California passed an expanded COVID-19 Supplemental Paid Sick Leave statute (SPSL) in March, that included coverage for employees to get vaccinated. More recently, the County of Los Angeles passed an urgency ordinance on May 18th that mandates additional paid leave for some employees in unincorporated areas of the county to be vaccinated.

Covered Employers

This new ordinance would cover all employers in the unincorporated areas of the County of Los Angeles.

Paid Time Off Requirement

Full- and part-time employees who have exhausted time off under the state SPSL and who perform any work in the unincorporated areas of Los Angeles County are eligible for the new Los Angeles County paid time off entitlement.

Full-time employees, who are defined as either those employees designated by the employer as full-time or who worked or were scheduled to work on average at least 40 hours per week in the two weeks preceding their leave, are entitled to use up to 4 hours of additional paid time off, per vaccination injection. Part-time employees would be entitled to a prorated portion of additional paid time off.

Notification Requirement

Covered employers must post in a conspicuous place a written notice that will be made available electronically by the Los Angeles County Department of Consumer and Business Affairs. However, the posting is not yet available on the county’s website.

Record-Keeping Requirement

Employers will be required to keep records that show compliance with the ordinance including payroll records for a four-year period.

Operative Period

As an urgency ordinance, the ordinance went into effect immediately. However, the ordinance applies retroactively to January 1, 2021, similar to the state SPSL. The ordinance will sunset on August 31, 2021.

Jackson Lewis will continue to track state and local regulations pertaining to COVID-19 in the workplace. If you have questions about the new Los Angeles County ordinance or issues pertaining to COVID-19 leave requirements, please contact a Jackson Lewis attorney to discuss.

What is an employer’s risk in terminating an employee who has suffered an injury or becomes disabled and no longer can perform the essential functions of the position?  How can that risk be lowered?

The Seventh Circuit Court of Appeals recently addressed this issue in Conners v. Wilkie, a lawsuit brought by a licensed practical nurse who had worked at a healthcare center operated by the U.S. Department of Veterans Affairs.  Unfortunately, five years after she was hired, Ms. Conners was hit by a car and suffered severe injuries that seriously impeded her ability to perform most of her nursing duties.  Her supervisor initially permitted her to retain her LPN position but radically reduced her responsibilities.  After more than two years in that status, the VA concluded that she could not perform the essential duties of an LPN even with reasonable accommodations.  The VA attempted to work with Ms. Conners on an acceptable reassignment, but those efforts failed.  Over two years after her accident, the VA terminated Ms. Conners’ employment.  She sued and lost on summary judgment.  On appeal, she alleged that the agency violated her rights under the Rehabilitation Act by failing to accommodate her disability.

The Rehabilitation Act borrows the definition of a qualified individual definition from the Americans With Disabilities Act, which has a two-step inquiry:  (1) does the plaintiff have the basic qualifications required for the position, such as educational prerequisites, employment experience, skills or licenses; and (2) can the plaintiff perform the essential functions of the job with or without reasonable accommodations.  To determine whether a job duty is an essential function of the position, courts consider the employer’s judgment, the employee’s written job description, the amount of time the employee spends performing the function, and the experiences of past and current workers.

Ms. Conners claimed that she was able to perform a reduced set of duties after the accident, which demonstrated that she was capable of performing the essential functions of her position.  However, an employer need not create a new job or strip a current job of its principal duties to accommodate a disabled employee.  Ms. Conners alleged that the VA failed to engage in the interactive process to identify reasonable accommodations for her disability.  Because Ms. Conners was unable to prove that she was qualified to perform her LPN job with accommodations, any failure to engage in the interactive process was irrelevant.

While the VA prevailed in this lawsuit, the cost was considerable:  extensive discovery, preparing and responding to cross-motions for summary judgment, and briefing an appeal.  It is unfortunate and sad when an employee, because of an accident or disability, can no longer perform the essential functions of their position.  It is fair to both the employee and the employer to address the employee’s new limitations as early as practicable to determine whether the employee can perform the essential functions of the position with reasonable accommodations.  Allowing an employee to self-limit duties and not perform an essential function of a position for an extended period of time may give the employee the expectation that they are performing the essential functions of the position.  Setting employee expectations is often key to avoiding litigation.

On May 20th, the Cal/OSHA Standards Board was set to vote on revisions to COVID-19 Emergency Temporary Standards (“ETS”).

The evening before the vote the Deputy Chief for the Division of Occupational Safety and Health (“Division”) submitted a request that the Standards Board not to vote on proposed revisions and instead allow the Division to submit new proposals that would align with updated guidance from the CDC and state agencies.

While the proposed changes were intended to adjust the ETS to new developments pertaining to COVID-19 guidance, the Division wanted to ensure the revisions follow the more recent guidance.

The Standards Board still listened to numerous public comments which ranged from employer groups that requested a total revocation of the ETS to employee advocates who requested no change be made at all.

After lengthy public comment, the Standards Board decided to table the vote and scheduled a June 3rd emergency meeting to vote on a revised version of the ETS. The revised version must be posted by May 28, 2021.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA ETS or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

Santa Clara County wasted no time in altering its public health regulations in response to the county’s graduation to the ‘yellow tier’ of California’s Blueprint For a Safer Economy on May 18, 2021.  Within hours, the County announced a new Public Health Order that went into effect on May 19, 2021.

The Order retires several of the most burdensome requirements of the County’s October 5, 2020, Risk Reduction Order.  As a result, businesses are no longer required to (1) maximize the number of people who work remotely; (2) submit Social Distancing Protocols to the County Public Health Department; or (3) observe County-issued limitations on in-person capacity.

However, the Order imposes several new requirements on employers, including:

  1. Face Coverings: All businesses must require employees and customers to wear face coverings in accordance with the Mandatory Directive on Use of Face Coverings.
  2. Capacity limitations: Some businesses remain subject to State-issued COVID-19-related capacity limitations and must limit the number of people inside their facilities to a certain percentage of their usual maximum occupancy.
  3. Industry-Specific Requirements: Businesses must follow any industry-specific guidance from the State.
  4. Mandatory Reporting Regarding Personnel Contracting COVID-19: Businesses must require that all personnel immediately alert the business if they test positive for COVID-19 and were present in the workplace either:
    1. within the 48 hours before the onset of symptoms or within 10 days after onset of symptoms if they were symptomatic, or
    2. within 48 hours prior to the date on which they were tested or within 10 days after the date on which they were tested if they were asymptomatic.

If a business learns that any of its personnel have tested positive for COVID-19 and were at the workplace during the specified time frame, the business is required to report the positive case within 24 hours to the County Public Health Department at sccsafeworkplace.org.

Businesses must also comply with all case investigation and contact tracing measures directed by the County.

  1. Ascertainment of Vaccination Status: Businesses must ascertain the vaccination status of all personnel. Under the order, personnel includes employees, contractors, and volunteers. Until a person’s vaccination status is ascertained, they must be treated as not fully vaccinated.  Personnel who decline to provide vaccination status must also be treated as unvaccinated.

Businesses must complete their initial ascertainment of vaccination status for all personnel within 14 days of May 19, 2021, or no later than June 1, 2021.  Thereafter, businesses must obtain updated vaccination status for all personnel who were not fully vaccinated every 14 days (e.g., June 15, June 29, July 13, etc.).  Businesses must maintain appropriate records to demonstrate compliance with this provision.  The County has provided a template self-certification form for this purpose.

  1. Mandatory Rules for Personnel not Fully Vaccinated: Businesses must require all personnel who are not fully vaccinated to:
    1. comply with all applicable provisions of the Mandatory Directive on Use of Face Coverings, and
    2. comply with all applicable provisions of the Health Officer’s Mandatory Directive on Unvaccinated Personnel.

In announcing the new Order, the County’s Health Officer indicated additional changes will occur in conjunction with California’s “reopening” on June 15, 2021.  Dr. Cody predicted the future changes will even further differentiate between vaccinated and unvaccinated people.

Employers doing business in the County must act quickly to reconcile their new obligations under the Order with other California laws, chiefly the Fair Employment and Housing Act (“FEHA”), which is enforced by the state’s Department of Fair Employment and Housing (“DFEH”).  The DFEH previously issued guidance for employers that will assist in this endeavor.

Jackson Lewis continues to track COVID-19 compliance requirements for employers. If you have questions about the Santa Clara Order or related COVID-19 requirements contact a Jackson Lewis attorney to discuss.

As COVID-19-related litigation increases, courts are being called upon to interpret the scope of employers’ duties to protect their employees with relation to the virus.  Last week, a California federal judge dismissed a lawsuit brought by a spouse attempting to hold her husband’s employer liable for her COVID-19 infection.  The judge held that California’s worker’s compensation law barred the wife’s claim, noting that the employer’s duty to provide a safe work environment is limited to the employer’s employees.

In the matter of Corby and Robert Kuciemba vs. Victory Woodworks, Inc., Mr. and Mrs. Kuciemba both tested positive and were hospitalized with COVID-19. Though Mr. Kuciemba was no longer an employee of Victory Woodworks at the time he tested positive, he claimed that he contracted the virus from his former worksite and filed a claim for workers’ compensation. Mrs. Kuciemba also filed a lawsuit against Victory Woodworks on various negligence theories.

In February 2021, the California District Court granted Victory Woodworks’ motion to dismiss Mrs. Kuciemba’s case, citing that her claims were barred because worker’s compensation was the exclusive remedy for her claims.

Mrs. Kuciemba amended her Complaint, arguing that Victory Woodworks did not exercise ordinary care to prevent exposure to COVID-19, as a result of which, Mr. Kuciemba was exposed to the virus, and brought home the virus on his clothes and other personal items.  This legal concept of “take-home exposure” is common in asbestos litigation, and is founded on the idea that employers and premises owners have a duty to exercise ordinary care to prevent exposure to asbestos due to asbestos fibers being carried on workers’ clothing.

The District Court rejected Mrs. Kuciemba’s argument, finding that she failed to plead a plausible claim. Specifically, the Court found the employer’s duty was only to provide a safe workplace to its employees.  The Court found this duty did not extend to nonemployees who contract a viral infection away from the workplace.

While employers should continue to track and comply with federal, state, and local mandates, this ruling suggests that California employers do not need to implement special protections for, or otherwise owe duties to protect individuals who are not their employees from COVID-19.

Jackson Lewis continues to track COVID-19 related developments. If you have questions about COVID-19 workplace compliance contact a Jackson Lewis attorney to discuss.

In much-anticipated guidance, the Internal Revenue Service has offered its insight on the implementation of the COBRA temporary premium subsidy provisions of the American Rescue Plan Act of 2021 (ARPA) in Notice 2021-31.

Spanning more than 40 pages, the IRS-answered frequently asked questions (FAQs) finally resolve many issues relating to temporary premium assistance for COBRA continuation coverage left unanswered in the Department of Labor’s publication of model notices, election forms, and FAQs.

The practical implications of the guidance for employers are many. Significantly, employers must take action prior to May 31, 2021, to ensure compliance with some of the requirements under ARPA and related agency guidance.  More

The Centers for Disease Control and Prevention’s (CDC) latest guidance that fully vaccinated people no longer need to wear masks or social distance in many settings raises questions for businesses in retail, hospitality and other settings open to the public. Last week, we discussed considerations for businesses considering relaxing their mask and social distancing policies for employees. Business open to the public may have questions on how the CDC recommendations impact face covering policies they have established during the pandemic.

Businesses who are interested in relaxing mask requirements for customers should consider the following:

  1. Check if state/local emergency orders require customers to wear face coverings in the establishment. If so, then the order controls.
  2. If there are no such applicable requirements, the CDC’s recommendation does not prohibit a business from continuing a policy requiring customers to have face coverings in the establishment, subject to reasonable accommodation obligations and/or the obligation to modify a policy for disabled individuals.
  3. The business may contemplate modifying a policy requiring customers to wear face coverings to only require unvaccinated customers to wear face coverings. Putting aside the practical challenges of reliably identifying vaccination status under these circumstances, such a policy is consistent with the CDC recommendation that unvaccinated people should still wear face coverings.
  4. Where businesses establish such a policy as described above, they may ask a customer who is not wearing a face covering whether they have been vaccinated, so long as there are no state or local laws prohibiting businesses from inquiring about vaccination status or treating individuals differently based on vaccination status. While the Department of Justice (DOJ) has not provided guidance on whether this would be a medical inquiry under Title III of the ADA, the Equal Employment Opportunity Commission (EEOC) has issued guidance that such an inquiry is not prohibited under Title I of the ADA. However, requiring proof of vaccination is not recommended due to legal uncertainties on whether such documentation is permitted under Title III of the ADA.

If you have questions or need assistance, please reach out to the Jackson Lewis attorney with whom you regularly work, or any member of our COVID-19 team.

On May 13th, the Center for Disease Control (CDC) updated its guidance for fully vaccinated individuals.  The new guidance identified circumstances in which fully vaccinated individuals do not have to wear face coverings, including indoors. However, fully vaccinated individuals must still comply with federal, state, local, or workplace guidance for face coverings. Earlier in the month, the CDC also issued guidance easing outdoor mask requirements in non-crowded gatherings or when gathering with other vaccinated individuals.

In response to the most recent update to CDC guidance, Governor Newsom stated in a press briefing that subject to certain conditions being met, California expects to eliminate its outdoor mask mandates on June 15th.  The Governor also indicated there may be modification of indoor mask mandates at that time, but certain mask guidelines and mandates are expected to continue beyond June 15th for indoor activities.

At the time the CDC relaxed its outdoor mask requirements, the California Department of Public Health (CDPH) cautioned that employers must still comply with Cal OSHA COVID-19 Emergency Temporary Standards. Those standards include ensuring that workers are provided and properly wear face coverings. The guidance from the CDPH also specifies individuals who are working alone in a closed office or room do not have to wear a face covering. Workers who wear respiratory protection also are exempted from face-covering requirements.  Further, individuals with a medical condition who are employed in a job involving regular contact with others must wear a non-restrictive alternative, such as a face shield with a drape on the bottom, as long as their condition permits it.

In light of Governor Newsom’s comments, the CDPH’s guidance, and the Cal OSHA Emergency Temporary Standards, employers with employees in California must continue to follow all state and any applicable local mask mandates, until such time as those mandates are modified.

Jackson Lewis continues to track guidance and regulations pertaining to COVID-19 and the workplace. If you have questions about COVID-19 compliance in the workplace or related issues, contact a Jackson Lewis attorney to discuss.

As the COVID-19 vaccine has become readily available, and many employers contemplate employees returning to the office to work, both employers and employees have accelerated demands for new and permanent remote work location arrangements for a variety of jobs. Employers across the country are revisiting their business strategies, employment policies, and related legal and tax compliance measures with an eye toward improving their competitiveness for acquiring and retaining talent.  More

On May 20th, the Cal/OSHA Standards Board will consider changes to COVID-19 Emergency Temporary Standards (“ETS”).

The proposed changes would still require employers to have an established written COVID-19 Prevention Program (“CPP”) that covers everything from training and communication with employees to the investigation of COVID-19 cases in the workplace.

However, there are notable proposed changes in the requirements for the CPP, definitions, and COVID-19 case management procedures, which will have significant impacts on California employers.

Close Contact Instead of COVID-19 Exposure

This proposed change replaces the defined term “COVID-19 exposure” with the more commonly used term, “close contact.”  Although the definition remains the same (i.e., 6 feet, 15 minutes, 24 hour period), it now includes an exception for employees who wore a respirator under a Respiratory Protection Program, whenever they were within six feet of a COVID-19 case during the high-risk exposure period or period that someone could have been infectious.

Exposed Group Instead of Exposed Workplace

This proposed change eliminates some confusing defined terms like “exposed workplace” and adds a new term, “exposed group.” In shifting the language, the new definition would codify the guidance already contained in Cal/OSHA’s existing FAQs as to who and where would be included in or exempted from an “exposed group.” The exemptions include:

  • Areas in which a person momentarily passes through while everyone is wearing face coverings without congregating;
  • Distinct groups of employees, such as different work shifts that do not overlap; and,
  • If a COVID-19 positive person had visited a work location for less than 15 minutes and all persons wore face coverings, those individuals present would not be part of an exposed group.

In addition to aligning the definitions with Cal/OSHA’s guidance, the definitions also appear more consistent with current guidance from the Centers for Disease Control and Prevention (“CDC”) and the California Department of Public Health.

Notice Requirement

The proposed change still requires employers to notify employees of potential exposure or “close contact” within one business day. However, the notification obligation is now tied to when the employer knew or should have known of a COVID-19 case. The proposed changes to the notice requirement are significant in that the obligation can now be triggered if an employer should have known of a COVID-19 case, even if they actually did not. The proposed changes would also impose an obligation on employers to provide this notification in a written format. The written notice may be given by personal service, email, or text if it can reasonably be anticipated to be received by the employee within one business day and include information required by Labor Code section 6409.6. Cal/OSHA’s proposed changes are, as a result, shoring up the notice requirement to align with the written notification required by Assembly Bill 685.

Physical Distancing

If adopted, the revision states the physical distancing subsection would only apply before July 31, 2021. Moreover, the revision states the following employees would be exempt from the physical distancing requirements:

  • Employees wearing respirators under a Respiratory Protection Program
  • Subject to certain requirements, locations at which all employees are fully vaccinated, except for employees who require a reasonable accommodation or exception to vaccination

The proposed revisions also reduce the burden on employers with respect to 6 feet separation of employees by modifying the burden for employers to show that physical distancing cannot be achieved or sustained. Through the proposed changes employers would no longer have to demonstrate that six feet separation “is not possible” and have the less stringent requirement of showing that “six feet separation is not feasible.”

Face Coverings

To reflect recent changes from the California Department of Public Health guidance, the proposed changes add the following new exceptions to the face-covering requirement:

  • When all persons in a room are fully vaccinated and do not have COVID-19 symptoms;
  • Employees wearing respirators under a Respiratory Protection Program;
  • Employees who are fully vaccinated when they are outdoors so long as they are free of COVID-19 symptoms.

Exclusion from Worksite

The proposed revisions now match the recent update to the ETS FAQ, indicating that fully vaccinated employees that do not have COVID-19 symptoms do not have to be excluded from the workplace. Individuals who have been positive for COVID-19 and have recovered and return to work, also do not have to be excluded for 90 days after the initial onset of COVID-19 symptoms or for individuals who never developed symptoms, 90 days from the first positive test.

The proposed revisions further clarify that exclusion pay is not required where the employee received disability payments or was covered by workers’ compensation and received temporary disability. This change would also align the standard with Cal/OSHA’s current guidance.

If the revisions to the ETS are approved, it will ease employers’ burden as they reopen in some respects, but even if passed as revised, employers will need to continue to follow other state and local guidance regarding COVID-19 safety in the coming months. Employers should further be aware of the possibility of there being inconsistencies in Cal/OSHA’s ETS and guidance from the state and local health department, which could result in worker confusion or challenging workplace dynamics.

Jackson Lewis will continue to monitor changes in COVID-19 guidance and regulations in the workplace. If you have questions about the Cal/OSHA ETS or related workplace safety issues, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.