employer considering switching to an unlimited policy should consult with legal counsel to evaluate the risks.

Required Usage

Employers may require employees to take vacation at certain times of the year. However, internal Labor Commissioner guidance requires that employers provide reasonable advance notice of the requirement. The Labor Commissioner determined that 90 days would constitute reasonable advance notice.

In general, the Labor Commissioner will handle any vacation claims based on the principles of equity and fairness. So, where an employer wants to change its vacation policy, it should keep those principles in mind along with the rules under California law.

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

More Time to Apply for Paycheck Protection Program Loans

By CalChamber  July 16, 2020

Protection Program (PPP) loans to August 8, 2020.

An estimated $130 billion in funding remains for the program, which offers loans to help small businesses with fewer than 500 employees stay in business and keep workers employed.

Employers in need of assistance and who have not yet obtained a loan are encouraged to speak with a lender as soon as possible.

The PPP Extension Act signed on July 4 extends only the loan application deadline and does not expand the program.

Legislation signed on June 5 amended the original PPP and aimed to clarify matters such as how and when the funds should be spent and how to handle re-staffing problems.

The key aspect of the PPP is that the loans provided can be fully forgiven without repayment if the employer meets certain conditions, including spending the funds only on certain costs.

A summary of the June 5 revisions appeared in the June 12 Alert.

Information about the PPP loan, including links to an EZ application requiring fewer calculations and less documentation for eligible borrowers, and the full forgiveness application—both released on June 16—is available on the U.S. Small Business Administration web page about the program, located here.

 

California Governor Re-Closes Numerous Businesses Effective Immediately

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

Citing concerns about COVID cases being on the rise in California, today Governor Newsom announced a number of businesses that are being required to close again, effective immediately.  Statewide, the following businesses are required to close indoor operations:

• Dine-in restaurants
• Wineries and tasting rooms
• Movie theaters
• Family entertainment centers (for example: bowling alleys, miniature golf, batting cages and arcades)
• Zoos and museums
• Cardrooms

Additionally, bars, brewpubs, breweries, and pubs must close all operations, both indoor and outdoor, statewide.

On top of these statewide closures, there are additional closures of indoor facilities in 31 different counties for the following services/activities:

• Fitness centers and gyms
• Worship services
• Protests
• Offices for non-essential sectors
• Personal care services, like nail salons, body waxing and tattoo parlors
• Hair salons and barbershops
• Malls

Here are the counties affected by these additional closures (additional counties may be added to the list in the coming days):

• Colusa
• Contra Costa
• Fresno
• Glenn
• Imperial
• Kings
• Los Angeles
• Madera
• Marin
• Merced
• Monterey
• Napa
• Orange
• Placer
• Riverside
• Sacramento
• San Benito
• San Bernardino
• San Diego
• San Joaquin
• Santa Barbara
• Solano
• Sonoma
• Stanislaus
• Sutter
• Tulare
• Yolo
• Yuba
• Ventura

There is no end date specified for today’s new closures.  This is very unfortunate news for California businesses, many of which have already been hit hard by the first round of closures. Today’s Order is available here https://covid19.ca.gov/roadmap-counties/.  Affected employers will need to re-evaluate which operations they need to close and which employees can still be permitted to report to work.  The importance of ensuring that safety protocols are in place and are followed at worksites that remain open cannot be understated.  The same is true of the need for employers to comply with all applicable paid leave laws and to avoid retaliation against employees who raise good faith safety-related concerns.  The flood gates have opened on the COVID-19-related lawsuits already and they are expected to keep coming.

CalWorkSafety & HR, LLC is here to help you evaluate and respond to these orders as they apply to your operations.  Call your consultant or Don Dressler at 949-533-3742