UPDATE YOUR HANDBOOKS AND OTHER POLICIES IN 2022

COVID-19

The Cal/OSHA Emergency Temporary Standard (“ETS”) remain in effect. In conjunction with the ETS, Cal/OSHA has released “Frequently Asked Questions” addressing and clarifying key requirements, as well as a short fact sheet.

The regulations apply to all employers in California with 4 exceptions: (1) workplaces where there is only one employee who does not have contact with other people, (2) employees who are working at home, (3) employees who are covered by the Aerosol Transmissible Diseases (“ATD”) regulations (i.e. healthcare workers, first responders, skilled nursing facilities, etc.), (4) employees working from a location chosen by the employee, which is not under the control of the employer (for instance, an employee teleworking from a café or a friend’s home).

Additionally, please remember:

• Employers must give notice of potential COVID-19 exposures within one business day to all employees who may have been exposed, their authorized representatives, independent contractors, and other employers who were present during the high risk exposure period (generally 48 hours before onset of symptoms or positive test).
• Employers must require unvaccinated employees to wear face coverings indoors, subject to limited exceptions. (Note however that California currently remains under a mask mandate regardless of vaccination status.)  Employers must provide face coverings to employees.  Per newly adopted revisions effective January 14, 2022, employees who are exempted from wearing a face covering due to a medical or mental health condition, or disability and cannot wear a non-restrictive alternative must physically distance at least six feet from others and either be fully vaccinated or tested at least weekly for COVID-19.
• Per newly adopted revisions effective January 14, 2022, employers must provide testing to all employees who had close contact with a positive case in the workplace, regardless of vaccination status and regardless of whether they have symptoms.
• Per newly adopted revisions effective January 14, 2022, there are three requirements for asymptomatic vaccinated close contacts and close contacts who previously had COVID-19 but remained symptom free for 90 days to avoid exclusion from the workplace: (1) Wear a face covering at the workplace for 14 days following the last date of the close contact; (2) Maintain six feet of distance from others at the workplace for 14 days following the last date of close contact; and (3) Receive information from the employer about any additional applicable precautions from the California Department of Public Health (CDPH).
• Per newly adopted revisions effective January 14, 2022, an asymptomatic close contact (regardless of vaccination status) who is excluded from the workplace may return to work in one of the following ways: (1) Return after 14 days have passed since the last known close contact; (2) Return when 10 days have passed since the last known close contact, but wear a face covering and maintain six feet of distance from others while at the workplace for 14 days following the last date of close contact; and (3) Return when seven days have passed since the last known close contact if five or more days after the last known contact the employee tested negative for COVID-19, but wear a face covering and maintain six feet of distance from others while at the workplace for 14 days following the last date of close contact.
• Employers must continue to keep records of all confirmed COVID-19 cases (but keep this information confidential) with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of the positive COVID-19 test.

EQUAL EMPLOYMENT OPPORTUNITY

AB 331:  Known as the “Silenced No More” Act, this law provides that Settlement Agreements cannot contain provisions restricting employees from disclosing factual information related to a claim filed in a civil action or administrative action regarding: (1) Sexual assault; (2) Sexual harassment; and (3) Workplace harassment, discrimination, or retaliation based on any protected characteristic under California law.  Additionally, any agreement relating to an employee’s separation cannot include a provision prohibiting the disclosure of information about unlawful acts in the workplace.  Any provision (including non-disparagement clauses) that restricts an employee’s ability to disclose information related to conditions in the workplace shall include the following language: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”  Lastly, employers must notify employees in severance agreements that they have at least 5 business days to consider the agreement and that they have the right to consult an attorney regarding the agreement.

LEAVES

AB 1033: As of 2021, the California Family Rights Act (“CFRA”) was expanded to cover any employer with 5 or more employees.  Such employers are required to grant employees up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child of the employee or to care for themselves or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner.  Newly added categories of people for whom employees are entitled to take leave under AB 1033 are parents-in-law.  Such employers are also required to grant up to 12 workweeks of protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child or parent in the Armed Forces of the United States.

WAGE AND HOUR

Minimum Wage: The minimum wage in California is increasing to $15.00 per hour on January 1, 2022, for employers with 26 or more employees.  The minimum wage for employers with 25 or fewer employees will increase to $14.00 per hour on January 1, 2022.  This will also affect minimum salaries required for exempt employees ($62,400 for employers with more than 25 employees and $58,240 for employers with 25 employees or less).

AB 1003:  This new law increases the potential punishment to make it a felony if an employer acting “intentionally,” wrongfully fails to pay wages in an amount greater than $950 to one employee, or $2,350 in the aggregate to two or more employees, within a 12-month period. An employer acts “intentionally” when it deprives an employee of wages with knowledge that the wages are due.

SB 572:  This law gives The Labor Commissioner the authority to levy liens for citations. As a result, the Labor Commissioner can place a lien on real property to recover penalties owed for violations of the Labor Code.

ERICA M. SOROSKY esorosky@ptwww.com (949) 851-7271	ERIN K. OYAMA eoyama@ptwww.com (949) 851-7288