Tag Archives: Safety

High Heat Warnings: How to Keep Outdoor Workers Safe

28 Aug

By Katie Culliton  August 18, 2020 33 Cal Chamber

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

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

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

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

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

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

Heat Illness and COVID-19

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

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

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

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

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

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

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

Keep Employees Safe: 7 Ergonomic Tips for Home

by Michele McGovern August 19, 2020

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

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

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

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

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

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

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

1. Make office benefits available

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

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

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

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

2. Set up computer, keyboard, mouse

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

For the keyboard:

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

For the mouse:

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

For the monitor:

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

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

3. Set up the chair

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

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

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

4. Light it up

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

The Occupational Safety and Health Administration suggests employees:

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

5. Follow the 20/20/20 Rule

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

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

6. Switch it up

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

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

7. Break away

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

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

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

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

17 Aug

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

PRODUCE ALL DOCUMENTS

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

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

Paycheck Protection Program Loan Forgiveness Process Set to Begin August 10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Author: Michael Oliver Eckard 

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

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

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

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

[Emphasis in original.]

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

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

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.

What To Do When an Employee Tests Positive for COVID-19

13 Jul

COVID 19 what to do

By: Robin E. Largent  July 3, 2020 Carothers DiSante & Freudenberger LLP © 2020

We have been getting more and more questions from employers about what to do if they have an employee who reports that they have tested positive for COVID-19.  Cal-OSHA likely has been getting similar inquiries and, as a result, recently issued guidance for employers on the specific topic of handling outbreaks in the workplace.  That guidance is here.  Importantly, Cal-OSHA cautions that even a single positive case may quickly turn into an outbreak among employees.  Furthermore, because workplace circumstances and settings vary greatly, Cal-OSHA recommends that employers contact and consult with their local health department to plan and coordinate a response.

In addition to working with the local health department on specific responses protocols, the employer also must keep in mind Cal-OSHA reporting requirements.  Employers must report serious injuries, illnesses or deaths in the workplace immediately.  Cal-OSHA instructs that for COVID-19 purposes, this means COVID-19 related inpatient hospitalizations or deaths, and employers should report these events even if work-relatedness is uncertain.

Employers must also keep in mind Governor Newsom’s May 6, 2020 Executive Order providing, for workers’ compensation coverage purposes, that any case of COVID-19 contracted between March 19, 2020 and July 5, 2020 by an employee who works outside the home, is presumed to have occurred in the course of employment.  This presumption is rebuttable (e.g. the employee lives with a non-employee who had COVID-19), but the employer does not get to decide whether or not the virus was contracted at work.  The employer should give the employee a work comp form and let the carrier determine coverage.

Although the employer should confer with the local health department on specific protocols for handling a workplace outbreak involving one or more employees, some things that employers will need to consider are the following:

  • Informing coworkers who may have come into contact with the infected employee that an employee (maintain confidentiality of the employee’s identity to the extent practicable) has tested positive;
  • Consider providing COVID-19 testing for other employees.  Remember that if testing is required by the employer, the expense must be paid for by the employer, and the employees must be paid for the time they spend undergoing testing.  Also remember that employees cannot be required to undergo COVID-19 antibody testing, but only testing for active infection.
  • Where testing is not feasible, try to utilize contact tracing to identify those who have had close contact with the infected employee, and advise those close contacts to quarantine at home for 14 days from their last known contact with the infected employee.  If the outbreak involves numerous employees with close contacts with the infected employee, consider closing the worksite temporarily and advising all employees to quarantine.  “Close contact” means spending 15 minutes or more within 6 feet of a COVID-19 positive employee during their infectious period, which includes 48 hours before they became symptomatic.
  • While at home, quarantined employees should monitor for any potential symptoms of COVID-19 (fever, shortness of breath, cough, loss of taste/smell, congestion/runny nose, sore throat, fatigue, chills, nausea/vomiting, diarrhea) and should be encouraged to get a COVID-19 test if they develop symptoms.
  • The work area used by the infected employee(s) must be cleaned and disinfected (and such cleaning and disinfecting of the workplace should be done regularly).
  • Employees who are still reporting to work should not share equipment (particularly equipment that comes into contact with the face or mouth, such as telephones and headsets), and employees must be reminded to follow safety protocols established by the CDF and local guidance (including wearing face coverings and social distancing).  Of course, all employees should be reminded not to report to work with symptoms.

Employers must also follow current guidance on when it is safe to allow an employee who has tested positive for COVID-19 to return to work.  The answer varies depending on whether the employee has symptoms or is asymptomatic.  The answer also varies depending on whether COVID-19 testing is available and utilized.  According to the CDC guidance, if an employee tests positive and has symptoms, the employee may return to the workplace either:  (1) 72 hours after the employee is fever-free (without the use of fever-reducing medicine), AND respiratory symptoms (cough, shortness of breath) have improved, AND at least 10 days have passed since symptoms first appeared; OR (2) after the employee has tested negative for COVID-19 two consecutive times, at least 24 hours apart, and employee is fever-free (without use of fever reducing medicine) and any respiratory symptoms have improved.

If an employee tests positive but is asymptomatic, the employee may return to the workplace (1) after at least 10 days have passed since they tested positive if they still have not developed any symptoms; or (2) after the employee has two consecutive negative COVID-19 tests, at least 24 hours apart.  Cal-OSHA advises that employers defer to their local health department on specific return to work criteria that they should follow.

Of course, any time an employee cannot work due to COVID-19 (testing positive, being ill with symptoms, or being quarantined due to close contact with an infected individual), the employer needs to be sure the employee is informed of paid time off rights and provided with applicable paid time off.  This may include paid sick leave under the federal Families First Coronavirus Response Act (FFCRA) and/or state and local paid sick leave laws.  The cities of San Francisco, Oakland, San Jose, Los Angeles, and Long Beach all have COVID-19 sick leave ordinances that supplement pre-existing paid sick leave and/or apply to employers who are not covered by the FFCRA.  By way of reminder, the FFCRA provides up to 80 hours of paid sick leave to employees who work for private sector employers with less than 500 employees (or who work for a public employer).

If you are an employer with 50 or more employees and you have an employee who becomes seriously ill with COVID-19 (e.g. the employee is hospitalized), keep in mind that this could also trigger a lengthier entitlement to up to twelve weeks of unpaid leave under the FMLA/CFRA.

CA Court Grants TRO in Fast Food Covid-19 Case

On June 16, 2020, several employees at a McDonald’s franchise in Oakland, California filed a lawsuit against their employer, in a matter entitled Hernandez v. VES McDonald’s (No. RG20064825, Superior Court of California, County of Alameda). The lawsuit consists of five plaintiffs, three of whom are employees who allege that they became sick with COVID-19 while working at the restaurant and “unknowingly” spread the disease to family and other members in their communities. The fourth is the infant son of one of the plaintiffs who allegedly contracted COVID-19 from his mother. The final plaintiff is an employee who worked in the same restaurant. At the time the complaint was filed, he had not yet tested positive for COVID-19 but “fears becoming infected and spreading the disease to others.”

The plaintiffs allege causes of action for public nuisance, unfair and unlawful business practices, and violations of Oakland’s Emergency Paid Sick Leave Ordinance. The Oakland lawsuit comes approximately one month after employees at a Chicago-area McDonald’s filed suit alleging that their employer failed to take measures to keep them safe during the COVID-19 pandemic.

COVID-19 as a “public nuisance” is a novel theory being explored by a number of aggressive plaintiffs’ counsel in California. California Civil Code Section 3480 provides: “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”

On June 22, 2020, Judge Patrick R. McKinney of the Superior Court of California, County of Alameda issued a temporary restraining order (TRO). Pursuant to the TRO, the Oakland franchise will remain closed until July 2, 2020, at which point the court will determine whether a preliminary injunction should be issued. The court ordered that the franchise may reopen and resume operations before July 2, pending approval from the Alameda County Department of Environmental Health.

Judge_gavel

Addressing Race Discrimination Complaints in the Workplace

July 6, 2020

Following recent events, employers may experience an increase in the number of race discrimination complaints in the workplace. Many organisations in the United Kingdom, in the United States, and globally have made public statements to reinforce their commitment to racial equality.

General Complaints of Race Discrimination

Not all race discrimination complaints raised in the workplace are from existing or former employees; complaints may be made from individuals outside the organisation relating to the culture of the workplace and may not be specific. Such complaints could be from a member of the public, an external social media platform, or could even be anonymous. It is important that organisations take such complaints seriously. Employers may want to address such complaints promptly and take appropriate action where necessary. Although a complaint may not be specific, employers still may want to investigate it.

A first step may be to explore the allegation with the complainant—if the complainant is known—in more detail to enable a full investigation to be carried out. If that is not possible, a more general cultural investigation may be worthwhile in order to determine if there is any truth behind the allegations. Employers may consider appointing an investigator to speak to a small group of employees about their experiences working for the company and follow up on any issues that may become known. The group of employees could be identified through asking people to volunteer, chosen at random, or individually selected to represent a cross-section of the organisation. The investigator could be someone internal (seen as neutral), or alternatively, an external investigator could be appointed.

Anonymous Complaints

Dealing with anonymous complaints can be difficult for employers, especially when it is not clear as to where the complaints originated. This however, does not mean that complaints should be ignored. Where it is not known if a complainant is external, employers may want to be cautious when sharing details about an investigation or the findings unless the complainant reveals his or her identity. In a situation where contact can be made with the complainant despite his or her anonymity—for example, the organisation receives an email that does not identify the sender—then the complainant may be willing to speak, provided it is on an anonymous basis. In this situation, an employer may want to appoint an impartial person to investigate the allegations, such as an external investigator. Employers may want to assure the complainant that his or her anonymity will be protected and any victimisation will not be tolerated.

How Can Employers Foster Non-discriminatory Workplaces?

Organisations may want to review their non-discrimination and anti-harassment policies (which may be included within a respectful workplace policy) to ensure they include specific examples of conduct that would amount to racial harassment, making sure it is clear that such conduct will not be tolerated. Employers also may want to reiterate that any employee who breaches the organisation’s non-discrimination and anti-harassment policies may be subject to disciplinary action, which could include termination of employment.

Employers also may want to train managers on the policies so that they are competent to handle discriminatory or harassing behaviour that may arise in the workplace.

Employers may want to consider developing a focus group or employee forum to deal with diversity and inclusion issues in the workplace. The purpose of the group/forum would be to form a bridge between employees and senior management to report diversity issues, and a resource to whom employees can address complaints (including anonymous complaints) in addition to human resources.

Employers that take the time to consider the above action points may find they will encourage diverse and inclusive workplaces where all employees feel valued and supported.

Daniella McGuigan is a partner is the London office of Ogletree Deakins.

Addressing Race Discrimination

2020 Heat Illness Standards

23 Apr

April 2020

Temperatures across Southern CA and the San Joaquin Valley will be reaching close to 90 degrees by the end of this week. With temperatures increasing the likelihood of employees falling victim to Heat Illness is high.

Take measures to prevent any employees from being affected by the heat this week and in the upcoming spring and summer months with preventative training.

 

*Monitor Your Local Weather by Phone or News*

California Employers Are Required to Take
These 4 Steps to Prevent Heat Illness:

Training
Train all employees and supervisors about heat illness prevention.
 
Water
Provide enough fresh water so that each employee can drink at least one quart per hour, or four 8-ounce glasses, of water per hour, and encourage them to do so.
Shade @ 80 Degrees
Provide access to shade and encourage employees to take a cool-down rest in the shade for at least five minutes. They should not wait until they feel sick to cool down.
Planning
Develop and implement written procedures for complying with the Cal/OSHA Heat Illness Prevention Standard. Have copies of written standards on hand where employees are working, including remote locations.
 
CalWorkSafety & HR Helps You With Compliance:

Written Plans, Training and other Compliance Issues.

Learn More: email: dondressler1@hotmail.com

California Orders Insurers to Pay Back Premiums Due to Virus

20 Apr

 

Ricardo

Ricardo Lara, California’s Insurance Commissioner

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

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

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

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

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

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

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

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

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

Workers Exposed to COVID-19

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

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

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

New Guidance for Critical Infrastructure Employers

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

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

Who is Critical?

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

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

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

Interplay with Shelter in Place Orders

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

Next Steps

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

Flash Report: Cal/OSHA Receiving Thousands of COVID Complaints

Published on: April 17, 2020 Cal/OSHA Reporter

Cal Osha

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

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

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

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

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

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

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

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

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

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

Guide to Safety/Health Requirements During COVID-19 Outbreak

13 Apr

Outbreak

Apr 7 2020 – COVID-19 (Coronavirus), Health and Safety – HRWatchdog

Cal/OSHA has compiled and posted extensive guidance recommendations and requirements from many sources to assist the employer during this time.

As an employer, where can I find safety and health information about the coronavirus (COVID-19) outbreak that is affecting my ability to do business?

The state Division of Occupational Safety and Health (DOSH), commonly known as Cal/OSHA, has developed a website compiling relevant information explaining an employer’s methods and responsibilities for maintaining a safe and healthful workplace during the COVID-19 pandemic.

Since our introduction to COVID-19 in early January, the public has been increasingly inundated by various prognosticators as to what is happening and the best way to survive in the environment where we now find ourselves.

Fortunately, even when it appears that chaos is the norm, there are individuals and groups who are practical, logical and patient enough to research and develop interim solutions to mitigate to the best extent humanly possible with existing information the situation that is occurring.

Extensive Guidance

Cal/OSHA has compiled and posted extensive guidance recommendations and requirements from many sources to assist the employer during this time.

To access the guidance on requirements to protect workers from coronavirus, start at the Department of Industrial Relations website, and click on the bold banner declaring “Cal/OSHA Safety Guidance on Coronavirus.” This opens to a webpage containing a table of contents of websites for various areas that may or may not be applicable to your particular situation.

There are two references to “General Industry.” The first, Cal/OSHA Interim Guidelines for General Industry on 2019 Novel Coronavirus Disease (COVID-19), is the reader’s digest version. It details the employers covered and not covered by the Aerosol Transmissible Diseases Standard and reminds webpage visitors of other Cal/OSHA regulations — such as the Injury and Illness Prevention Program (IIPP) — that apply to all employers.

The second reference is a link to download and print a PDF brochure providing some of the information covered on the webpage.

On the “Cal/OSHA Interim Guidelines” webpage is a link to the Centers for Disease Control and Prevention (CDC), which offers considerably more detailed recommendations on its Interim Guidance for Businesses and Employers to Plan and Respond to Coronavirus Disease 2019.

Both the Cal/OSHA and CDC interim guideline pages contain website references that should be reviewed for information that may be relevant to your industry.

Note that the interim guidelines are subject to change.

Also, the Cal/OSHA webpage includes a link to the daily update page for the California Department of Public Health.

Model Policies and Forms for the New Emergency Paid Sick and Paid FMLA Leave? Here are the Details

FMLA

By Jeff Nowak on April 9, 2020  Littler Law Firm

Under the Families First Coronavirus Act (FFCRA), employers with fewer than 500 employees are required to provide paid sick leave (EPSL) and paid FMLA leave (FMLA+) for certain reasons related to the Coronavirus pandemic. The law went into effect April 1 and its obligations continue through December 31, 2020.

Employers need policies and forms to comply with this new law.

We now have these policies and forms ready for you.

Why Do You Need a New Policy and Forms to Comply with this New Law?

This new law is fraught with compliance issues for employers.  Take, for instance, these risky scenarios for employers that do not document an employee’s leave request:

  • Your employee, Johnny, does not have symptoms of COVID-19 but insists that he needs to take off work to avoid any exposure. Is he eligible to take EPSL? If you and Johnny later dispute the reason for his need for leave, do you have a leave request form from Johnny to back up your story? Nope.
  • One of your employees, Betty, sought FMLA+ for a COVID-19 related reason, but a dispute later arises over whether you improperly denied her intermittent leave to care for her child whose school was closed. You recall that she requested continuous leave, but you have nothing in writing confirming that fact.
  • You require your employee, Gnarls, to exhaust his employer-provided PTO at the same time he is taking EPSL. After the fact, he claims that he did not give you approval to burn his accrued paid leave at the same time he was taking EPSL .  You recall him telling you to apply his accrued leave, but you have nothing in writing to confirm. Is this a violation of the law?

This hastily-drafted law is a mess, and it undoubtedly will create liability for employers that fail to document the employee’s request for EPSL or FMLA+.  Employer compliance is made even more difficult because the Department of Labor has made clear that it will not be publishing model policy language or model forms for employers to use for EPSL or FMLA+.

This creates significant compliance risks.

Employers undoubtedly want to make their employees aware not only of their leave entitlement under this new law, but also the expectations for requesting and taking EPSL or FMLA+. Additionally, it also is critical that employers obtain in writing their employees’ request for leave, including whether they are requesting intermittent leave (and why), whether they want other forms of paid leave to run instead of or concurrently with EPSL and FMLA+, among other important issues.

Wage and Hour Considerations for Remote Workers

Apr 10 2020 – COVID-19 (Coronavirus), Exempt/Nonexempt – Bianca Saad

Wage

Pet co-workers have fewer wage and hour obligations.

How do an employer’s pay obligations differ when an hourly/nonexempt employee is working remotely from home?

It’s important to keep in mind that when having a nonexempt employee work remotely, your obligations under California’s wage and hour laws remain the same, and you need to ensure you have measures in place to maintain accurate records of the employees’ hours worked.

In addition to accurately tracking all hours worked by your nonexempt remote employees, it’s critical to ensure they take required meal and rest breaks, get paid for any overtime hours and are not engaging in “off-the-clock” work (there is no such thing in California).

Establishing a remote work/telecommuting policy is a great way to communicate your expectations to your remote employees, particularly when it comes to keeping an accurate record of their hours worked, including overtime, as well as taking their appropriate meal and rest breaks.

In addition to having a telecommuting policy, you may choose to have your remote employees sign a telecommuting agreement, acknowledging their work schedule and other parameters within the telecommuting policy itself, such as whether they need approval to work overtime.

Accurate Timekeeping

Many employers already use some type of software that allows them to accurately record hours worked by an employee, and this should be no different for an employee working remotely.

By making sure your remote employees have access to your software or timekeeping system on their remote devices, you can accurately track and monitor your remote employees’ daily and weekly hours worked.

Meal and Rest Breaks

In California, nonexempt employees’ uninterrupted meal break of at least 30 minutes must begin no later than 4 hours and 59 minutes into their shift. Additionally, a nonexempt employee whose total daily work time is at least 3.5 hours must be permitted a rest break of at least 10 “net” minutes for every four hours worked, or “major fraction thereof.”

Because remote employees aren’t supervised in the same way that an on-site employee is, there can be some added challenges to monitoring breaks; however, having a clearly written meal and rest break policy can help combat those challenges.

In addition to your standard meal and rest break policy, your telecommuting policy can reiterate that employees are expected to take their uninterrupted, off-duty meal and rest breaks.

Overtime

In addition to ensuring that your remote employees take their meal and rest breaks, you also need to track and pay for any overtime hours worked.

As a reminder, California law requires all overtime hours to be paid (1.5 times the employee’s regular rate of pay for all hours worked beyond 8 hours in a workday or 40 hours in a work week), even if that time was not approved.

Having a clearly written telecommuting policy and agreement in place can help you to manage your remote employees’ work schedules and expectations regarding overtime.

Business Expenses Reimbursements

Employers must reimburse employees (whether nonexempt or exempt) for all “necessary expenditures or losses incurred” in the performance of their job duties (Labor Code Section 2802). This could include an employee’s personal cell phone, computer equipment and other services and/or supplies required for a remote employee to work.

When looking at whether an employee is entitled to reimbursement, the question will be whether it is “necessarily incurred.”

A clearly written telecommuting policy can help establish guidelines surrounding which expenses are reimbursable, as well as provide a method for employees to submit for reimbursement. Another approach might be to provide all necessary equipment for a remote worker, such as computers/laptops, printers and a phone — which could eliminate or reduce an employee’s need to use personal devices.

Bianca Saad, Employment Law Subject Matter Expert, CalChamber

California Laws Important This Summer of 2015

10 May

California continues to lead the way in expanding the rights of employees and obligations of employers in the workplace in many areas. This should come as no surprise to employers and HR since the California Fair Employment and Housing Act (FEHA) extends protections to almost 20 protected classes and California provides employees with more than one dozen types of leave.
Here are areas that California employers everywhere should take note of as summer 2015 approaches:
1. Paid Sick Leave
Cities around the nation have been active in enacting paid sick leave measures but so far, only three states, including California, have passed paid sick leave laws. Under the Healthy Workplaces, Healthy Families Act of 2014, covered California employers must provide paid sick leave to any employee working in California for 30 days at an accrual rate of one hour for every 30 hours worked.
The law takes effect on July 1, 2015, and it is critical that all California employers be aware of its stringent recordkeeping, notice and posting requirements and update their employee handbooks and paid time off policies accordingly.
2. Abusive Conduct
Awareness of workplace bullying is on the rise, yet no state has enacted a law specifically addressing abusive conduct in the workplace. However, under a new California law that took effect on January 1, 2015, covered California employers required to provide sexual harassment training to supervisors are now also required to include specific harassment training on abusive conduct.
Abusive conduct is conduct that “a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” It may include “repeated infliction of verbal abuse… verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” The law does not create a private cause of action for abusive conduct, but it does require employers to revisit and revise their sexual harassment training to add an abusive conduct component. Don Dressler Consulting provides this training at your location for your supervisors and managers, as well as all employees, if requested.
3. Heat Illness
If you have any employees working out of doors, including truck or other vehicle drivers operating non-air-conditioned vehicles, the company must have a written heat illness prevention plan detailing how it provides training about heat illness, access to plentiful cool drinking water, cooling off periods for employees showing signs of heat illness, and emergency plans when illness occurs. Heat conditions can be a problem at any temperature, but specific rules apply at 80 degrees Fahrenheit, and more stringent high heat rules apply at 95 degrees Fahrenheit.
4. Increased Protections for Immigrant Workers
With the US population becoming more diverse and immigrants entering the workforce at rapid rates, California has passed several measures in 2015 specifically providing increased protections for immigrants and foreign workers, including new laws:
• Prohibiting employers from reporting, or threatening to report, a worker’s (or the worker’s family member’s) immigration status or suspected immigration status to a government official because the worker exercised a right under the California Labor Code;
• Expanding the definition of an unfair immigration-related practice to include threatening to file or filing a false report or complaint with any state or federal agency;
• Prohibiting employers from discriminating, retaliating or taking adverse action against employees based on a lawful change of name, social security number, or federal employment authorization document;
• Making it a violation of FEHA for an employer to require an individual to present a driver’s license, unless a driver’s license is required by law; and
• Amending FEHA to specify that “national origin” discrimination includes discrimination on the basis of possessing a driver’s license issued by the state to undocumented persons who can submit satisfactory proof of identity and California residency.
To keep up to date with California law and to ensure you are in compliance, ask to be added to our The Bottom Line e-newsletter, produced by Don Dressler Consulting and CalWorkSafety.com.
You can sign up by sending us an email or going to our website at http://www.dondressler.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