While employers were busy dealing with a multitude of issues during the peak of the Covid-19 pandemic in the Spring of 2020, the California Department of Fair Employment and Housing (“DFEH”) quietly issued some amended regulations that employers should be aware of as they relate to employer interviewing and hiring practices. The regulations went into effect on July 1, 2020 and below are some of the highlights.

  1. Employers cannot seek information about an applicant’s religion or disability through certain pre-employment questions about the applicant’s availability for work. The regulations state expressly that:

Pre-employment inquiries regarding an applicant’s availability for work on certain days and times shall not be used to ascertain the applicant’s religious creed, disability, or medical condition. Such inquiries must clearly communicate that an employee need not disclose any scheduling restrictions based on legally protected grounds, in language such as: “Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?” or “Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule?

  1. Likewise, an application for employment also cannot contain such questions. The regulations provide that:

“Schedule Information. An application’s request for information related to schedule and availability for work shall not be used to ascertain the applicant’s religious creed, disability, or medical condition. Such requests must clearly communicate that an employee need not disclose any scheduling restrictions based on legally protected grounds in language such as: “Other than time off for reasons related to your religion, a disability, or a medical condition, are there any days or times when you are unavailable to work?” or “Other than time off for reasons related to your religion, a disability, or a medical condition, are you available to work the proposed schedule? Continue Reading Are You Asking Applicants When They Can’t Work? If So, You May Be Violating FEHA

The CDC’s guidelines state that individuals should quarantine for 14 days after contact with someone with COVID-19, which can be reduced to 10 days if no symptoms developed after exposure.  Now that vaccines are becoming more widely available, employers are asking whether the quarantine period can be shortened or eliminated for their workers who have received the vaccine.

The CDC has stated that the quarantine period can be eliminated entirely for a fully vaccinated individual who meets all criteria – but the guidance is conditioned on the individual meeting all three criteria:

The criteria for allowing a vaccinated individual to skip quarantine – and continue working – after exposure to a COVID-19 case, are: Continue Reading Updated CDC Guidance: Fully Vaccinated Individuals Need Not Quarantine After COVID-19 Exposure

On January 8, 2021 the California Department of Fair Employment and Housing (“DFEH”) issued new Posters, Fact Sheets, FAQs, and Certification forms in connection with the expansion of the California Family Rights Act (“CFRA”) and its interplay with the Pregnancy Disability Leave law (“PDL”).

As the DFEH’s Fact Sheet specific to 2021 explains, recent legislation (Senate Bill 1383) expanded CFRA in several major respects.  Below is a summary of the major changes: Continue Reading DFEH Issues New Publications and Forms In Connection with the Expansion of the CFRA

Effective January 1, 2021, California’s minimum wage rate increased to $14.00 per hour (from $13.00) for employers with 26 or more employees and $13.00 per hour (from $12.00) for employers with 25 or fewer employees. The minimum wage will continue to increase yearly until it reaches $15.00 per hour on January 1, 2022 for employers with 26 or more employees and January 1, 2023 for employers with 25 or fewer employees.

In California, many cities and counties are increasing their minimum wages faster than the state. Click here for a chart of increases set to take place in 2021.

Also note that effective January 1, 2021, the minimum salary threshold for exempt executive, administrative, and professional employees is as follows:

  • $58,240 per year (or $1,120 per week) for employers of 26 or more employees
  • $54,080 per year (or $1,040 per week) for employers of 25 or fewer employees

Further, in order to maintain their exempt status, commissioned inside salespeople will need to earn more than $21 per hour (for employers of 26 of more employees) or $19.50 per hour (for employers of 25 or fewer employees).

The FDA’s rollout of COVID-19 vaccinations has given hope to many employers that we may finally be witnessing the horizon of the pandemic. But this good news comes with a few side-effects, including the question of whether employers can require, or even encourage, their employees to get vaccinated.

To that end, on December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding the COVID-19 vaccinations in the workplace and the interplay with other employment laws.

Most significantly, the EEOC guidance makes clear that employers are legally allowed to mandate vaccines before employees are permitted to return to work, provided the employer makes accommodations for employees with certain disabilities and sincerely held religious beliefs.

Medical Accommodation Under Mandatory Vaccination Policy:

The Americans with Disabilities Act (“ADA”) permits employers to have an employment qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if such a standard tends to screen out individuals with a disability—something mandatory vaccination could do—then the employer must show that the unvaccinated employee would pose a substantial risk of harm to others that cannot be eliminated or reduced by reasonable accommodation. To make this determination, employers should conduct an individualized assessment of four factors: (1) the duration of the risk; (2) the nature of the severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

The EEOC indicated that a “direct threat” would include an unvaccinated employee who exposes other employees to the COVID-19 virus. If such an employee cannot be vaccinated due to a disability, the employer can exclude the employee from the workplace if there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk caused by the unvaccinated employee.

If the threat caused by the employee cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace. However, all other federal, state and local EEO laws and employee rights will need to be taken into account before such an employee can be automatically terminated. This may include providing telework, and if no such work is available, to continue to provide those eligible with leave under the Families First Coronavirus Response Act or other employer policies.

Employers must also engage in the interactive process to explore available accommodations. The EEOC made clear that the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available. Continue Reading Mandatory Vaccines in the Workplace? New EEOC Guidance Regarding What Employers Can Do