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!
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The coming of a new year means the coming of new California employment and labor laws. As always, Leap Solutions is here to help you face them proactively and confidently. Our HR professionals have the knowledge, expertise and resources to inform and guide you through ever-changing legislation and empower your company to thrive in 2020 and beyond.
Independent Contractor Classification
Effective Jan 1, 2020, and meant to address potential exploitation of workers misclassified as independent contractors, California Assembly Bill 5 (AB-5) prohibits employers from classifying workers as independent contractors unless they can conclusively demonstrate that the individuals meet all three conditions of a three-part “ABC” test.
What this could mean for you: While a number of licensed professionals, types of work and industries are exempted from AB-5, Leap Solutions encourages every employer to carefully review each independent contractor relationship and establish best practices for managing such relationships with full transparency. In some cases, employers may be required to reclassify independent contractors as employees (and provide all the rights, protections and benefits accorded to them as such). In all cases, you’ll want to develop contract terms, rate negotiations, work structures and documentation guidelines for all independent contractor arrangements to ensure total compliance with the new law.
Employment Harassment and Discrimination Extension
Assembly Bill 9 also goes into effect on January 1, 2020, and broadens the time limit for filing harassment and discrimination claims under California’s Fair Employment and Housing Act (FEHA). Known as the Stop Harassment and Reporting Extension (SHARE) Act, the legislation extends the deadline for employees to file allegations of unlawful workplace harassment, discrimination or civil-rights-related retaliation from one to three years.
What this could mean for you: Employers can protect themselves by renewing their commitment to inclusive, respectful, safe and responsive workplaces. Develop an easy-to-understand, comprehensive written policy for preventing harassment, discrimination and retaliation. Conduct thorough sexual harassment training for all-level employees, and establish protocols for complaints and for prompt, thorough, fair and impartial investigations. Put yourself in the best position to defend against any possible future claims by maintaining (and storing) careful and objective documentation of complaints, witness interviews, factual findings, conclusions and all steps and/or remedial actions taken.
Sexual Harassment Prevention Training Extension
Senate Bill 778 gives smaller employers a one-year extension on the sexual harassment prevention training deadline set forth in Senate Bill 1343 last year. Now, all employers with 5 or more employees must complete the training by January 1, 2021. Senate Bill 530 further clarifies that for seasonal or temporary employees who will work for fewer than six months, training needs to take place within 30 calendar days of hire date or within 100 hours worked (whichever is earlier) beginning January 1, 2021.
What this could mean for you: While the deadline is now January 2021 for smaller companies, you should implement the required trainings in 2020 in order to be compliant by that date. In light of the ongoing #MeToo movement, there’s no better time than now to protect your company and your employees by actively fostering a harassment-free work environment.
“White Collar” Salary Thresholds
Effective January 1, 2020, the U.S. Department of Labor is increasing the salary threshold for exempting “white collar” employees from the minimum wage and overtime pay requirements of the Fair Labor Standards Act (FLSA). The federal ruling increases the minimum salary level for exemption from $455 per week to $684, or $35,568 per year. Up to 10% of the minimum salary may be commissions and incentive pay. The ruling also increases from $100,000 to $107,432 the total annual compensation required for employees to qualify under the shorter highly compensated employee (HCE) test. In California, exempt status requires at least two times the minimum wage. Effective January 1, 2020, the California threshold for employers of 26 or more employees will increase to $54,080 per year (or $1,040 per week).
What this could mean for you: Employers should take a look at the compensation levels of all salaried employees; if any are no longer in compliance with the new minimums, consider adjusting salaries accordingly or reclassifying employees as non-exempt. This is an ideal time to conduct a market-based compensation analysis; Leap Solutions can help you determine your compensation formula based on job, region, function and industry and develop or update pay scales and clear job descriptions.
Banning Arbitration as Condition of Employment
Assembly Bill 51 bans employers from requiring employees or applicants to waive any right, forum or procedure under California’s Fair Employment and Housing Act (FEHA) or Labor Code as a condition of employment—prohibiting the use of mandatory arbitration as a condition of employment. The legislation further prohibits employers from retaliating or threatening employees who refuse to waive such rights. The bill applies to agreements entered into, modified or extended on or after January 1, 2020, and does not apply to post dispute settlements or negotiated severance agreements.
What this could mean for you: While we have no way of knowing how this new California legislation might be tested and whether it may be preempted by the Federal Arbitration Act (FAA), we do know that California employers can no longer require employees to sign pre-dispute mandatory arbitration agreements. If you would still like to offer arbitration agreements, be certain that they are not mandatory (or implied as mandatory), and they do not violate any employee rights. We recommend having any arbitration agreement reviewed by legal counsel.
Occupational Injury and Illness Reporting
Effective January 1, 2020, Assembly Bill 1804 requires employers to report serious injury, illness or death immediately by phone or through a dedicated online mechanism established by the Division of Occupational Safety and Health (Cal/OSHA). (Note: until that online mechanism is in operation, email notification will still be allowed). Also effective January 1, 2020, Assembly Bill 1805 revises the definition of “serious injury or illness” in the workplace to remove the 24-hour minimum time requirement for qualifying hospitalizations, exclude hospitalizations for medical observation or diagnostic testing, include loss of an eye and amputation, and more. The bill also revises the definition of “serious exposure” as exposure to a hazardous substance in a degree or amount sufficient to create a realistic possibility of causing death or serious physical harm in the future.
What this could mean for you: The new reporting mechanism and expanded injury, illness and exposure definitions mean employers can expect to be required to contact Cal/OSHA more frequently than in the past. (Note: employers continue to be required to report “serious injuries and illnesses” immediately but no later than eight hours after the employer knows of the death or serious injury or illness.) We recommend companies set clear and thorough injury/illness/exposure event policies and procedures and communicate these and Cal/OSHA reporting requirements with all employees.
Beginning January 1, 2020, Senate Bill 142 requires businesses to provide reasonable break time and safe and clean lactation facilities for employees that meet minimum requirements (including access to electricity, a sink with running water and a refrigerator). It also requires that lactation facilities be built in new construction. The law ensures that employees receive written information about their rights to a safe and comfortable lactation space at work and their right to file a claim with the Labor Commissioner for any law violation.
What this could mean for you: The law does allow for exemptions by certain employers who can demonstrate undue hardship by causing the employer significant difficulty or expense. However, all employers will want to be creative and do everything possible to provide lactating employees with facilities that fully satisfy the law’s requirements. Update your employee handbook with detailed written lactation policies, communicate to your employees how to request an accommodation, and document your timely response.
Update Your Policies
- AB-1223: Employers with 15 or more employees must provide an additional 30 days (beyond the initial paid 30 days) of unpaid leave for organ donations. Update the organ donation policy in your employee handbook.
- AB-1554: Toward the end of each benefit year, employers must provide two forms of notice to employees participating in a flexible spending account (including a health savings, dependent care or adoption assistance account) to inform them of upcoming withdrawal deadlines.
- SB-188: This legislation redefines race under California’s Fair Employment and Housing Act (FEHA) to include “traits historically associated with race” including hair texture and protective hairstyles. Update your discrimination policy to include this protection.
- SB-83: Not effective until July 1, 2020, SB-83 increases paid family leave from six to eight weeks and creates a task force to develop a proposal for further job protections, including an increased wage replacement rate. Update your handbook accordingly.
January 1, 2020, also brings another increase in the hourly minimum wage:
- for California employers with 25 or fewer employees, the minimum wage will be $12.00 per hour;
- for those with 26 or more employees, the minimum wage will be $13.00 per hour.
Update your California Labor Law posters to reflect mandatory notice requirements from DFEH, Cal/OSHA and the Family Care and Medical Leave and Pregnancy Disability Leave (CFRA). (Leap can help!)
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 2020?
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