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Cal/OSHA Emergency Standard related to COVID 19 – a short-ish discussion

On November 20, 2020, the Cal/OSHA Standards Board adopted Emergency Standards related to COVID-19 prevention in the workplace. The Standards were sent to another part of the state government – the Office of Administrative Law (OAL) on Friday, November 20, where the OAL will review it until at least November 30. The draft Standards will remain open for five days after that during which stakeholders may submit comments to the OAL. Once the OAL adopts a final regulation, it will be codified and enforceable by Cal/OSHA (so, December 5?).

**The OAL now lists this as APPROVED. **

Honestly, while some parts of this rule are new – the paid time off requirement and the testing in response to positive cases, for example – I anticipate that you already had something similar to what Cal/OSHA wants in place already for the protocols, especially if you operate in a Bay Area county. So, pat yourself on the back, exalt in your glory, get a big cup of coffee and take a close look at your written plan and the protocols to ensure you are in compliance with these rules. And we should know in a few days if these become Standards enforceable by Cal/OSHA.

All employees and places of employment are covered by this emergency standard, except:

  • A worksite with one employee who does not have contact with any other persons.
  • Employees working from home.
  • Employees already covered by Cal/OSHA’s aerosol transmission standard.

PAID TIME OFF. If an employee must be off work for having or being exposed to COVID-19 and has no paid time off available, the employer must continue to pay them.  The employer can require use of paid sick leave, PTO, FFCRA, or other sources, but if they have exhausted those benefits, the employer must keep paying them and to provide them information about benefit entitlements. 

The regulation provides that employers shall “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status.” Of note, this requirement does not appear to contain a maximum number of hours per year, meaning an employee could potentially be excluded from the worksite multiple times. The employer is required to maintain earnings and benefits during each period.

There are two potential exemptions to this “maintained earnings” requirement:

  • The requirement does not apply to any period during which the employee is unable to work for reasons other than protecting persons at the workplace from COVID-19 transmission.
  • The requirement does not apply where the employer “demonstrates” that the COVID-19 exposure is not work-related. While it may seem like you would be able to do this easily, can you? Keep in mind the Cal/OSHA’s position that once a non-work-related COVID-19 case enters the worksite, it is deemed to be a worksite hazard.

EXCLUDED FROM WORKSITE. COVID-19 Cases must be excluded from the worksite until they have satisfied return to work criteria.  The new standard requires employers to ensure that “COVID-19 cases” (those who have tested positive or have an order to isolate from public health authorities) are excluded from the worksite until they have satisfied the return to work criteria.

If an employee is exposed, they are to be excluded from the workplace for 14 days after the last known exposure.  However, if the employee does not contract COVID-19, the employee does not need to be excluded if the public health department does not require isolation, if the employee is temporarily reassigned to work where they do not have contact with other persons.

RETURN-TO-WORK CRITERIA. Before a worker who tested positive or was ordered to isolate can return to work, the workers must satisfy certain criteria. 

COVID-19 Cases with Symptoms. Employees who are COVID-19 cases with symptoms shall not return to work until:

  • At least 24 hours have passed since a fever of 100.4+ has resolved without the use of fever-reducing medications.
  • COVID-19 symptoms have improved; and
  • At least 10 days have passed since symptoms first appeared.

COVID-19 Cases Without Symptoms.  COVID-19 cases who tested positive but never developed symptoms shall not return to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.

Orders to Isolate or Quarantine. If a public health authority issues the order to isolate or quarantine, the employee shall not return to work until either period of isolation or quarantine is lifted. If no period is specified, then the period shall be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.

Of note (!) the new emergency standard states that negative COVID-19 test shall not be required for an employee to return to work. Therefore, California employers will not be permitted to insist that COVID-19 cases take a test before returning to the job.

WRITTEN COVID-19 PREVENTION PROGRAM. California employers must prepare, implement, and maintain a Written COVID-19 Prevention Program (WCPP) like an IIPP. You can either have a standalone WCPP or integrate it into your existing IIPP. If you have had employees at a worksite, you likely already have a written COVID-19 Plan, likely in compliance with your County’s Public Health guidance and that of the state. You will need to take a close look at what Cal/OSHA requires for this plan it to make sure your plan contains all the information now required.

The required elements as outlined by Emergency Standard for WPPs include the following:

  1. System for communicating information about your policies and procedures.
  2. Identification and evaluation of COVID-19 hazards.
  3. Investigating and responding to COVID-19 cases in the workplace.
  4. Correction of COVID-19 hazards.
  5. Training and instruction.
  6. Physical Distancing.
  7. Face coverings.
  8. Other engineering controls, administrative controls, and personal protective equipment.
  9. Reporting, recordkeeping, and access.
  10. Exclusion of COVID-19 cases.
  11. Return to work criteria.

NOTICE OF POTENTIAL COVID-19 EXPOSURE AND CASES. If you have had employees at the worksite over the past 8 months, you have likely faced the need to tell other employees about exposure and cases. The Emergency Standards repeat some of what you have already been doing, but it is important to review your process.  The new standard requires employers give notice of the potential COVID-19 exposure within one business day to all employees who may have been exposed, their authorized representatives, and independent contractors and other employers who were present during the high risk exposure period. The high-risk exposure period generally begins 48 hours before onset of symptoms or specimen for the positive test.  

The Emergency Standard does not require that the notice be in writing, but you should do it that way.  AB 685 (the Cal/OSHA law taking effect January 1) will required it.  And the best way to show you complied with the rules is to have the announcement in writing and not rely on a script or someone’s recollection. Also, AB 685 identifies a slightly different group who must receive this notice, as it specifies all employees (as well as their exclusive representatives) and employers of subcontracted employees who were on premises at the same worksite, not independent contractors or just those employees who may have been exposed.

The Standard confirms that the notice must be given without revealing any personal identifying information of the COVID-19 case. We already knew this was the expectation given the DFEH’s announcement on the issue. So, identifying information must be kept confidential – even if it seems “everybody knows!”  The identity of the individuals and their medical records related to COVID-19 may be required to be provided to the local health department, CDPH, the Division, the NIOSH, or as otherwise required by law.

If there is an outbreak at a worksite (see below, but if you have three cases, the term “outbreak” may apply!), both AB 685 and the new Standard require the reporting of such confidential information to the local public health department within 48 hours of the outbreak.  The Standard also requires employers to report to the Division of Industrial Relations any COVID-19 related serious illnesses or deaths that occur in the workplace or in connection with employment. Employers must also ensure they are recording and tracking the appropriate information for all COVID-19 cases in accordance with this new standard.

And the notice must also include information about the employer’s cleaning and disinfection protocols.

PHYSICAL DISTANCING. This should not be new anyone reading this, but just in case. The Emergency Standard provides that all employees shall be separated from each other by at least six feet. There are two exceptions to this requirement: (1) where the employer can demonstrate that six feet of separation is not possible, and (2) momentary exposures while employees are in movement.

If the employer demonstrates that it is not possible to maintain a distance of at least six feet, individuals shall be as far apart as possible. But you will have to show why.  And at fixed work locations where it is not possible to maintain physical distancing, the employer shall install “cleanable solid partitions” that reduce transmissions between employees.

The Standard confirms that the keeping the number of people low is ideal.  Other methods of physical distancing include telework or other remote work arrangements, reducing the number of persons in an area at one time, staggered arrival and departure, and adjusted work processes. And, again, if you have people in a workplace, you will need to have cleaning and disinfecting procedures.

FACE COVERINGS AND PERSONAL PROTECTIVE EQUIPMENT (PPE).  Under the Standard, employers must provide face coverings and ensure that they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person, or when required by public health authorities. The Standard clarifies that face shields are not a replacement for face coverings, although they may be worn together for additional protection.

An employer cannot prevent an employee from wearing a face covering when not required unless it would create a safety hazard.

And an employee does not need to be required to wear a face covering:

  • when an employee is alone in a room,
  • while eating and drinking, provided employees are at least six feet apart
  • when the employee is wearing respiratory protection
  • if the employee who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing impaired person (but they must wear an effective alternative, such as a face shield with a drape on the bottom
  • Specific tasks that cannot feasibly be performed with a face covering.

However, even if a person fits under one of the exceptions and cannot wear a fact covering, they must be at least six feet apart from others unless the unmasked employee is tested at least twice weekly for COVID-19.

The Standard says that the employer must provide the face coverings; it does not address whether the employee can bring their own from home. We suggest that the employer provide the coverings to ensure their efficacy. 

TESTING. All employers have new testing obligations, and if there is an outbreak, there are additional responsibilities. 

  • If testing is required under any part of the new Standard, the employer shall inform the effected employees of the reason for the COVID-19 testing and the possible consequences of a positive test.
  • When there has been even one COVID-19 case in the workplace, the employer must offer free COVID-19 testing during working hours to all employees who have potential COVID-19 exposure in the workplace.
  • Employers may not use COVID-19 testing as an alternative to face coverings when face coverings are otherwise required.

OUTBREAKS. If your workplace has an outbreak, you need to check with your local Public Health rules, the requirements of AB 685, SB 1159, and this new Standard!

“Multiple COVID-19 Infections and COVID-19 Outbreaks,” means the local public health department has determined the workplace has had an outbreak, or when there are three or more COVID-19 cases in an exposed workplace within a 14-day period.  In this situation, the employer must provide COVID-19 free testing to all employees at the exposed workplace during the period of the outbreak or the relevant 14-day period. This testing must be offered during employee working hours, and immediately upon being covered by this outbreak definition. Employers must then offer this same testing again one week later for the same employees. After the first two required COVID-19 tests, employers shall provide continuous COVID-19 testing of employees who remain at the workplace at least once per week or provide testing more frequently if recommended by the local health department.

“Major COVID-19 Outbreaks,” means there are 20 or more COVID-19 cases in an exposed workplace within a 30-day period. If a “Major COVID-19 Outbreak” occurs, the employer must provide free testing for all employees present at the exposed workplace during the relevant 30-day period(s) and who remain at the workplace. This testing must be offered during employee working hours, and twice a week or more frequently if recommended by the local health department.

Under either definition of an outbreak, if there is one, the employer must exclude all COVID-19 cases and employees with a COVID-19 exposure, conduct an investigation of the COVID-19 illness, and provide specific notice to the local public health department within 48-hours after knowledge of the outbreak.

Finally, under either definition of outbreak, the requirements of the outbreak apply until there are no new COVID-19 cases detected in a workplace for a 14-day period.

EMPLOYER-PROVIDED HOUSING AND TRANSPORTATION.  For employers that provide housing and transportation to employees, there are some new rules:   

If you provide housing for employees, you will be required to implement priority housing assignments based on individuals who work together on the same crew or shift. Additionally, you must be able to ensure sufficient space in the units to permit social distancing while the employees are in the various units, and you are responsible for ensuring the units are cleaned at least once a day. If residents are exposed to COVID-19, you must isolate that employee by providing a private bathroom, sleeping area, cooking, and eating facility.

If you provide transportation, employees must be screened before boarding, sit at least three feet apart, and wear face coverings during transportation.


Honestly, while some parts of this rule are new – the paid time off requirement and the testing in response to positive cases, etc. – I anticipate that you already had something similar to what Cal/OSHA wants in place already for the protocols. So, pat yourself on the back, exalt in your glory, get a big cup of coffee and take a close look at your written plan and the protocols to make sure you are in compliance with these rules. And we should know in a few days if these become Standards enforceable by Cal/OSHA.

Paid Sick Leave for Employers “Too Big” for FFCRA

Employers with more than 500 employees (and certain healthcare employers) were not required to provide paid sick leave under the federal FFCRA, a 2020 benefit I discuss in more detail in my blog (and would link here if wasn’t frustrated by this software and about to throw my computer out the window).

Last week, Governor Newsom signed AB1867 expanding the Paid Sick Leave to employees exempted from the FFCRA’s provisions. These new sick leave provisions take effect September 19th.  The California Labor Commissioner issued a new notice you can post here.

A new leave law! For REALLY small California employers!

The Great Rob Nuddleman just posted an important article on his blog about a new leave law for smaller employers. If you have ignored my FMLA/CFRA posts because you are “too small” have you got a change coming!

Read the full article here:

SB 1383 was just signed into law and it makes employers with 5 or more employees Covered Employers for purposes of the CFRA. These small employers will be required to provide up to 12 weeks of unpaid time off in the following situations:

(A) Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee.

(B) Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition.

(C) Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.

(D) Leave because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States, as specified in Section 3302.2 of the Unemployment Insurance Code.

See the full article (link above) to find out more about how this works.

AB 5, Revised!

Welp, there it is:  Today, Governor Newsom signed AB 2257, which “revises and recasts” parts of AB 5.  And if your industry had a good, vocal lobbyist, you may have good news!

Of note, even if your industry/occupation is no longer governed by AB 5’s ABC test, the relationship is governed by the multifactor test previously adopted in the case of S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.

Among other things, the new law –which takes effect immediately – does the following:

• Exempts certain occupations in connection with creating, marketing, promoting, or distributing sound recordings or musical compositions.

• Exempts a musician or musical group for the purpose of a single-engagement live performance event, unless certain conditions apply, and would define related terms.

• Exempts an individual performance artist presenting material that is their original work and creative in character and the result of which depends primarily on the individual’s invention, imagination, or talent, if certain conditions are satisfied.

• Deletes the existing professional services exemptions for services provided by still photographers, photojournalists, freelance writers, editors, and newspaper cartoonists. Instead, the law establishes an exemption for services provided by a still photographer, photojournalist, videographer, or photo editor, as defined, who works under a written contract that specifies certain terms, subject to prescribed restrictions.

• Establishes an exemption for services provided to a digital content aggregator, as defined, by a still photographer, photojournalist, videographer, or photo editor.

• Establishes an exemption for services provided by a fine artist, freelance writer, translator, editor, content contributor, advisor, narrator, cartographer, producer, copy editor, illustrator, or newspaper cartoonist who works under a written contract that specifies certain terms, subject to prescribed restrictions.

• Creates additional exemptions for various professions and occupations. In this regard, the bill would exempt from the “ABC test” people who provide underwriting inspections and other services for the insurance industry, a manufactured housing salesperson, subject to certain obligations, people engaged by an international exchange visitor program, as specified, consulting services, animal services, and competition judges with specialized skills, as specified.  

• Creates exceptions for licensed landscape architects, specialized performers teaching master classes, registered professional foresters, real estate appraisers and home inspectors, and feedback aggregators.

• Revises the conditions pursuant to which business service providers providing services pursuant to contract to another business are exempt. The law revises the criteria pursuant to which referral agencies and service providers providing services to clients through referral agencies are exempt and would revise applicable definitions.

• Creates an exemption for business-to-business relationships between 2 or more sole proprietors, as specified. The law provides that a hiring entity need only satisfy all of the conditions of one of the exemption provisions to qualify for the exemption from the ABC Test.

Does your relationship fit under these new rules?  Did you change how you were paying workers and now this changes what you THOUGHT were the rules?

This may shock you – this isn’t a complete explanation. But it is the Friday afternoon before a long weekend (during which I will do the same thing I do every weekend – not leave my house). But I am just summarizing a summary here. More to come when this is all parsed out!

CDPH’s Guidance for Employers re COVID-19

We’ve all been reviewing the appropriate county and state guidance for returning employees to work – and I’ve had some questions about the State’s overarching document.  So, note that the California Department of Public Health’s guidance for employers Responding to COVID-19 in the Workplace is here.

Welp . . . maybe all those new California bills won’t be going anywhere soon

I attended a great webinar last week on AB 5 (the independent contractor law that took effect in the old days — January 2020).  I mean, I know it ALL but . . . you know, to hear other people’s impressions of the implications of the law. One thing that was news to me is that there are 30 pending bills in the California legislature for substantive (and some non substantive) changes to the law.

I was looking to create a tracking log for these in terms of those I need to follow and then this just popped up on my phone:

“California Assembly postpones return to Sacramento – members and staff positive for COVID-19”

The Senate plans to return Monday. . .

COVID-19 Paid sick leave for bigger (and smaller) employers in San Jose, San Francisco and TBA . . .

A phrase that bugs me (since it means someone is going to pull some “whataboutism” on me) is “I think we can all agree . . .” But there comes a time when you just have to use it. So. . . I think we can all agree that it has been “a week/month/2020.”

But wait, there’s more!

A big change this week is for employers in the City of San Jose or San Francisco (and Oakland and Emeryville by the time I post this). Such employers may have understood that the new federal Paid Sick Leave (FPSL) and emergency FMLA (eFMLA) under FFCRA didn’t apply to you because of your size. Welp, that changed!

San Jose’s COVID-10 Paid Sick Leave Ordinance is intended to cover employers too big (over 500 employees) AND less than 50 employees. As you know, employers with less than 50 employees may have been exempt from FFCRA’s rules if the provision of the benefits would be detrimental to the financial viability of the company.

Under the San Jose emergency ordinance, businesses that remain in operation during the county and state’s stay-at-home mandates are required to provide employees affected by coronavirus with an 80 hours of sick leave. Businesses that already provide employees with at least 80 hours of paid sick leave or PTO are exempt. If an employer provides less than 80 hours, they have to offer the difference.

Generally, San Francisco employers who were too big (over 500 employees nationally), are now covered by the SF Public Health Emergency Leave Ordinance. This provides that employees who have performed 56 or more hours as an employee with SF during the year before the effective date of the ordinance get up to 80 hours of supplemental paid leave for COVID-19 related reasons. As with the FFCRA, healthcare worker are not eligible. This paid sick leave is in addition to sick leave under state and local law.

We’re still reviewing the new rules, so if you have questions, let me know!

The Paycheck Protection Program . . . a brief summary

Part of the relief package passed by the federal government (the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act includes the Paycheck Protection Program.  The Paycheck Protection Program will provide cash to support emergency loans to qualifying businesses. Through the Program, the Small Business Administration (“SBA”) has the authority to provide 100% federally backed loans through December 31, 2020 to help eligible businesses pay operational costs such as payroll, rent, and utilities. If a business satisfies certain conditions, portions of the loans are forgivable!

Who is Eligible?

Generally, businesses (including, sole-proprietors, independent contractors, and other self-employed individuals) with fewer than 500 employees, that were in operation on February 15, 2020, and paid (salaries, compensation, and payroll taxes) employees or independent contractors are eligible for the Paycheck Protection Program. The 500-employee threshold includes all employees, including full-time, part-time and any other status. There are some limited exceptions to the 500-employee eligibility requirement for certain industries, such as businesses in the hospitality and food sectors that have multiple locations, which can have up to 500 employees per physical location of the business.

What is the maximum loan amount?
During the Covered Period (February 15, 2020 through June 30, 2020),  an eligible business’s maximum loan amount is based upon the business’s average total monthly payroll costs incurred during the one-year period before the date of the loan. (There is an adjustment for a seasonal workforce). For the period, an eligible business may receive up to 2.5 times its average monthly payroll costs subject to a $10 million limitation.

When determining what the “average total monthly payroll costs” are, the following are excluded:

  • Individual employee compensation over $100,000;
  • Payroll and income taxes;
  • Compensation for an employee with a principal place of residence outside the United States; and
  • Qualified sick leave or family leave wages for which a business will receive a credit under the Families First Coronavirus Response Act.

What can the loaned funds be used for?
During the Covered Period, an eligible business can the founds for the following:

  • Payroll costs;
  • Cost related to the continuation of group health care benefits during periods of paid sick, medical, or family leave, and insurance premiums;
  • Employee salaries;
  • Interest payments on any mortgage;
  • Rent and utility payments; and
  • Interest payments on any other debt obligations that were incurred before February 15, 2020.

This loan might forgiven?!!!
A loan through the Program is eligible for loan forgiveness. The amount of forgiveness cannot exceed the principal amount of the loan, but may equal up to a business’s costs during the 8 weeks following the date of the loan’s origination for the following categories of expenditures:

  • Payroll costs;
  • Interest on real or personal property mortgage obligations in existence before February 15, 2020 and incurred in the ordinary course;
  • Rent under a lease agreement in force before February 15, 2020; and
  • Utility payments, including electricity, gas, water, transportation, telephone or internet, for which service began before February 15, 2020.

The amount of loan forgiveness is subject to reduction based on a business’s decline in headcount or wages. Declines in headcount or wages between February 15, 2020 and April 26, 2020 will not trigger a reduction in loan forgiveness if the business reverses the decline and returns to pre-decline levels by June 30, 2020. Loan forgiveness will not be included in a business’s taxable income.

What else?

  • Collateral and a personal guarantee are not required (except if the funds are used for non-allowable uses).
  • SBA loan fees are waived for a loan.
  • Payments of principal and interest on a loan are deferred for a period of six months to one year.
  • There is no prepayment penalty.
  • The maximum rate of interest that can be charged for a is four percent; the maximum term is ten years from the date on which the business applies for loan forgiveness.

How does this program work with the Payroll Tax Credits under the FFCRA (for paid sick leave and emergency FMLA)?

A business that gets a loan through the program will not be able to use the payroll tax credits available under the FFCRA.


As per all these emergency laws, more guidance is forthcoming from the SBA!

Remember: A termination is (usually) a termination and we have RULES in California about that!

In California, when an employee is involuntarily terminated, all wages earned (including earned commissions and bonuses) and all accrued paid time off (vacation or PTO) must be paid out at termination.

When these amounts are not paid at termination, the employer must pay waiting time penalties. These can be costly – a full days’ wage for every day any of those monies are unpaid, up to thirty calendar days.

If a California employer lays off an employee without a return date within the pay period (or “furloughs” the employee or “sends them home without an expected return date because of a Stay at Home / Shelter in Place order”), the final pay rules are triggered.

The Labor Commissioner’s policy is that if there is a return date within the pay period and the employee is scheduled to return to work, the wages may be paid at the next regular pay day (and the payment rule isn’t triggered).

These are complicated issues given the Stay at Home orders (county and state). Be sure to check with legal counsel to help you navigate them.

The Governor’s Temporary “Suspension” of parts of Cal-WARN

Just to keep the blog links going . . . Here is a link to the Labor Commissioner’s Guidance on Conditional Suspension of California WARN Act Notice Requirements under Executive Order N-31-20.  And below is some guidance about the “suspension” of parts of Cal-WARN.

FedWARN.  There are two “WARN” acts that California employers have to be mindful of – the federal WARN act and California’s Cal-WARN. And of course, they are different!

The federal WARN act applies to employers of 100 or more full-time employees (or 100 full-time and part-time employees who work a total of 4,000 non-overtime hours per week. A covered employer must give 60-days notice to affected employees and specified government officials before it: (i) shuts down an employment site that causes employment loss for 50 or more full-time employees; (ii) conducts a layoff that effects 50 or more employees and 33% or more of the total workforce at a single location; or (iii) lays off 500 or more employees at a single location. Of note during this current crisis is that federal WARN has several exceptions. WARN does not apply to layoffs lasting less than 6 months. Nor does WARN apply to closures or layoffs resulting from a “natural disaster.” Finally, an employer could give less than 60 days notice in the case of a closure or layoff resulting from “business circumstances that were not reasonably foreseeable.”

Cal-WARN. Cal-WARN applies to an employer who has employed 75 or more persons, including part-time employees, at a single industrial or commercial facility (called a “covered establishment”) within the preceding 12 months. An employer has to give 60-days notice before (1) terminating operations at the covered establishment; (2) relocating the covered establishment’s operations more than 100 miles; or (3) laying off 50 or more employees at the covered establishment in a 30-day period. For an employee to count as part of the 50-employee threshold, that person must have worked for the employer for at least 6 of the preceding 12 months. Cal-WARN doesn’t have some of the helpful exceptions of WARN with regard to the shelter in place, etc. While WARN only applied to layoffs exceeding 6 months, Cal-WARN applies to layoffs of any duration. As such, employers must comply with Cal-WARN even for a short-term layoff. Prior to the Governor’s Executive Order, Cal-WARN had no express exception for unforeseen business circumstances.

The Executive Order Change About Cal-WARN.  Governor Newsom’s  Exeuctive ORder, which I blogged a link to here: Relief regarding mass terminations from Governor Newsom applies from March 4, 2020, through the end of the declared State of Emergency, suspends the 60-day notice requirement of Cal-WARN for employers who meet certain conditions.

While Cal-WARN still applies, the notice requirement is to be given “as soon as practicable.” The notices must include a basis for reducing the notification period, including reference to being due to “business circumstances that were not reasonably foreseeable as of the time of the notice would have been required.” In order to avail themselves of the exception, then, employers must:

  • Provide the requisite written notices to employees impacted by the mass layoffs or shutdown, and state and local government;
  • Provide as much paid notice as possible, and to explain in writing to the impacted employees and state and local government why full notice cannot be given, and
  • Expressly notify employees of their eligibility for unemployment insurance benefits (the written notice must contain the following statement: “If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UI and other resources available for workers is available at“)

Employers must establish a causal connection between the mass layoff or shutdown and COVID-19. For example, if an employer was already planning a Cal WARN-triggering mass layoff or shutdown before the onset of the COVID-19 emergency, the executive order would not apply to such a layoff or shutdown.