Reporting Requirements for COVID-19 in the Workplace
As COVID-19 cases continue to rise in California, employers are faced with an increasing number of requirements to promptly report illnesses and deaths related to the SARS-CoV-2 virus. In order to simplify reporting obligations imposed by state and federal agencies, Martin Law has prepared a table with guidelines that are current as of the date of publication (October 28, 2020). Employers should also confirm they are complying with any requirements imposed by counties in which they operate or have employees.
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Recent Updates to the Fair Chance Act
What is the Fair Chance Act?
The California Department of Fair Employment and Housing (DFEH) recently announced updated regulations to California’s Fair Chance Act of 2018. This Act, also known as “Ban the Box,” prohibits private and public sector employers with five or more employees from inquiring about a job applicant’s criminal record before making a conditional offer of employment. The law is designed to help those with criminal histories obtain gainful employment.
New Updates to the Fair Chance Act
As of October 1, 2020, new regulatory updates went into effect for the Fair Chance Act. The DFEH recently released a Frequently Asked Questions document to explain the basic tenants of the Act in its new form. The major takeaways include:
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New Pay Data Reporting Law Increases Enforcement of Equal Pay and Anti-Discrimination Laws
Last week, Governor Newsom signed into law Senate Bill 973 requiring certain employers to file a pay data report with the Department of Fair Employment and Housing (“DFEH”) containing information about employees’ pay, position, and demographics. The purpose of the new law is to strengthen enforcement of California’s Equal Pay Act, which requires equal pay for substantially similar work regardless of sex, race, or ethnicity.
The new law specifically provides that it is in response to the elimination of pay data by gender, race, and ethnicity on the Employer Information Report (“EEO-1”) by the current administration under federal law—“It is the intent of the Legislature, in enacting this bill, to ensure that this pay data will continue to be compiled and aggregated in California.” Further, the new law makes clear that the pay data collected from employers will be used for “targeted enforcement” of equal pay and anti-discrimination laws.
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AB 1867 – Supplemental COVID-19 Paid Sick Leave
On September 19, 2020, Assembly Bill 1867 went into effect. This new legislation requires certain private employers to provide their California employees with paid sick leave if the absence is related to COVID-19. It also codifies Executive Order N-51-20, which provides food sector workers with supplemental paid sick leave, and it expands FFCRA coverage to entities that employ emergency responders or healthcare providers. AB 1867 will remain in effect until December 31, 2020 or any extension of the Families First Coronavirus Response Act (FFCRA), whichever is later.
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New Law Expands and Clarifies Definition of Independent Contractor in California
On September 4, Governor Newsom signed Assembly Bill (AB) 2257. This new law modifies AB 5, whose strict ABC test resulted in many contractors being classified as employees. When passed, AB 5 impacted online content providers, news services, transportation companies, musicians, artists, and other California businesses that have traditionally relied on a contractor-based workforce.
AB 2257 provides much needed clarification of several ambiguities in AB 5, which exempted certain occupations and business relationships from the stringent ABC test and, instead, subjected them to the multifactor test described in S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989). These occupations and relationships included but were not limited to:
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DOL Issues Guidance for Employers on Tracking Remote Employee Hours
Employers across California have responded to the COVID-19 pandemic by transitioning their workforces to work remotely. Consequently, questions have arisen about employers’ obligations under the Fair Labor Standards Act (FLSA) to track unscheduled hours worked by their non-exempt employees.
Last week, the U.S. Department of Labor’s Wage and Hour Division (WHD) responded by issuing Field Assistance Bulletin (FAB) 2020-5, which provides employers with guidance on tracking compensable working hours for remote employees.
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California’s COVID-19 Employer Playbook
On July 28, 2020, the California Department of Public Health (CDPH) updated its new COVID-19 Employer Playbook. The purpose of the Playbook is meant to provide “guidance for employers to help them plan and prepare for reopening their business and to support a safe, clean environment for workers and customers.” The Playbook provides industry-specific guidelines and checklists for safely reopening businesses such as performing a detailed risk assessment, creating worksite specific COVID-19 prevention plans, worker training for preventing the spread of the coronavirus, social distancing guidelines, and directions for managing and preventing outbreaks in the workplace.
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Employee’s Failure to Initial Jury Waiver Provision Not a Bar to Enforcing Arbitration Agreement
Last year, David L. Martin appealed an order from the Los Angeles Superior Court denying a petition to compel arbitration. The lower court found that the lack of initials next to a jury waiver provision precluded enforcement.
On July 8, 2020, the Second District of the California Court of Appeal reversed, finding that the trial court erred in denying the petition to compel arbitration. The appellate court held that even though neither party initialed the jury waiver provision, both the employer and the employee assented to all the terms by signing the arbitration agreement. It further held that an employee’s “undisclosed assertions that he did not want to arbitrate or waive his jury trial right when he signed the agreement” is not to be considered as evidence of the lack of mutual assent.
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EEOC: COVID-19, Employers & Returning to Work
While states begin to re-open and employers slowly welcome back their employees, a flood of COVID-related discrimination, retaliation, and wage and hour claims are likely to appear. Cases of COVID-19 have seen recent spikes and concerns about lawsuits have left many employers looking for information on how to address such issues in the workplace.
The U.S. Equal Employment Opportunity Commission (EEOC) provides guidance for employers in its COVID-19 technical assistance publication. The EEOC last updated its publication on June 11, 2020, with the following need to know topics and more:
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