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Beth is a Shareholder and Chair of the Firm’s Labor and Employment Group. She is admitted to practice law in California and Washington. She has years of experience assisting employers in all aspects of their employment relationship with their employees. Her practice focuses on counseling and training employers, HR professionals, and managers.

At its June 9, 2021, special meeting, the Cal/OSHA Standards Board voted to withdraw the revisions to the Emergency Temporary Standards (ETS) that had been approved at its June 3rd meeting. You can find more information here.

Despite California’s Plan to Reopen on June 15, 2021, The Revised COVID-19 Emergency Temporary Standards Still Impose Restrictions in the Workplace

After an all-day meeting on June 3, 2021, the Cal/OSHA Standards Board approved revisions to the COVID-19 Emergency Temporary Standards (“ETS” or “regulations”). The Board first indicated a vote to reject the revised regulations, but then did a complete 180 and voted unanimously to approve them as a stop-gap measure while its newly-formed Board subcommittee worked to consider further revisions that are more in line with California’s Department of Public Health and  CDC guidelines.

Below are just some of the highlights from the revised ETS:

  • The revised ETS contain some new terms that are relevant when analyzing an employee’s exposure to COVID-19.

o   The term “Close contact” replaces the previous term “COVID-19 exposure.” “Close contact” is defined as “being within six feet of a COVID-19 case for a cumulative total of 15 minutes or greater in any 24-hour period within or overlapping with the ‘high-risk exposure period’ defined by this section. This definition applies regardless of the use of face coverings.” (§3205(b)(1).)

o   The term “Exposed group” replaces the previous term “Exposed workplace.” “Exposed group” is defined as “all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period.  A common area at work includes bathrooms, walkways, hallways, aisles, break or eating areas, and waiting areas.” (§3205(b)(7).)

o   There are certain exceptions where individuals will not be considered to be in the “exposed group” – e.g. where a person momentarily passes through a place where everyone is wearing face coverings, where a person was not present at the same time (e.g. on a different shift) from the COVID-19 case, or where the COVID-19 case visited a work location or area for less than 15 minutes during the high-risk exposure period and everyone was wearing a face covering.

  • The “High-risk exposure period” is defined to mean the following time periods:

o   For COVID-19 cases who develop symptoms, from two days before they first develop symptoms until all the following are true: 10 days have passed since symptoms first appeared; 24 hours have passed with no fever, without use of fever-reducing medications; and symptoms have improved.

o   For COVID-19 cases who never develop symptoms, from two days before until 10 days after the specimen for their first positive test for COVID-19 was collected.
Continue Reading Cal/OSHA Update: Don’t Take That Mask Off Just Yet!

The American Rescue Plan Act of 2021 (“ARPA”) was signed by President Biden on March 11, 2021.  Part 5 of the ARPA provides for additional credits to employers whose choose to grant paid sick leave and emergency family leave to eligible employees under the FFCRA.

To be clear, the ARPA does not require employers provide

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

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

On December 14, 2020, Governor Newsom issued Executive Order N-84-20 which, among other things, modified CalOSHA’s emergency COVID-19 regulations.

Background.

On November 30, 2020, CalOSHA’s emergency temporary regulations concerning COVID-19 prevention in places of employment (ETS) went into effect.  Among other requirements, the ETS directed employers to exclude from the workplace for 14 days those employees who have been exposed to COVID-19, reflecting the then-current guidance of the Centers for Disease Control and Prevention (CDC) and the California Department of Public Health (CDPH) on quarantining after being exposed to COVID-19.
Continue Reading Newsom Signs Executive Order Modifying CalOSHA’s Emergency Temporary COVID-19 Regulations