As we wrote on December 3, 2020, an emergency COVID-19 rule was adopted and approved by the California Occupational Safety and Health Standards Board. The regulation contains significant new requirements including a mandatory written “COVID-19 Prevention Program,” paid time off in certain circumstances when a “COVID-19 case” is excluded from the workplace, notice and training requirements, and requires that employers offer testing in some situations.
The emergency standards will remain in effect for 180 days unless renewed, withdrawn or replaced. It applies to all California employers covered by Cal/OSHA (generally, employers with ten or more employees at any time during the year). Continue Reading A Deeper Dive into the New Cal/OSHA Temporary Emergency Standards for COVID-19 Prevention
On December 3, 2020, California announced a new Regional Stay Home Order (“Order”), which will take effect no later than December 5, 2020. The Order divides California into 5 regions, and mandates that once a particular region’s ICU capacity falls below 15%, residents of that region will be ordered to remain home or at their place of residence, except for permitted work, local shopping or other permitted errands, or as otherwise authorized. Specifically, the Order prohibits private gatherings of any size, closes sector operations except for critical infrastructure and retail, and requires 100% masking and physical distancing in all others.
The regions are defined as follows:
- Northern California: Del Norte, Glenn, Humboldt, Lake, Lassen, Mendocino, Modoc, Shasta, Siskiyou, Tehama, Trinity
- Bay Area: Alameda, Contra Costa, Marin, Monterey, Napa, San Francisco, San Mateo, Santa Clara, Santa Cruz, Solano, Sonoma
- Greater Sacramento: Alpine, Amador, Butte, Colusa, El Dorado, Nevada, Placer, Plumas, Sacramento, Sierra, Sutter, Yolo, Yuba
- San Joaquin Valley: Calaveras, Fresno, Kern, Kings, Madera, Mariposa, Merced, San Benito, San Joaquin, Stanislaus, Tulare, Tuolumne
- Southern California: Imperial, Inyo, Los Angeles, Mono, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, Ventura
The Order will remain in effect for at least 3 weeks and, after that period, will be lifted when a region’s projected ICU capacity meets or exceeds 15%. This will be assessed on a weekly basis after the initial 3 week period. More information can be found at the state’s COVID-19 website at https://covid19.ca.gov/stay-home-except-for-essential-needs/. We will keep the blog updated as more information comes available.
On November 30, 2020, the California Division of Occupational Safety and Health’s (“Cal/OSHA”) Emergency COVID-19 Prevention Regulation went into effect. The regulations apply to all employers, employees, and to all places of employment with three exceptions: (1) workplaces where there is only one employee who does not have contact with other people; (2) employees who are working from home; and (3) employees who are covered by the Aerosol Transmissible Diseases regulation.
The emergency regulations provide additional requirements on employers in light of the COVID-19 pandemic in the following areas: COVID-19 prevention, the handling of COVID-19 infections and COVID-19 outbreaks (including major outbreaks), COVID-19 prevention in employer-provided housing, and COVID-19 prevention in employer-provided transportation to and from work. Employers should review the regulations in detail to understand how their own workplace might be affected. Among the issues addressed by the emergency regulations, are the following:
- Employers must adopt a written COVID-19 Prevention Program containing the following information:
- Communication to employees about the employer’s COVID-19 prevention procedures
- Identify, evaluate and correct COVID-19 hazards
- Physical distancing of at least six feet unless it is not possible
- Use of face coverings
- Use engineering controls, administrative controls and personal protective equipment as required to reduce transmission risk
- Procedures to investigate and respond to COVID-19 cases in the workplace
- Provide COVID-19 training to employees
- Provide testing to employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas
- Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk
- Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and the local health department, as required
- Guidance on dealing with employees who are COVID-19 positive, or who have been exposed to the illness. Specifically, employers are directed to exclude COVID-19-positive employees and those who have been exposed to COVID-19 from the workplace. If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits, unless the employer can establish the employee’s exposure was not work-related. The employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay, and may offset payments by the amount an employee receives in other benefit payments.
- Specific guidance on what additional actions employers must take amidst a major COVID-19 outbreak, which is defined as a covered workplace that has 20 or more COVID-19 cases within a 30 day-period.
Employers can find more information on the Cal/OSHA COVID-19 Guidance and Resources website here, (link https://www.dir.ca.gov/DIRNews/2020/2020-99.html. In addition, FAQ’s on the emergency regulations can be found here (link https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html).
These emergency regulations are now in effect. Employers should immediately review their Cal/OSHA COVID-19 Prevention Plans to ensure compliance with the new regulation. In many cases, employers will need to revise and update their plans, and payroll procedures previously implemented, in order to comply with these new emergency regulations.
The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your family good health during these challenging times. If we can assist you in any of your employment law needs, feel free to reach out to us.
On September 30, 2020 Governor Newsom signed Senate Bill 973 which requires large employers to report certain pay and other data to the Department of Fair Employment and Housing (DFEH) by March 31, 2021 and annually thereafter. On November 2, 2020, the DFEH issued certain FAQs regarding this new obligation and announced that it anticipates rolling out a secure online reporting system in advance of the 2021 filing deadline.
Below are a few of the DFEH’s FAQs.
Why does California require large employers to report pay data to DFEH?
(11/02/2020) In SB 973, the California Legislature required employers of 100 or more employees to report to DFEH pay and hours-worked data by job category and by sex, race, and ethnicity (hereinafter “pay data”). In enacting this legislation, the Legislature found that “[d]espite significant progress made in California in recent years to strengthen California’s equal pay laws, the gender pay gap persists, resulting in billions of dollars in lost wages for women each year in California. Pay discrimination is not just a women’s issue, but also harms families and the state’s economy. In California, in 2016, women working full time, year round made a median 88 cents to every dollar earned by men, and for women of color, that gap is far worse. Although there are legitimate and lawful reasons for paying some employees more than others, pay discrimination continues to exist, is often ‘hidden from sight,’ and can be the result of unconscious biases or historic inequities.”
By creating a system by which large employers report pay data annually to DFEH, the Legislature sought to encourage these employers to assess themselves pay disparities along gendered, racial, and ethnic lines in their workforce and promote voluntary compliance with equal pay and anti-discrimination laws. In addition, SB 973 authorized DFEH to enforce the Equal Pay Act (Labor Code section 1197.5), which prohibits unjustified pay disparities. The Fair Employment and Housing Act (Gov. Code § 12940 et seq.), already enforced by DFEH, prohibits pay discrimination. Employers’ pay data reports will allow DFEH to more efficiently identify wage patterns and allow for effective enforcement of equal pay or anti-discrimination laws, when appropriate. DFEH’s strategic vision is a California free of discrimination.
Will DFEH’s pay data reporting system be similar to the one used by the EEOC to collect EEO-1 Component 2 data?
(11/02/2020) To ease reporting by employers, DFEH is endeavoring to create a system that closely resembles the EEOC’s system to the extent permitted by state statute.
What is the deadline for employers to submit their pay data report(s) to DFEH?
(11/02/2020) Under Government Code section 12999(a), employers must submit their pay data reports to DFEH on or before March 31, 2021, and then on or before March 31 each year thereafter.
What are the penalties for employers who fail to file?
(11/02/2020) “If [DFEH] does not receive the required report from an employer, the department may seek an order requiring the employer to comply with these requirements and shall be entitled to recover the costs associated with seeking the order for compliance.” Gov. Code § 12999(h).
Will an employer’s pay data be publicly available?
(11/02/2020) Government Code 12999(i) prohibits DFEH, the Division of Labor Standards Enforcement (DLSE), and their staff from making “public in any manner whatever any individually identifiable information obtained pursuant to their authority under this section prior to the institution of an investigation or enforcement proceeding by [DFEH and/or DLSE] under Section 1197.5 of the Labor Code or Section 12940 involving that information, and only to the extent necessary for purposes of the enforcement proceeding. For the purposes of this section, ‘individually identifiable information’ means data submitted pursuant to this section that is associated with a specific person or business.”
The DFEH advises that further guidance is coming soon in updated FAQs on the following topics:
- What information/content is required in an employer’s report.
- Further information on the definition of “pay.”
- Further information on the definition of “hours worked.”
- Information regarding multi-establishment employers.
- Information on reporting obligations in connection with acquisitions and mergers.
The DFEH advises that it will be regularly updating the FAQs and it invites employers to write to the DFEH at firstname.lastname@example.org to pose additional questions. The DFEH’s FAQs can be found at https://www.dfeh.ca.gov/paydatareporting/.
The Labor and Employment attorneys at Weintraub Tobin assist employers in all aspects of their employment law compliance, including compliance with California’s Equal Pay Act. Please feel free to reach out to any of the attorneys if we can be of assistance to you in your employment law compliance. Stay healthy and stay safe.