Category Archives: Uncategorized

The Baseball Lockout is Over

My enthusiasm for all things, including laws related to COVID and wage and hour, is a little higher now. A little!

COVID Paid Sick Leave in California for 2022

A belated post about a new law signed February 9, 2022 by Gov. Newsom. I admit to my own COVID/World Events-based fatigue! (Oh, you don’t have any?!?!? Gee, I’m real happy for you! Ha ha.

Confusing date part: The law is set forth in new Labor Code Section 248.6 (“2022 CPSL”). It is retroactive to January 1, 2022. But, an employer’s obligation to provide 2022 COVID-19 supplemental California paid sick leave (CPSL) did not begin until February 19. 

And . . . Covered Employers (see below) are to provide 2022 CPSL through September 30, 2022.  If an employee is using 2022 CPSL on September 30, however, and the absence would continue without interruption past that date, the employee gets to continue using available CPSL for that absence. Got it? 

This law is kind of similar, and mostly not, to the prior CPSL that you navigated last year.  

Covered Employers, Employees and Family Members.  2022 CPSL applies to employers with 26 or more employees (and some public entities). It does not apply to employers with 25 or fewer employees.

The law covers all employees. Additionally, it allows employees to use leave to care for family members. Family member is defined to include a child, grandchild, grandparent, parent, sibling, or spouse.

Reasons Employees Can Use Leave. Employees who are unable to work or telework can use 2022 CPSL L for the following reasons – a list you’ll see is expanded from the 2021 reasons: 

  • Employee is subject to a quarantine or isolation period related to COVID-19 as defined by federal, state or local orders or guidance.
  • Employee is advised by a health care provider to self-quarantine or isolate due to concerns related to COVID-19.
  • Employee or family member is attending an appointment to receive a COVID-19 vaccine or booster.
  • Employee or family member is experiencing symptoms related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework.
  • Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
  • Employee is caring for a family member who is subject to a quarantine or isolation order or guidance or who has been advised to self-quarantine or isolate by a health care provider due to concerns related to COVID-19.
  • Employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
  • Employee tests positive or is caring for a family member who tests positive for COVID-19.

Interaction with CalOSHA’s ETS and “Exclusion Pay.”  If CalOSHA’s COVID-19 requires an employer to maintain an employee’s earnings when an employee is excluded from the workplace due to COVID-19 exposure, employers cannot require an employee to first exhaust CPSL.

Amount of Paid Time Off for Employee. The maximum potential amount of CPSL an employee can receive is 80 hours for full-time employees. But this is really two separate 40-hour rules.

First “Bank of 40-Hours”.  If the employee tests positive for or is caring for a family member who tests positive for COVID-19, they draw from one “up to 40-hour” bank of paid time off.

Second “Bank of 40-Hours.”  This paid time off is available only for other covered reasons (quarantine or isolation, vaccine appointments or recovery, experiencing COVID symptoms and seeking medical diagnosis, closure of school or place of care for reasons related to COVID-19 on the premises).

For time off under the Second Bank, the time off for a COVID-19 vaccine or booster shot can be limited by the employer to three days or 24 hours. This time includes time spent attending an appointment and/or for COVID-19 vaccine or booster shot-related symptoms (for each vaccine/booster).  If a health care provider verifies the individual continues to experience symptoms related to the vaccine/booster, more than three days or 24 hours of time off may be available.

Employee Obligations.  The employee (only!) determines how many 2022 CPSL hours they need to use. Employees get to choose whether they will use 2022 CPSL or some other paid or unpaid leave benefit their employer provides, or the law requires, to cover an absence.

Employees can use 2022 CPSL immediately on or after Feb. 19 if they make an verbal or written request to use leave.

Also, please note: when an employee or family member tests positive for COVID-19, employers can require employees to take another diagnostic test on or after the fifth day after the first test and provide documentation of the results. This test must be at no cost to the employee.

Amount of the Benefit. The 2022 CPSL pay rate calculations kind of mirror those required under the “regular” California Paid Sick Leave rules.  Generally, employers include total wages, excluding overtime premium pay – as they would under the “regular rule” – but for 2022 CPSL they divide by total non-overtime hours worked in the full pay periods occurring within the prior 90 days of employment. Under 2022 CPSL, the only reason employers would divide by all hours worked is when the employer pays the employee “by piece rate, commission or other method that uses all hours to determine the regular rate of pay.”

Employers need not pay more than $511 for each day an employee uses CPSL, or more than $5,110 overall. Employees who max out because of the pay caps can use other available paid leave they have so they are fully compensated during the absence.

Notice, Posting and Paystub Requirements.  You should post this notice that the Labor Commissioner published.

If you don’t have a “workplace,” you can send this out via email.

Employers must include information concerning 2022 CPSL on paystubs or other written notices employees receive on payday.  

However, unlike the 2021 law where employers only had to display CPSL “available,” employers only must report 2022 CPSL hours an employee “used” (reporting “zero hours” until an employee uses CPSL). The law does not clarify if employers must break this information out (for the two banks of available time off) . . . so I suggest you do so!

Offset.  The amount of paid leave employees already received in 2022 before the law takes effect might qualify as an offset that satisfies an employer’s 2022 CPSL obligations all or in part. If an employer pays an employee another benefit for time off taken after January 1, 2022 that is for a reason covered by 2022 CPSL, an employer may be able to count those hours toward the amount required by 2022 CPSL.

That is actually a pretty confusing exception/offset because to offset amounts owed under the 2022 CPSL, these amounts be a supplemental benefit. This means employers cannot count paid sick leave employees have used under California’s Healthy Workplaces, Healthy Families Act (HWHFA), the pre-COVID-19 paid-sick-and-safe-time law, or 2021 CPSL toward their 2022 CPSL obligation.

*If you paid any benefits related to COVID after January 1, 2022, there are several complicated provisions of the law, so you should review the actual code section and, if you wish, consult with counsel!

CalOSHA: NO masks required indoors, even for unvaccinated

CalOSHA updated its Emergency Temporary Standards and the associated FAQs earlier this week:

Q.4: How does CDPH’s February 28, 2022 Guidance for the Use of Face Masks impact the ETS requirements?

A: Executive Order N-5-22 suspends section 3205(c)(6)(A) of the ETS, which required that unvaccinated workers wear face coverings in all indoor workplaces and all vehicles. This requirement will no longer be enforced. However, other face covering requirements within the ETS remain in place, including provisions requiring face coverings in outbreaks and in employer-provided transportation. Also still in place is section 3205(c)(6)(B), which requires that employers provide face coverings and ensure they are worn when required by orders from the CDPH. In addition, employees can request face coverings from the employer at no cost to the employee and can wear them at work, regardless of vaccination status, without fear of retaliation, as specified in section 3205(c)(5)(J).

In addition, the February 28, 2022 masking order from the CDPH requires that all workers in the following sectors wear face coverings indoors:

  • Indoors in K-12 schools, childcare (through March 11, 2022)
  • On public transit (examples: airplanes, ships, ferries, trains, subways, buses, taxis, and ride-shares) and in transportation hubs (examples: airport, bus terminal, marina, train station, seaport or other port, subway station, or any other area that provides transportation)
  • Emergency shelters and cooling and heating centers
  • Healthcare settings (applies to all healthcare settings, including those that are not covered by the State Health Officer Order issued on July 26, 2021)
  • State and local correctional facilities and detention centers
  • Homeless shelters
  • Long Term Care Settings & Adult and Senior Care Facilities

Gee, thanks CalOSHA! So . . . if an employer requires masks inside for the unvaccinated, there will be push-back. And if an individual contracts COVID . . . welp, the employer can pay the California Paid Sick Leave! Rassafrassa.

(Employers can still choose to require masks for unvaccinated, or all . . . FYI).

The future? Santa Clara requires employers to obtain vaccination status, and other new rules . .

Santa Clara County has led the way (I think) when it comes to trying to minimize the effects of COVID-19 on its residents’ health. Earlier this week, the County’s Public Health Officer issued a new order and a ton of explanatory documents to guide employers (and residents) as the State and County and Country begin to “open up.”

There is a ton of information at the County Public Health site – https://covid19.sccgov.org/public-health-order-faq – with lots of links. Pretend you are linking through theories about Mare of Easttown . . . since it will take about that long to go through it all.

Here are some highlights:

  • At the County level there are not longer requirements for capacity restrictions and to maximize telework.
  • Employers (you!) must get the vaccination status of all employees who work in the County (and are encouraged to collect it for workers in other counties). Employers must have this information by June 1, 2021. Employers can ask fro proof of vaccination (the card) or ask employees to complete the Self-Certification form.
  • All unvaccinated employees (or those that “decline to state” and are presumed to be unvaccinated) must update their status every two weeks.
  • Indoor mask requirements remain in effect.
  • It is likely best to keep the break rooms closed (or at least keep the tables and chairs out) – employees are still discouraged from eating indoors together.

It is not clear if other local or state governments will follow Santa Clara’s lead.

Keep in mind -all the Cal-OSHA requirements for a safe work environment and the California Paid Sick Leave for COVID and the voluntary FFCRA provisions, etc. that I have either written about or linked to other lawyers’ writings are still in effect.

Good luck! Stay safe!

The Interaction of the Revived FFCRA and California COVID Paid Sick Leave

As an update to my article, below, about the new California COVID Paid Sick Leave. . . here is some more information about how it interacts with the “revived” FFCRA.  As you may recall, the FFCRA expired at the end of 2020. Then, Employers could offer it through March 31, 2021 and still get the payroll tax credit. Now the FFCRA has been modified and extended to September 30, 2021.

Right off the bat, you should note that the payroll tax credits continue. This is important considering California’s new Paid Sick Leave requirement that I discuss in my prior post.  I suggest you take advantage of this opportunity! California’s COVID Paid Sick Leave is a directive from California to employers to provide paid sick leave. The employer must fund this benefit without assistance from the state. The text of the new California law does not prohibit an employer from using the FFCRA to help offset these costs. If the reason for the sick leave qualified under the definitions in the FFCRA and the new California COVID Paid Sick Leave, the employer may designate it as both and take the tax credit.   

In addition to this welcome assistance, the revived FFCRA has expanded the reasons employees can take FFCRA leave (effective April 1, 2021): 

1.  The employee is receiving a COVID-19 vaccine.

2.  The employee is recovering from any injury, disability, illness, or condition related to the COVID-19 vaccine.

3.  The employee is seeking or awaiting the results of a COVID-19 test when the employee has been exposed to COVID-19 or the employer has requested the test.

In fact, these new reasons apply to the paid sick leave component of the FFCRA and the FFCRA’s EFMLA benefit.

Of note, if an employee took FFCRA paid sick leave already, their bank of time is renewed as of April 1, 2021.  That means, the employee has a new bank of 80 hours of qualifying paid sick leave (and paid sick leave for which the employer can get the payroll tax credit). 

There was no renewal of the EFMLA time – if exhausted, the employee is not entitled to more. 

On a related note, California’s Labor Commissioner is a total go-getter and already published the model notice for the California rule. You can access it here.

(You are all spared the original version of this post, that compared the FFCRA to The Vision and California’s legislature to Wanda Maximoff and the Labor Commissioner to Agent Woo.  I could not get Monica Rambeau and Dr. Lewis in it, so I bailed.  BUT if you want to talk about WandaVision, I am THERE. . . )

Now! New! California’s NEW COVID-19 Paid Sick Leave

California employers with more than 25 employees have a new paid sick leave requirement. The new law goes into effect March 29, 2021 but will apply retroactively back to January 1, 2021

SB 95 creates new Labor Code sections 248.2 and 248.3. Under the new laws, “covered employees” are entitled to up to 80 new hours of COVID-19 supplemental paid sick leave.  While this was originally seen as a continuation of the SPSL that was a tag-along to the FFCRA and expired December 31, 2020 (Nice acronyms!), it is a completely different, expanded paid sick leave program. 

All “covered employers” must provide the new California COVID-19 supplemental paid sick leave (SPSL). Although the 2020 version of the SPSL applied only to employers with 500 or more employees. This new law (I will call it 2021 SPSL) defines “covered employer” as any business “with more than 25 employees.”

All “covered employees” are entitled to take 2021 SPSL. A “covered employee” is any employee “who [is] unable to work or telework” for a covered employer for one of the reasons listed in the new law.

The law also adds new benefits for “providers” who provide in-home supportive services as defined under the California Welfare and Institutions Code and who provide “authorized in-home supportive services … to an eligible recipient.”

Covered employees may take the new 2021 SPSL if they are unable to work or telework, and providers may take 2021 SPSL if they are unable to work due to any of the following reasons.

  1. The covered employee or provider is subject to a quarantine or isolation period related to COVID-19.
  2. A health care provider has advised the covered employee or provider to self-quarantine because of COVID-19–related concerns.
  3. The covered employee or provider is attending an appointment to receive a COVID-19 vaccine.
  4. The covered employee or provider is experiencing symptoms related to a COVID-19 vaccine that prevents the employee from being able to work or telework.
  5. The covered employee or provider is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
  6. The covered employee is caring for a family member who is subject to a quarantine or isolation order or who a health care provider has advised to self-quarantine. Under the 2021 SPSL, family members include the employee’s spouse, registered domestic partner, parent (including parents-in-law), child (regardless of age or dependency), grandparent, grandchild, and sibling.
  7. The covered employee or provider is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.

Generally, full time employees are entitled to 80 hours of 2021 SPSL, while part-time employees are entitled to a pro rata amount based on the hours worked over a two-week period. The amount of sick leave under this program is capped at $511 per day and $5,110 total for each employee.

An employee is “full time” if the employer considers the worker to be full time or the employee is scheduled to work, or worked, an average of 40 hours per week in the two weeks before the employee takes the time off. 

The 80 2021 SPSL hours are in addition to the paid sick leave that an employer must provide and to which the covered employee or provider already is entitled under the California Paid Sick Leave rules.

The 2021 SPSL is law is retroactive to January 1, 2021. This means that an employee can use COVID-19 SPSL for any absence since January 1, 2021, that falls within a covered reason. The employer must provide this retroactive payment once the employee makes a verbal or written request.  The payment is to be by the next full pay period. And the wage statement must show a line item for the payment of the 2021 SPSL (separate from any other PTO or PSL). 

An employer may not force an employee to use any other form of paid or unpaid leave or time off, including company-provided sick leave, vacation, or paid time off (PTO), before using 2021 SPSL. The employee gets to choose the amount of 2021 SPSL employees to choose the number of COVID-19 SPSL hours to use, and when, up to the number of COVID-19 SPSL hours for which the employees are eligible.  However, if 2021 SPSL is available, the Cal/OSHA exclusion pay would not be triggered.

The employer must post a notice of this new benefit.  The Labor Commissioner is supposed to make a model notice you can use – and if I catch it, I will post it on the blog! And the Labor Commissioner will enforce this new 2021 SPSL program. 

The law will expire September 30, 2021.

A Gift for the New Year (?)

Happy 2021! I am posting an updated chart of California Leaves of Absences. As you’ll note on the final page, this does not incorporate COVID-19 related time off and wage replacement laws under FFCRA, Cal/OSHA, or California sick leave programs. I hope to post a separate document with those updated particulars soon-ish.

(Of course, if you see a “need for further revision” AKA a mistake, feel free to let me know! Follows my theme of “we’re all in this together!”)

Wow! What a way to start the New Year!!!!!

PFL Expansion for Military Exigency

This didn’t make it into my Employment Law Update (due to operator error), but please note that beginning January 1, 2021, California’s Paid Family Leave program will expand by adding “Military Assist.” PFL Military Assist benefits will be available to eligible Californians who need time off work to participate in a qualifying event because of the military deployment of their spouse, registered domestic partner, parent, or child to a foreign country.

For more information, here is the EDD’s PFL website that is focused on applications made after January 1.

2021 California Law Update

A new year means. . . . new employment compliance issues. Read on! And of course, do not hesitate to contact us with questions or for assistance. The best way to reach me is here: jdebacker@mstpartners.com

COVID-19

The laws, rules, regulations and standards about COVID-19 are a moving target. Here is what we know as of today.

The FFCRA, which included federal Paid Sick Leave and paid “E-FMLA”, expires December 31, 2020, as does the California version that required paid sick leave for larger employers. The new (December 21, 2020 December 27, 2020) stimulus package addresses FFCRA leave, but seems to say that as of January 1, employers are no longer required to provide FFCRA leave; if they do, they can continue to get a federal tax credit for leave through March 31, 2021. We’ll look to update this when we know more.

Cal/OSHA Emergency Standards

Cal/OSHA issued new Emergency Standards on November 30, 2020 that cover every employee in California, except those already covered by the Aerosol Transmissible Diseases standard, employees working from home, and single-employee employers who do not have contact with anyone.

The Emergency Standards require the following:

  • If an employee must be excluded from the worksite for a COVID-19 related reason (having or having been exposed to COVID-19 at work), but is otherwise able and available to work, the employer must continue the employee’s earnings and benefits.
  • If there has been a COVID-19 case at a workplace, the employer must offer COVID-19 testing at no cost to employees during their work hours to all employees who had potential exposure in the workplace.
  • Notification to employees (and employers of subcontracted employees) of potential exposure. A new law that takes effect January 1 requires this notice to be in writing.
  • Tracking of COVID-19 cases.
  • Provide face coverings to all employees.
  • Creating a written COVID-19 Prevention Program. A fill-in-the-blank template is available from the Department of Industrial Relations.
  • Reporting of outbreaks to the local Public Health authority. The definition of “outbreak” varies across several laws. If an employer has more than two positive employees, the employer should see if the notification rule is triggered.
  • For employers who provide housing and transportation to employees, there are special requirements to ensure appropriate social distancing.

Cal/OSHA Reporting Requirements and Enforcement

In addition to the Emergency Standards, a new law requires employers to notify in writing specified employees of their potential exposure to COVID-19 within one business day from the employer’s notice that an employee tested positive or was diagnosed with COVID-19, became subject to a COVID-19 isolation order or died due to COVID-19.  This notification must be provided to employees who were working at the same work site as the employee with COVID-19 during the infectious period. The notice must include information regarding workers’ compensation insurance, COVID-19-related paid time off, and state-mandated leave time. All employees and employees of subcontractors must be notified of the disinfection and safety plan. Employers must not identify the employee with COVID-19 by name. Employers must also notify the local public health agency within 48 hours if there is an outbreak. And, Cal/OSHA now has the authority to issue emergency shut down orders for an entire worksite if it deems that necessary.

Workers’ Compensation Insurance and COVID-19

In May 2020, Governor Newsom issued an Executive Order which created a rebuttable presumption that employees’ illnesses relating to COVID-19 were occupational injuries eligible for workers’ compensation insurance benefits if certain criteria were met. Now that Order is a law. To rebut the presumption that the employee’s COVID-19 illness is work-related, employers may present evidence demonstrating that the illness was not contracted at work as well as safety measures they have taken. Also, employees are required to exhaust their paid sick leave prior to being eligible for workers’ compensation temporary disability benefits. This law went into effect September 17, 2020.

Compensation

Wage orders

Every employer must post the most current Wage Order in the workplace, so please download the wage order for your business today and post it where employees can find it. The Wage Orders were revised for 2021! You can find the latest Wage Order for your business at www.dir.ca.gov

Minimum Wage

Effective January 1, 2021, California employers with at least 26 employees must pay minimum wage at the rate of $14.00 per hour. For employers with 25 or fewer employees, minimum wage will increase to $13.00 per hour.

Employers are generally subject to federal, state and local minimum wage laws and must follow the stricter standard; that is, the one that is the most beneficial to the employee.

Exempt employees

The minimum salary that must be paid to exempt employees in California corresponds to the state minimum wage. Exempt employees must earn at least twice the state’s minimum wage for full-time employment — $58,240 annually for employers with 26+ employees. For employers with 25 or fewer employees, the amount is $54,080. This minimum salary increases as minimum wage increases. As always, the “duties” tests must be satisfied for any employee classified as exempt. 

Overtime for the Computer Software Professional Exemption  

As of January 1, 2021, employers must pay their California computer professional employees a salary of at least $98,907.70 annually ($8,242.32 monthly) or an hourly wage of $47.48 every hour worked in order to remain exempt from paying such employees overtime compensation. The applicability of this exemption requires careful analysis to see if the worker is performing the necessary duties. This exemption is only from overtime; these employees must still be afforded the opportunity to take meal and rest breaks. 

Independent Contractors

Until about March 2020, all the talk was about AB 5, Dynamex and the ABC Test. While that talk has died down a bit, please note that if you have anyone performing services for you that isn’t paid as a W2 employee, you must carefully review that relationship.

Two laws modified AB 5 this year. The first came from the Legislature and seemed to be very dependent upon who had effective lobbyists in Sacramento. AB 2557 amended the law to revise and add exceptions to the “ABC Test” used to determine whether a worker is properly classified as an employee or independent contractor.

The new law removed the annual 35-submission limit for freelancer writers, editors, newspaper cartoonists, still photographers, and photojournalists, though a variety of other requirements still must be met. New exceptions have been added for workers who create, market, promote, or distribute sound recordings or musical compositions, and for certain single-engagement live musical performances. Other additions include workers who provide underwriting inspections and other services for the insurance industry, a manufactured housing salesperson, people engaged by an international exchange visitor program, consulting services, animal services, and competition judges with specialized skills. The bill also creates exceptions for licensed landscape architects, some youth coaches, specialized performers teaching master classes, registered professional foresters, real estate appraisers and home inspectors, and feedback aggregators. The new law also changes the conditions under which business service providers providing services to another business are exempt, and the criteria for the referral agency exemption. An exemption for business-to-business relationships between two or more sole proprietors has also been created.

All of these exemptions and revisions are subject to specific requirements. And, as before, if an exemption applies, the worker must still satisfy the multi-factor Borello test in order to be properly classified as an independent contractor.

The second change came through the voting process.  Proposition 22 is a very limited exception to AB 5. The new law classifies drivers for app-based transportation and delivery companies as independent contractors, not employees, unless the company sets the workers’ hours, requires acceptance of specific ride and delivery requests, or restricts working for other companies.

Wage Claim Arbitration

If an employer asks a court to require arbitration of a wage claim, the Labor Commissioner may now provide legal representation to the claimant when asked and if the claimant is financially unable to afford representation. The Labor Commissioner must determine the claim has merit. The Labor Commissioner may oppose the petition to arbitrate and represent the claimant in the arbitration.

Extension of time to file a retaliation claim with the Labor Commissioner

A new law enlarges the time for employees to file complaints with the Labor Commissioner for claims that they were discriminated against or discharged in violation of Labor Code provisions enforced by the Labor Commissioner. The employee now has one year, instead of six months, to file a claim. This bill also amends Labor Code section 1102.5 to allow employees who prevail on a claim for certain types of retaliation to recover their attorneys’ fees.

Time Off / Leaves of Absence

California Family Rights Act (CFRA) covers employers of 5 or more employees

The CFRA and the federal FMLA have historically been viewed as “practically the same.” Then, in 2018, the CFRA was changed to require employers to provide new child bonding time to employees working for employers with 20 or more employees.

Starting January 1, 2021, the CFRA will cover employers with 5 or more employees. An eligible employee must be employed for 12 months and work 1,250 hours. There is no geographic limit, though, when counting the number of employees. The employees could be spread across the state and if they add up to 5, the law covers the employees.

The 12 weeks of unpaid time off can be taken to care for a family member with a serious health condition. The definition of family member is expanded to include grandparents, grandchildren, and siblings. The new law also provides up to 12 weeks of time off due to a military-related “qualifying exigency,” which has been covered by the FMLA for years. Employers can no longer limit leave to 12 weeks of combined baby-bonding leave when both parents are employees. And the ability to limit reinstatement for certain key employees has been eliminated. 

Kin Care

Under Labor Code 233, employees must be permitted to use at least half of their annual accrual of employer-provided sick leave for “kin care” (family) reasons. This bill amends the law to provide that it is up to the employee’s “sole discretion” to designate leave to use for this purpose. The new law does not require employers to provide any additional paid time off—it simply clarifies who designates which type of sick leave is used when an employee uses a sick day.

Protected Time Off for Domestic Violence, Sexual Assault, or Stalking Victims

Existing law protects some employees who are the victims of victims of domestic violence, sexual assault, or stalking, and the protections are expanded this year. Labor Code sections 230 and 230.1 are amended to provide the victims of violent crimes and families of homicide victims (1) time to recover without fear of job loss and (2) expanded unpaid leave. The new law expands the coverage to include victims of “or other crime or abuse” “that caused physical injury or that caused mental injury and a threat of physical injury” and “a person whose immediate family member is deceased as the direct result of the crime.”

Fair Employment

Pay Data Reporting Requirements 

Employers with 100 or more employees that are required to file the federal EEO-1 report must also submit a pay data report to the California Department of Fair Employment and Housing (DFEH) starting March 31, 2021. The report must include the race, ethnicity and gender of employees by job category within pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey. The data will be provided according to a single pay period of the employer’s choice between October 1 and December 31 of the reporting year.

The DFEH will make these reports available to the Labor Commissioner upon request, although both agencies are required to keep the data confidential, except to carry out administrative enforcement or to respond to discovery in litigation. The reports will not be subject to the California Public Records Act.

Harassment Prevention Training

By January 1, 2021 employers with five or more employees are to provide two hours of harassment prevention training to supervisors and one hour of training for all nonsupervisory employees in California. Thereafter, this training must be provided every two years. New hires must receive this training within six months of hire or promotion to a supervisory position. A new rule from the Fair Employment and Housing Commission has clarified that the training can occur in increments – meaning a manager could do one hour each year, for example, so long as all the content is conveyed.

More about the new (and effective immediately) Cal/OSHA Emergency Regulations re COVID-19

Cal/OSHA’s emergency regulations, which I wrote about yesterday, are now in effect.

Cal/OSHA has posted some FAQs that can answer a lot of your questions. If you scroll down in the FAQs, there is a link to a model COVID-19 prevention program – it downloads into a word document and you can do a lot of “fill in the blanks” to comply.

Don’t forget that your local/County Public Health department is also an important source of information and handy documents. For example, I was asked what an employer can do if they cannot require a negative COVID test for return to work. Well, you want the employee to certify that they have reached a stage of recovery or did not exhibit symptoms for a certain period of time. The County of Monterey has a nice template to use that requires the employee to certify their status. It is here.