Tag Archives: Cal/OSHA

New Study Finds Dining Out Increases Chances of Catching Coronavirus

21 Sep

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Notification Requirements

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

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

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

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

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

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

Enforcement Procedures

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

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

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

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

By Susan E. Groff and Jennifer S. Grock

September 17, 2020

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

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

Expanded Eligibility to Small Employers

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

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

Additional Covered Family Members and Expanded Reasons for Leave

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

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

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

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

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

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

14 Sep

By: Thomas B. Song Carothers DiSante & Freudenberger LLP

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

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

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

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

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

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

Published: Sep 09, 2020- Office of Governor

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

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

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

Legislation builds on previous investments and support for California small businesses

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

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

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

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

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

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

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

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

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

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

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

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

September 10, 2020 | From HRCalifornia Extra

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

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

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

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

FFCRA Recap

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

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

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

Emergency Paid Sick Leave Ordinances

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

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

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

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

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

17 Aug

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

PRODUCE ALL DOCUMENTS

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

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

Paycheck Protection Program Loan Forgiveness Process Set to Begin August 10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Author: Michael Oliver Eckard 

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

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

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

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

[Emphasis in original.]

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

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

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

10 Aug

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

4 Aug

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.

California Officials Rolling Back Reopening As Coronavirus Surge Creates New Crisis

20 Jul

Tracking Closures

Los Angeles Times, By Rong-Gong Lin IIAlex 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

Vacation Policies

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

PPP Loan

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.

 

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

1 Jun

May 30, 2020 from Payne & Fears PC

Reopen

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

Orange County

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

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

San Diego County

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

Los Angeles County

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

Other counties have similar requirements.

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

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

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

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

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

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

The Forgiveness Application answers many questions, including:

  1. Is there flexibility in determining Covered Period?

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

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

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

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

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

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

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

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

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

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

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

The Interim Final Rule clarifies that:

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

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

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

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

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

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

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

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

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

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

Cal/OSHA Expands Employer Injury and Illness Prevention Program Requirements

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

CalOsha

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

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

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

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

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

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

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

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

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

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

California’s Resilience Roadmap and Guidance to Employers for Stage Two Reopening

18 May

By Susan E. Groff, Cepideh Roufougar, Jonathan A. Siegel, Peter M. Waneis and Cecilie E. Read May 11, 2020

Appellate CourtCalifornia Governor Gavin Newsom has announced a plan to allow the limited reopening of some businesses beyond those in the category of essential critical infrastructure. This limited reopening is part of the “Resilience Roadmap” for California, the multi-phase plan to modify the statewide stay-at-home Order, originally issued on March 19, 2020, in response to the COVID-19 pandemic.

On May 4, 2020, the Governor issued an executive order directing Californians to continue to obey state public health directives. It also indicated the state was moving toward Stage Two, which would allow the reopening of “lower-risk businesses and spaces.”

The State Public Health Officer was directed to establish criteria and procedures to determine whether and how local jurisdictions may implement public health measures that depart from the statewide directives. This means that some counties and localities may be permitted to reopen businesses more quickly if certain benchmarks are met.

The following must be achieved by counties in order to move beyond the initial parts of Stage Two:

  1. No more than one new COVID-19 case per 10,000 people for 14 days.
  2. No COVID-19 deaths in the county for 14 days.
  3. Testing capacity to conduct 1.5 daily tests per 1,000 residents.
  4. At least 15 contact tracers per 100,000 residents.
  5. Ability to temporarily house at least 15 percent of county residents experiencing homelessness.
  6. Ability to accommodate at least a 35-percent surge in COVID-19 patients in local hospitals, in addition to usual care for non-COVID-19 patients.
  7. Skilled nursing facilities must have at least a two-week supply of personal protective equipment for workers. They also must have the ability to obtain more as supplies run low.

On May 7, the State Public Health Officer stated she would “progressively designate sectors, businesses, establishments, or activities that may reopen with certain modifications based on public health and safety needs.” She indicated she would be announcing these sectors and business on the state website roadmap site: https://covid19.ca.gov/roadmap/. In addition, she stated that to the extent such sectors are reopened, “Californians may leave their homes to work at, patronize, or otherwise engage with those businesses.”

Clothing stores, florists, bookstores, sporting goods stores, manufacturing businesses, and warehouse facilities were allowed to reopen on May 8, as the state moves into the first part of Stage Two. Retail establishments were limited to curbside pickup only.

In conjunction with allowing these reopenings, the state has issued guidance for businesses to follow if permitted to open. Before reopening, all facilities must:

  1. Perform a detailed risk assessment and implement a site-specific protection plan.
  2. Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have symptoms.
  3. Implement individual control measures and screenings.
  4. Implement disinfecting protocols.
  5. Implement physical distancing guidelines.

In addition to these general mandates, the state issued industry-specific guidance and checklists. Currently, the state has issued industry-specific guidance for the following sectors:

  1. Agriculture and livestock
  2. Auto dealerships
  3. Childcare
  4. Communication infrastructure
  5. Construction
  6. Delivery services
  7. Energy and utilities
  8. Food packing
  9. Hotels and lodging
  10. Life sciences
  11. Logistics and warehousing facilities
  12. Manufacturing
  13. Mining and logging
  14. Office workspaces
  15. Ports
  16. Public transit and intercity passenger rail
  17. Real estate transaction
  18. Retail

The Resilience Roadmap provides that these guidelines are to assist with ensuring a safer environment for workers and customers. Businesses may use effective alternative or innovative methods to build upon the guidelines.

Businesses looking to reopen should review any industry-specific guidance, prepare their reopening plans, and post any applicable checklist in the workplace in order to show customers and employees the business is actively working to help reduce and prevent the risk of spread of COVID-19.

As employers in Stage Two determine how to comply with recommendations and requirements under the state guidance, business owners should also review city and county shelter-in-place orders. Many county and city orders are currently more restrictive than the state’s amended order. Following issuance of the state’s guidance, many counties reiterated the requirements under their orders. In addition, many counties and cities have their own social distancing protocols for businesses that are open. Businesses seeking to reopen should ensure compliance with both state and local requirements.

As California continues to follow its roadmap, employers should monitor guidance and best practices to ensure safety for their employees.

Cal/OSHA Updates Its COVID-19 IIPP Guidance

By: Thomas B. Song Carothers DiSante & Freudenberger LLP © 2020

Cal New Update

Yesterday, Cal/OSHA greatly expanded its IIPP guidance pertaining to the hazard of COVID-19 in the workplace.  Employers who have not reviewed and updated their IIPPs to address COVID-19 should do so now.

Prior to yesterday, Cal/OSHA’s only guidance concerning IIPPs in relation to COVID-19 consisted of a general statement/reminder that employers are required to have an IIPP to protect employees from workplace hazards and that employers should determine if COVID-19 is a hazard in their workplace.  If so, employers must implement measures to prevent or reduce infection hazards and provide training on those measures.

Yesterday, Cal/OSHA updated its guidance on COVID-19 and IIPPs.  That guidance now states that, “For most California workplaces, adopting changes to their IIPP is mandatory since COVID-19 is widespread in the community.”  (Emphasis added.)

Cal/OSHA replaced their previous general guidance (consisting of two bullet points) with an extensive list of particular “infection prevention measures” and training topics.  Cal/OSHA specifically states to “include [those] infection prevention measures in a written IIPP when applicable to the workplace.”

However, since almost every listed infection prevention measure applies to most workplaces, does that mean that employers are now required physically to write down every measure in their IIPPs?  The most likely answer is “No.”  The required minimum elements of a written IIPP are already governed under Title 8, CCR 3203(a).  Therefore, without formal or emergency rule making (and appropriate notice and comment periods for the public), Cal/OSHA cannot, sua sponte add additional written requirements to the IIPP standard.

However, just because OSHA may not be able to cite you directly for failing to include all their applicable precautions in your written IIPP, that does not mean they cannot find other ways to find your IIPP ineffective.  In other words, it is assumed that should an employer’s IIPP be under review – for a COVID-related issue or otherwise – Cal/OSHA will use their listed infection prevention measures as a benchmark to gauge the effectiveness of an IIPP as it relates to COVID-19.

Therefore, while employers may not legally be required to list every single applicable Ca/OSHA precaution directly in their written IIPPs, it makes good sense to do so, or at a minimum, to be sure that you are actually implementing these precautions in the workplace.

Limits to Conducting Background Checks on Job Applicants

May 8 2020 – HRWatchdog

Background Checks

Several disclosure requirements and procedural steps are incumbent on both employers and the investigative consumer reporting agencies.

My company uses a background check company to conduct background checks on our applicants. Recently, I received a report that included a felony conviction from 1995. I thought there was a limit on how far back we could look for criminal convictions. Can I consider this conviction in making my hiring decision?

There are both state and federal laws that restrict how a background check can be conducted, and what type of information can be provided in a background check report.

The federal Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA) both restrict what background check companies (referred to in the statutes as “investigative consumer reporting agencies”) and prospective employers can and must do with regards to information on individuals who are applying for jobs.

Disclosure Requirements

There are a number of disclosure requirements and procedural steps incumbent on both employers and the investigative consumer reporting agencies.

In addition, and most relevant to your question, the ICRAA limits the type of information the investigative consumer reporting agency can provide to the prospective employer.

With regards to records of arrest, indictment or conviction of a crime, the investigative consumer reporting agency may provide information that is no more than seven years from the date of “disposition, release, or parole” (California Civil Code Section 1786.18(a)(7)).

Timing

In your particular situation, although the conviction is from 1995, the investigative consumer reporting agency may be legally entitled to provide you the information if the applicant was released from prison within the last seven years.

You will need some additional information from the background check company to be certain that it was legally authorized to provide you with that information.

The statutes don’t specifically prohibit an employer from considering information that is beyond the limits of what an investigative consumer reporting agency is allowed to provide; however, before considering such information in making your hiring decision, we would suggest consulting your own legal counsel.

Two Important Lessons From Recent Cal/OSHA Inspections

19 Mar

I recently handled two different cases for employers faced with Cal/OSHA citations and some important lessons were reinforced.
First, it is vital that every employer conduct and document periodic hazard inspections of their workplace. Both of these matters started with serious injuries leading to Cal/OSHA on-site inspections. As part of their process, the Cal/OSHA inspector asked for copies of recent hazard inspection documentation and also checked to safety of the work area involved in the injuries.
One case involved an employee whose hand was caught in a metal fabricating machine. Even though the employer had great safety training records, and the guards were on the machine, (not set as closely as they needed to be) the employer had no procedure, no record, nor regular hazard inspections. This process – usually involving a safety checklist – is a requirement of every Illness & Injury Prevention Plan or written safety plan. IIPPs have been required for over 25 years for every California employer with one (1) or more employee. As a result, the Cal/OSHA inspector cited the company for failure to inspect for hazards, and the supervisor for not being aware of hazards – 2 separate violations.
In another case, an employee was injured using a circular saw which did not have a guard. In this instance, the employee’s supervisor admitted to the inspector that she had never seen a guard on the machine in the 9 years she had worked at the location. The company was, in addition to being cited for a serious injury violation of an unguarded say, also cited for failure to identify a hazard and failure to correct a hazard. The case was made worse because the manager’s statement – which she was not obligated to give – was all the proof that Cal/OSHA needed to win their case.
Lessons to learn:
1- Always conduct regular hazard inspections of each work site. Document your inspection, correct anything wrong and save your inspection record.
2- Don’t volunteer information to a Cal/OSHA inspection. The inspector has a right to inspect, not to interrogate. What you say can and will be used against you. If there is talking to be done, bring in a knowledgeable safety consultant or attorney.
Don Dressler Consulting and CalWorkSafety.com are here to help you with these issues. We would rather help before an injury and before a Cal/OSHA citation, but in any event, whenever you have a question or problem, call us at 949-533-3742 or check our websites: http://www.dondressler.com and http://www.calworksafety.com

Time To Complete Your OSHA 300 Summaries

28 Jan

It’s the time of year to be filling out your OSHA 300 Annual summaries – as they are to be posted between February 1 and April 30 of every year.
A new Cal/OSHA Safety and Health Appeals Board decision makes accuracy and thoroughness important. In a decision issued December 24, 2014 (Merry Christmas to you!) the Cal/OSHA Board upheld a citation for an oil service provider for failing to fully complete the log of workplace injuries.
Cal/OSHA regulations require employers to log all work injuries. In this case, the employer filled out the log, but failed to complete the part of the form indicating “the object which caused the injury” or column F of Form 300. In upholding a fine against the employer, the Board stated, “filling in Form 300 to record injuries means to fill in all of the information called for on the form.”
(Key Energy Services LLC 13-R4D3-2239, Dec. 24, 2014)

Occupational Safety and Health Administration (OSHA) Form 300A, is the summary of job-related injuries and illnesses that occurred last year. Unless you have 10 or fewer employees or fall within one of the industries normally excused from the Occupational Safety and Health Act’s (OSH Act) recordkeeping and posting requirements, you’re required to post OSHA Form 300A (not the OSHA 300 form/log) annually from February 1 to April 30.

A complete set of Cal/OSHA 300 forms, including instructions, is available at: http://www.dir.ca.gov/dosh/dosh_publications/reckeepoverview.pdf. A complete list of exempt industries in the retail, services, finance, and real estate sectors is posted on OSHA’s website at http://www.osha.gov

If you need help either completing your OSHA Summary or in other OSHA compliance matters, our team of consultants at CalWorkSafety.com and Don Dressler Consulting are here to help. Check our websites at: http://www.CalWorkSafety.com and http://www.DonDressler.com