By Tracy Long & Tracy Emmerich
2022 has ushered in a few changes in the COVID landscape as it pertains to CalOSHA’s ETS and supplemental paid sick leave (SPSL).
In this issue of our newsletter:
- CalOSHA COVID-19 Prevention Emergency Temporary Standard (ETS)
- 2022 California COVID-19 Supplemental Paid Sick Leave (SPSL)
- Frequently Asked Questions
CalOSHA COVID-19 Prevention Emergency Temporary Standard (ETS)
Effective May 6, 2022, CalOSHA revised the COVID-19 Prevention ETS for the third time. This re-adoption is effective through December 31, 2022. (Note that high-risk settings may follow different protocols). Changes were made to allow more consistency and flexibility with the California Department of Public Health (CDPH) guidance. The changes include, but are not limited to:
• Face coverings are mandatory when CDPH requires their use. Requirements are the same for all employees regardless of vaccination status.
• Cleaning and disinfecting requirements were deleted.
• Respirators must be provided for voluntary use to employees who request them.
• Employers must offer COVID-19 testing at no cost to the employees, during paid time to:
›Symptomatic employees, regardless of vaccination status and regardless of whether there is a known exposure.
›All employees, regardless of vaccination status, who have had close contact with someone who has tested positive for COVID-19 (except those recently recovered).
›All employees, regardless of vaccination status, in an outbreak/major outbreak (except recently recovered or those not at work during the high-exposure period).
• Employees who test positive for COVID-19 must follow CDPH’s latest Isolation and Quarantine Guidance (The current version is dated 5/6/2022).
• Employees who have had close contact with someone who tested positive for COVID-19 must also follow CDPH’s latest Isolation and Quarantine Guidance
Requirements that are still in effect include, but are not limited to:
• Establishing, implementing, and maintaining an effective written COVID-19 Prevention Program.
• Providing effective training and instruction.
• Providing written notification to employees of exposure and close contacts.
• Responding to COVID-19 cases and outbreaks.
• Isolation and exclusion pay requirements.
HR2Leap Consultants can provide you with required resources and advice. Let us help you!
2022 California COVID-19 Supplemental Paid Sick Leave (SPSL)
Employers with 26 or more employees are subject to the SPSL law that went into effect in February 2022, but is retroactive to January 1, 2022. It remains in effect until September 30, 2022. SPSL provides up to 80 hours of COVID-19 related paid leave broken into two leave banks of up to 40 hours each (pro-rated if part-time).
Leave Bank 1 Covered Reasons
If the employee cannot work or telework due to a covered reason below:
Caring for Yourself: The covered employee is subject to a quarantine or isolation period related to COVID-19 (see note below), or has been advised by a healthcare provider to quarantine due to COVID-19, or is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
Caring for a Family Member*: The covered employee is caring for a family member who is either subject to a quarantine or isolation period related to COVID-19 or has been advised by a healthcare provider to quarantine due to COVID-19, or the employee is caring for a child whose school or place of care is closed or unavailable due to COVID-19 on the premises.
Vaccine-Related**: The covered employee or a qualifying family member is attending a vaccine appointment or cannot work or telework due to vaccine-related side effects.
*Family member is defined as a child, parent, spouse, registered domestic partner, grandchild, grandparent, or sibling.
**Time off for a COVID-19 vaccine or booster shot and/or vaccine or booster shot symptoms can be limited to a combined three days or 24 hours for each vaccine/booster. However, more than three days may be available if a health care provider verifies the individual continues to experience symptoms related to the vaccine/booster.
Leave Bank 2 Covered Reasons
Employee tests positive or is caring for a family member who tests positive for COVID-19. Employers may require documentation of the positive test for leave for this reason.
COVID-19 SPSL Poster: https://www.dir.ca.gov/dlse/COVID19resources/2022-COVID-19-SPSL-Poster.pdf
Frequently Asked Questions:
Q: An employee is quarantined at home, because they have symptoms, but continues to test negative. We have more than 25 employees, are they eligible for COVID Supplemental Paid Sick Leave (SPSL)?
A: Symptomatic employees should be excluded and test as soon as possible. If the employee is unable to telework, they may request to use CSSP for “Caring for Yourself – experiencing symptoms of COVID-19 and seeking a medical diagnosis” up to the time that they receive their diagnosis. If the employee remains off work after a negative test result, they may request to use their regular Paid Sick Leave, if available. (Note: If the employee was exposed to someone who has COVID, CDPH recommends continuing exclusion and retesting in 1-2 days, particularly if the employee tested during the first 1-2 days of symptoms with an antigen test.) If the employee tests positive during a retest, then the employee may request CSSP for all time missed through the positive confirmation from one bank of leave (up to 40 hours) and they may use the second bank of leave for time off due to the positive test (up to 40 hours).
Q: I tested positive for COVID-19, but I feel better on day five but continue to test positive, can I return to work with a mask?
A: If your COVID test on day 5 (or later) is positive, you may not return to the workplace until after day 10 and only if you are fever-free for 24 hours without the use of fever-reducing medications. Employees who test negative on day 5 (or later), may return to the workplace if symptoms are not present or are resolving, however, they must wear a face covering around others for a total of 10 days.
Q: If I have less than 26 employees and we are not required to pay SPSL, how does my employee get paid if they or their family member has COVID or are symptomatic?
A: The employer does not need to maintain the employee’s earnings and benefits if the employee is unable to work because of COVID/symptoms, if the exposure happened outside of the workplace. Such employees may be eligible for other leave, including paid sick leave, or other benefits such as Disability Insurance, Paid Family Leave, or Unemployment Insurance Benefits.
Q: What is Exclusion Pay?
A: An employee who was excluded from work because of a workplace COVID-19 exposure should receive exclusion pay if: 1) the employee was not assigned to telework during that time; and 2) the employee did not receive Disability Payments or Workers’ Compensation Temporary Disability Payments during the exclusion period. You are not required to pay exclusion pay if COVID was not due to a workplace exclusion. Employers may not require employees who are excluded from work under the ETS to first exhaust 2022 COVID-19 Supplemental Paid Sick Leave.
Don’t hesitate to reach out to our HR2Leap Consultants for the latest COVID guidance!
Are You Ready to Leap?
Leap Solutions is a diverse group of highly skilled management professionals serving our clients with their organizational development, human resources, and executive search and recruitment needs. We have spent decades doing what we feel passionate about helping you feel passionate about what you do. With the ever-changing COVID-19 response, our HR specialists can help you get a handle on the guidelines, programs, and legislation that may impact you and your employees. Through all of our services, we are available to work with you to develop practical solutions and smart planning decisions for your organization’s immediate, near, and long-term needs.
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By Tracy Long & Tracy Emmerich
With the end of the 2021 California legislative session, the State begins to roll out all the new employment laws and new regulations. Whether a large employer, small employer, or new startup, being on top of the newest laws not only keeps you informed but allows you to proactively strengthen your business. While some laws may start immediately, most become law on January 1, 2022. No matter the size of your business, number of employees, or industry, Leap Solutions is here to help you face these changes proactively and confidently.
In this issue of our newsletter:
- The Federal OSHA Emergency Temporary Standard
- Minimum Wage
- Updates on New and Current Legislative Bills
- On-going Mandatory Harassment Prevention Training
- Employee Handbook Review/Updates
- Injury and Illness Prevention Program and COVID Prevention Plan
- California Labor Law Posters
The California 2021 legislative session was active so we’ve compiled a few of the laws that were passed that may affect you starting immediately or on January 1, 2022. Leap Solutions HR professionals have the knowledge, expertise, and resources to inform and guide you through ever-changing legislation and empower your company to thrive in 2022 and beyond.
But first, the Federal OSHA Emergency Temporary Standard has been announced requiring employers with 100 or more employees to require that all employees be vaccinated (unless the employee qualifies for a medical or religious exemption) OR provide an option to be vaccinated or participate in weekly testing and mask-wearing. Covered employers are required to pay for a reasonable amount of time, including travel time, (up to four hours) to employees for their primary vaccination dose(s) and reasonable time and paid sick leave to recover from side effects. There is also a mandatory policy requirement (in the language and literacy level the employee understands) as well as other provisions. Employees have until January 4, 2022, to be vaccinated or to begin weekly testing and mask-wearing. Employers with less than 100 employees may not be out of the woods as OSHA is still researching whether the requirements are onerous for small businesses or not. We are also waiting on updated guidance from Cal/OSHA. For our small business clients, we will update you in a future newsletter.
2022 Minimum Wage
January 1, 2022, brings another increase in the California state hourly minimum wage for both non-exempt and exempt salary workers. Local (city and county) minimum wage ordinances may also be effective January 1, 2022 (although some city’s effective dates, like San Francisco, are effective July 1, 2022). We recommend that compensation be evaluated as soon as possible to reflect the changes on the 1st.
|25 Employees or Less
|26 or More
|100 or More
|CA Exempt salary threshold
|$15.85 (not dependent on employer size)
|$15.85 (not dependent on employer size)
SB 807 FEHA Record Retention – Eff: 09/23/2021
Under the amended law, employers will now be required to maintain personnel records for four years (instead of two). If litigation has been filed, those records must be maintained until the applicable statute of limitations has run or until the litigation has been concluded, whichever is later.
What this could mean for you: There are other record retention laws or statutes that affect personnel records. We recommend that you review your record’s retention policy to ensure that you are incorporating all of the applicable retention requirements and that you are considering comparability (we treat like cases alike) beyond those limits.
AB 1003 Wage Theft – Eff: 9/27/2021
The intentional theft of wages, including gratuities, benefits or other compensation, in an amount greater than $950 from any one employee, or $2,350 in the aggregate from 2 or more employees, by an employer in any consecutive 12-month period is punishable under the penal code as Grand Theft. For purposes of this provision, independent contractors are considered “employees”. Under existing law, grand theft is generally punishable either as a misdemeanor by imprisonment in a county jail for up to 1 year or as a felony by imprisonment in county jail for 16 months or 2 or 3 years.
What this could mean for you: Audit for wage and hour compliance including meal breaks and rest periods. Avoid misclassifying employees as independent contractors as the stakes just got a lot higher.
AB 1506 and AB 1561 Independent Contractors – Eff: 1/1/2022
Speaking of independent contractors, existing law creates a presumption that a worker who performs services for a hirer is an employee for purposes of claims for wages and benefits. A 3-part test, commonly known as the “ABC” test, is used to determine if workers are employees or independent contractors. Some occupations and business relationships are exempt from the application of the ABC test and the older “Borello” test applies instead. Newspaper carriers, licensed manicurists, and construction industry contractors/subcontractors are such entities and have been given extensions until 2025. Added to the exempt list are insurance claims adjustors and insurance third-party administrators.
What this could mean for you: Evaluate your independent contractors and ensure that they meet the applicable test or consider using a staffing agency to payroll the person for you.
SB 331 Non-disclosure and Settlement Agreement Limitations – Eff: 1/1/2022
Existing law prohibits a settlement agreement from preventing the disclosure of factual information regarding specified acts related to a claim. These acts include sexual assault, sexual harassment, an act of workplace harassment or discrimination based on sex, failure to prevent such an act, or retaliation against a person for reporting such an act. The amended law, known as the “Silenced No More Act,” expands the prohibition to include acts of workplace harassment or discrimination not based on sex. Furthermore, the law prohibits an employer from requiring an employee to sign a nondisparagement agreement or other document to the extent it has the purpose or effect of denying the employee the right to disclose information about unlawful acts in the workplace.
What this could mean for you: Unlawful acts in the workplace would include FEHA’s protected categories (race, religion, color, gender identity, etc.) and other conduct that the employee has reasonable cause to believe is unlawful (think missed rest/meal breaks, unpaid overtime, late paycheck, etc.). Ensure that Harassment Prevention training is up-to-date. Review confidential information and trade secret policies.
SB 657 Electronic Distribution of Required Employment Posters – Eff: 1/1/2022
Where an employer is required to physically post information, an employer may also distribute that information to employees by email with the document or documents attached. Although you may email the posters, the labor code does not alter the employer’s obligation to physically display required postings. (LC 1207)
What this could mean for you: This is optional in addition to physically displaying the posters. The new labor code affects the electronic distribution of notices required under the Labor Code which include wage orders, paid sick leave and Cal/OSHA notices. It does not cover federal posters and may not cover posters required through other state laws.
AB 1033 Extends CFRA Family Member to Include Parent-in-law – Eff: 9/27/2021
The California Family Rights Act, which affects employers with five or more employees, now includes leave to care for a parent-in-law within the definition of family care and medical leave. (This corrects a drafting error.) “Parent-in-law” means the parent of a spouse or domestic partner. Additionally, the bill established a more practical, streamlined procedure for implementing the small employer family leave mediation program.
What this could mean for you: Ensure that your handbook and/or other CFRA notice information is updated to reflect the family member change.
SB 606 Cal/OSHA Rebuttable Presumption of Enterprise-wide Violation – Eff: 1/1/2022
Cal/OSHA now has a rebuttable presumption that a violation committed by an employer with multiple worksites is Enterprise-wide if the employer has a written policy or procedure that violates OSHA rules or the laws OR they have evidence of a pattern or practice of the same violation(s) committed by that employer involving more than one of the employer’s worksites. Additionally, they have created a new Egregious violation that lists seven conditions of which you only need to violate one (Example: The employer, intentionally through conscious, voluntary action or inaction, made no reasonable effort to eliminate a known violation). For egregious violations, Cal/OSHA can now count each employee affected by the violation as a separate violation for purposes of assessing fines and penalties. (LC 6317)
What this could mean for you: Audit your safety policies and procedures. Ensure that supervisors know the safety rules, including for COVID, and how to enforce them. Give special attention to required written programs (Injury Illness Prevention Program, COVID Prevention Plan, Hazard Communication Programs, Workplace Violence Prevention Plans, Respiratory Protection Plans, etc.). Lack of implementation or enforcement could lead to penalties per employee.
AB 654 Notification of COVID Exposure – Eff: 10/5/2021
The amendment states that employers must notify “all employees who were on the premises at the same worksite as the qualifying individual within the infectious period” (not “employees who may have been exposed”) about the exposure. The timeline for reporting is one business day or 48 hours, whichever is later; however, the notice does not need to be provided on weekends and holidays. The notice must also indicate any benefits available and information about the cleaning and disinfection plan that the employer has implemented under Cal/OSHA standards. Several industries, including home health agencies and certain residential care facilities are not subject to the reporting requirement.
What this could mean for you: Update your COVID Prevention Plan (and if you don’t have one), reach out to us to help you develop one.
CA COVID-19 Paid Sick Leave – Expired 9/30/2021
Although the legislators attempted to extend CA COVID-19 Paid Sick Leave (SPSL) it expired on 9/30/2021 along with other city and county ordinances (although some cities and counties have extended their deadline including Oakland).
What this could mean for you: Now is the time to remove the state (and local-if applicable) Covid sick leave posters and to zero out any remaining sick leave balances that may be reflective on employee paystubs. We also recommend that you notify employees that the sick leave(s) have expired and let them know that they can use any unused, accrued sick, or vacation balances in their place.
Other legislation by industry includes:
AB 73 Wildfire Smoke Training for Agricultural Workers – Eff: 9/27/2021
AB 701 Warehouse Quota Restrictions for > 100 employees at one warehouse or >1,000 at one or more warehouses – Eff: 1/1/2022
SB 727 Construction Industry Joint Liability for Penalties/Liquidated Damages – Eff: 1/1/2022
SB 62 Garment “Brand Guarantors” Joint Liability for Wage and Hour Violations – Eff: 1/1/2022
Ongoing Mandatory Harassment Prevention Training
Employers with five or more employees must provide one hour of sexual harassment prevention training to nonsupervisory employees and two hours of training to employees with supervisory authority (This includes part-time, temporary, seasonal, and on-call staff as well as independent contractors, workers from staffing agencies, and employees outside of California, although you are only required to train supervisors located in California or those who supervise any California employees).
- Training must take place within six months of hire or promotion and every two years thereafter.
- Seasonal and temporary employees or employees hired to work less than 6 months, must be trained within 30 calendar days after hire or within 100 hours worked, whichever is earlier.
- Employers are not required to train employees who are employed for fewer than 30 calendar days and work for fewer than 100 hours
Leap Solutions can provide onsite or online Harassment Prevention Training for your employees!
Employee Handbook Review/Updates
If your employee handbook hasn’t been reviewed in over a year, you may have missed out on important changes that could affect employee retention and increase your liability. Our HR consultants work with you to customize your handbook while ensuring that you and your employees have clear, up-to-date information to inform and instruct.
Injury and Illness Prevention Program and COVID Prevention Plan
A written, effective Injury and Illness Prevention Program (IIPP) is required for every California employer and now so is a COVID Prevention Plan (CPP). We can develop a plan with you to ensure that you are in compliance!
Don’t Forget to Update Your California Labor Law Posters to Reflect 2022 Changes!
The California Department of Industrial Relations requires employers to post current information related to wages, hours and working conditions in an area frequented by employees where it may be easily read during the workday. CalChamber Store can help https://store.calchamber.com/20000034/products/posters/california-labor-law-posters
The HR professionals at Leap Solutions can demystify these and many other complicated new employment and labor laws for you, your employees, and your hiring managers and supervisors. Count on us to guide you through the complexities of each new piece of legislation and help you respond efficiently, reduce legal risk, minimize expenses and achieve the peace of mind that comes with keeping your organization compliant and your people safe, strong, and successful.
Are You Ready to Leap into 2022?
Leap Solutions is a diverse group of highly skilled management, organizational development, and human resources, and executive search and recruitment professionals who have spent decades doing what we feel passionate about helping you feel passionate about what you do. Our HR specialists can help you get a handle on the ever-changing COVID-19 guidelines, programs, and legislation that may impact you and your employees. We are available to work with you to develop practical solutions and smart planning decisions for your organization’s immediate, near, and long-term needs.
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