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On August 31, 2021, the Occupational Safety and Health Administration (OSHA) tipped its hand that it will let the federal emergency temporary standard (ETS) expire in December 2021.

The long-awaited ETS went into effect on June 21, 2021. It requires covered healthcare and health support services employers to ensure specific policies and procedures are in place to identify and control COVID-19 hazards in the workplace.

Unless OSHA supersedes the ETS with a permanent infectious disease standard, the ETS can only remain in effect for six months. During a healthcare symposium, Deputy Director of OSHA’s Directorate of Standards and Guidance Andy Levinson told participants that a proposed permanent infectious disease standard would not be forthcoming this year or next. Levinson stated that it is not OSHA’s plan at this time to extend the ETS.

Still, healthcare employers should not let their guard down. The surge in COVID-19 cases due to the transmissibility of the delta variant and breakthrough cases in vaccinated workers could cause OSHA to reconsider extending the ETS. In the past, OSHA has successfully extended an emergency temporary standard without notice-and-comment. Given that labor unions consistently urge OSHA to make the ETS permanent and expand its coverage to non-healthcare industry employers, the December sunset is uncertain.

Even if the ETS expires as of December 21, 2021, meaning, there will be no specific standard for OSHA to enforce, all employers should be mindful that the Biden Administration favors aggressive enforcement. Recently, OSHA stated that its COVID-19 guidance to non-healthcare employers is not a standard or regulation, and that it creates no new legal obligations. Despite this, employers should keep in mind that, during the Biden Administration, OSHA has more than tripled its use of the General Duty Clause of the Occupational Safety and Health Act to cite employers for COVID-19 hazards not covered by an existing standard, such as those that govern respiratory protection, personal protective equipment, and sanitation. As always, employers should remain cognizant of different requirements under state OSHA plans.

Levinson also confirmed that OSHA plans to engage in rulemaking for a permanent infectious disease standard in 2022. This standard will cover all infectious diseases that are not covered by OSHA’s blood-borne pathogens standard. Therefore, the standard would cover airborne, droplet, and non-blood-borne contact diseases. The standard likely will apply to a wide variety of occupational settings where employees are at an increased risk of exposure to potentially infectious people, such as healthcare, emergency response, correctional facilities, homeless shelters, and drug treatment programs, to name a few.

We will continue to provide further guidance regarding developing HR-related news. Should you have any questions, please contact our office at 916.444.6200, info@hrtogo.com, or your HR Consultant directly.

View original article here: https://www.jdsupra.com/legalnews/osha-s-covid-19-emergency-temporary-8080357/

HR Hot Topic – OSHA’s COVID-19 Emergency Temporary Standard To Expire December 2021

-Via The Department of Industrial Relations-

In addition to the requirements of the COVID-19 Prevention Emergency Temporary Standards (ETS) and as a best practice, Cal/OSHA encourages employers and workers to follow the recent update from the California Department of Public Health (CDPH) recommending that all individuals wear face coverings while indoors regardless of vaccination status.

CDPH recently updated its Guidance for the Use of Face Coverings to include that recommendation due to the recent increase of COVID-19 infections in the workplace. For more specifics on the recent updates from CDPH, please refer to their fact sheet When Do You Need Your Mask in California? 

Employers should ensure that any employee who requests a face covering at work is provided one, as required by the ETS.

 We will continue to provide further guidance regarding developing HR-related news. Should you have any questions, please contact our office at 916.444.6200, info@hrtogo.com, or your HR Consultant directly.

View original article here: https://www.dir.ca.gov/DIRNews/2021/2021-86.html

HR Hot Topic – Cal/OSHA Encourages Employers and Workers to Follow Updated CDPH Guidance Recommending Face Coverings Indoors

-Via The Department of Industrial Relations-

The Labor Commissioner’s Office has reached a $1.6 million settlement with the owners of Z & Y Restaurant in San Francisco, securing compensation for 22 workers for unpaid minimum wages, overtime, split shift premiums and tips identified in a wage theft investigation from 2019. Including expected post-settlement interest, each worker will receive on average approximately $73,000 under this settlement from payments that began today after the employer entered into an agreement with the Labor Commissioner’s Office.

“California law prohibits employers from taking tips left by customers for servers,” said California Labor Commissioner Lilia García-Brower. “Under this settlement, the employer will pay workers back all of those stolen tips totaling over $400,000.”

The Labor Commissioner’s Office learned of the potential violations in January 2019 after receiving a referral from the Chinese Progressive Association and Asian Americans Advancing Justice – Asian Law Caucus. The investigation found that 22 servers and kitchen workers were not paid properly. The servers were paid hourly and the kitchen staff were paid a fixed salary that was below minimum wage and did not include overtime. The employer illegally kept tips left for the servers and did not pay servers split shift premiums when they were scheduled to work both the lunch and dinner shifts.

In April 2020, the Labor Commissioner issued wage assessments and penalties totaling over $1.4 million to the owners of Z & Y Restaurant Inc. The employer appealed the citations. In September 2020, the Labor Commissioner filed a lawsuit to prosecute the restaurant owners for violations not covered by the citations, including the theft of tips, violations of California’s Paid Sick Leave law and record keeping violations. With the hearing on the citation appeal approaching, the employer reached a settlement with the Labor Commissioner that resolved the citations, the lawsuit, and pending wage claims that had been separately filed by four workers represented by the Asian Law Caucus.

Notification has been delivered to the current and former restaurant workers of their expected settlement payments and workers began receiving settlement payments with an average of approximately $73,000 per worker based on the number of hours worked during the audit period and the tips that were appropriated by the employer. The settlement also includes $9,550 in civil penalties payable to the state. 

“A significant amount of the payment due to workers in this case is from stolen tips,” added Labor Commissioner García-Brower. “Workers must be proactive to protect their rights. Keep track of the tips you think you should have received to help support your claim and when approaching your employer about this issue, document the conversation and have a witness.”

The action taken by the Labor Commissioner’s office should be a caution to all employers regarding the importance of compliance with wage and hour laws. We will continue to provide further guidance regarding developing HR-related news. Should you have any questions, please contact our office at 916.444.6200, info@hrtogo.com, or your HR Consultant directly.

View original article here: https://www.dir.ca.gov/DIRNews/2021/2021-83.html

HR Hot Topic – Labor Commissioner’s Office Reaches $1.6 Million Settlement Securing Unpaid Wages for 22 Bay Area Restaurant Workers

Businesses large and small continue to stumble over compliance with the most basic labor laws. Accurate timekeeping for hourly non-exempt employees is critical.

Maintaining records reflecting the start and end time of each day are paramount to tracking regular and overtime hours.
 
Failure to do so and compensate at the corresponding rate of pay can and will lead to fines and penalties as demonstrated in this recent finding by the U.S. Department of Labor.

We will continue to provide further guidance regarding developing HR-related news. Should you have any questions, please contact our office at 916.444.6200, info@hrtogo.com, or your HR Consultant directly.

Read more here: https://www.dol.gov/newsroom/releases/whd/whd20210805

HR Hot Topic – Kern Restaurant Chain Ordered to Pay $200K in Back Wages

On July 15, 2021, the California Supreme Court ruled in Ferra v. Loews Hollywood Hotel, LLC  that employers must pay meal and rest period premiums at the “regular rate” of pay. The regular rate of pay is defined as to include all forms of nondiscretionary compensation paid to non-exempt employees.

The Court held that the long-standing practice of  paying meal and rest period premiums at a base hourly or “straight time” rate is not consistent with the law.

Background

If an employer fails to provide an employee a meal or rest period in accordance with current California requirements, the employer must pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.   

“Regular rate of pay” is a legal term that is not necessarily equivalent to the employee’s base hourly pay. Depending upon the compensation paid to an employee in a particular workweek, it means the higher of:

(i) the employee’s base hourly rate of pay if the employee earns only one rate of pay in the workweek and receives no other nondiscretionary compensation;
(ii) the weighted average of the employee’s hourly rates of pay where more than one hourly pay rate is in effect during the workweek; or
(iii) the weighted average of the employee’s base hourly rate(s) of pay and any additional nondiscretionary compensation an employee earns in the workweek (e.g., commissions, bonuses, pay-in-lieu of benefits).

As a result, an employee who is paid nondiscretionary compensation in addition to an hourly base rate will have a higher regular rate of pay in a workweek in which the employee earns that additional compensation.

Court Finds That Employers Must Pay Break Premiums at the “Regular Rate” of Pay

In Ferra v. Loews Hollywood Hotel, LLC, The California Supreme Court held that “regular rate of pay” and “regular rate of compensation” are interchangeable and determined that premium wages be calculated in the same manner in which overtime is calculated.

Click here to view full opinion and decision

Implications

In deciding this matter, the Court rejected the argument that the decision should only apply going forward. Thus, like most judicial decisions, the ruling by the Court is “retroactive”.

Although the Court stated that there is no evidence that employers will be exposed to such liability, the decision certainly opens the door to future claims.

Immediate Action

Take steps to avoid such claims by reviewing your policies and practices of paying meal and rest break premiums. Seek legal remedies to minimize the risk of possible litigation in this area of wage and hour compliance if exposure exists.

Taking these steps can assist you in avoiding the time and expense of such claims. 

We will continue to provide further guidance regarding developing HR-related news. Should you have any questions, please contact our office at 916.444.6200, info@hrtogo.com, or your HR Consultant directly.

HR Hot Topic – Recent California Supreme Court Ruling Invalidates Long-Standing Employer Practice

-Via the Department of Industrial Relations-

Cal/OSHA is urging employers in California to be prepared to protect workers from unhealthy air due to wildfire smoke. When workers might be exposed to unhealthy air from wildfires, California’s protection from wildfire smoke standard requires employers to take steps such as changing the location of work operations, modifying work schedules or providing proper respiratory protection like N95 respirators. 

According to CalFire, there have been over 4,000 wildfire incidents so far in California in 2021 and more than 100 structures have been damaged. Smoke from these wildfires contains chemicals, gases and fine particles that can harm health. One of the most harmful hazards comes from breathing fine particles in the air (called PM2.5), which can reduce lung function, worsen asthma or other existing heart and lung conditions, and cause coughing, wheezing and difficulty breathing.

When wildfire smoke affects a worksite, employers must check the air quality index (AQI) for PM2.5 and throughout the work shift as needed to protect employees. Employers can monitor the AQI with their own devices or use websites like the U.S. EPA AirNow website or local air quality management district websites.

If the AQI for PM2.5 is 151 or greater, employers must take the following steps to protect employees:

  • Communication – Inform employees of the AQI for PM2.5 and the protective measures available to them.
  • Training and Instruction – Provide effective training and instruction to all employees on the information contained in section 5141.1 Appendix B.
  • Modifications – Implement modifications to the workplace, if feasible, to reduce exposure. Examples include providing enclosed structures or vehicles for employees to work in, where the air is filtered.
  • Changes – Implement practicable changes to work procedures or schedules. Examples include changing the location where employees work or reducing the amount of time they work outdoors or exposed to unfiltered outdoor air.
  • Respiratory protection – Provide proper respiratory protection equipment, such as disposable respirators, for voluntary use.
    • To filter out fine particles, respirators must be labeled N-95, N-99, N-100, R-95, P-95, P-99, or P-100, and must be labeled as approved by the US National Institute for Occupational Safety and Health (NIOSH).

If employers move operations indoors, they must follow Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards, which require unvaccinated workers to wear face coverings indoors.

To assist employers with identifying available supplies of respirators, Cal/OSHA is maintaining a list of vendors who have confirmed they have at least 100,000 NIOSH-certified disposable N95 respirators in stock and available for purchase and delivery.

If the AQI for PM2.5 exceeds 500 due to wildfire smoke, respirator use is required. Employers must ensure employees use respirators and implement a respiratory protection program as required in California’s respiratory standard. For information or help on developing a respiratory protection program, see Cal/OSHA’s Respiratory Protection Fact Sheet.

We will continue to provide further guidance regarding developing HR-related news. Should you have any questions, please contact our office at 916.444.6200, info@hrtogo.com, or your HR Consultant directly.

This information was obtained from the Department of Industrial Relations. View original source here: https://www.dir.ca.gov/DIRNews/2021/2021-74.html

HR Hot Topic – Cal/OSHA Urges Employers to Prepare to Protect Workers from Unhealthy Air due to Wildfire Smoke

-Via the Department of Industrial Relations-

Sacramento—Cal/OSHA is reminding all employers to protect outdoor workers from heat illness as excessive heat warnings have been issued throughout the state with high temperatures forecast through this Thursday. Employers in California must take steps to protect outdoor workers from heat illness by providing water, rest, shade and training.

Cal/OSHA’s heat illness prevention standard applies to all outdoor worksites. To prevent heat illness, the law requires employers to provide outdoor workers fresh water, access to shade at 80 degrees and whenever requested by a worker, cool-down rest breaks in addition to regular breaks and maintain a written prevention plan with training on the signs of heat illness and what to do in case of an emergency.

It is important for employers to assess the risk of heat illness based on a worker’s duties and take appropriate steps to prevent them from getting sick. Regardless of the level of risk, all outdoor workers must be protected equally and employers with outdoor workers must maintain an effective heat illness prevention plan year-round.

Employers with outdoor workers in all industries must follow these heat illness prevention requirements:

  • Plan – Develop and implement an effective written heat illness prevention plan that includes emergency response procedures.
  • Training – Train all employees and supervisors on heat illness prevention.
  • Water – Provide drinking water that is fresh, pure, suitably cool and free of charge so that each worker can drink at least 1 quart per hour, and encourage workers to do so.
  • Rest – Encourage workers to take a cool-down rest in the shade for at least five minutes when they feel the need to do so to protect themselves from overheating. Workers should not wait until they feel sick to cool down.
  • Shade – Provide proper shade when temperatures exceed 80 degrees. Workers have the right to request and be provided shade to cool off at any time.

We will continue to provide further guidance regarding developing COVID-related news. Should you have any questions, please contact our office at 916.444.6200, info@hrtogo.com, or your HR Consultant directly.

This information was obtained from the Department of Industrial Relations. View original source here: https://www.dir.ca.gov/DIRNews/2021/2021-65.html

HR Hot Topic – Cal/OSHA Reminds Employers to Protect Outdoor Workers from Heat Illness

Although California has its own state-level minimum wage, many localities have passed their own minimum ordinances — and employers must comply with the more restrictive requirement.

The following cities and counties will increase their current minimum wage rates as of July 1:

  • Berkeley: $16.32/hour.
  • Emeryville: $17.13.
  • Fremont: $15.25/hour for employers with 26 or more employees; $15.00/hour for employers with 25 or fewer employees.
  • *Los Angeles City: $15/hour for employers with 25 or fewer employees.
  • *Los Angeles County (unincorporated areas): $15/hour for employers with 25 or fewer employees.
  • *Malibu: $15/hour for employers with 25 or fewer employees.
  • Milpitas: $15.65/hour.
  • *Pasadena: $15/hour for employers with 25 or fewer employees.
  • San Francisco: $16.32/hour, and
  • *Santa Monica: $15/hour for employers with 25 or fewer employees.

NOTE: *The minimum wage rates for these localities will remain at $15/hour for employers with 26 or more employees, with a future increase effective July 1, 2022. The City of Alameda will also remain at its current $15/hour rate with a future increase on July 1, 2022.

We will continue to provide further guidance regarding developing HR-related news. Should you have any questions, please contact our office at 916.444.6200, info@hrtogo.com, or your HR Consultant directly.

Minimum Wage Ordinances & Increases as of July 1, 2021

-Via the Department of Industrial Relations-

Revisions Account for Rising Vaccination Rates, Offer Guidance to Help Businesses Reopen while Maintaining Strong Worker Protections

Revised Emergency Temporary Standards Effective June 17th, 2021

Sacramento—The Occupational Safety and Health Standards Board today adopted revisions to the COVID-19 Prevention Emergency Temporary Standards that account for recent guidance from the California Department of Public Health based on increases in the number of people vaccinated. Governor Gavin Newsom today signed an executive order enabling the revisions to take effect without the normal 10-day review period by the Office of Administrative Law—providing clarity and consistency for employers and employees as California fully reopens its economy. The revised standards took effect June 17th, 2021.

The revisions include the following:

  • Fully vaccinated employees do not need to be offered testing or excluded from work after close contact unless they have COVID-19 symptoms.
  • Fully vaccinated employees do not need to wear face coverings except for certain situations during outbreaks and in settings where CDPH requires all persons to wear them. Employers must document the vaccination status of fully vaccinated employees if they do not wear face coverings indoors.
  • Employees are not required to wear face coverings when outdoors regardless of vaccination status except for certain employees during outbreaks.
  • Employees are explicitly allowed to wear a face covering without fear of retaliation from employers.
  • Physical distancing requirements have been eliminated except where an employer determines there is a hazard and for certain employees during major outbreaks.
  • Employees who are not fully vaccinated may request respirators for voluntary use from their employers at no cost and without fear of retaliation from their employers.
  • Employees who are not fully vaccinated and exhibit COVID-19 symptoms must be offered testing by their employer.
  • Employer-provided housing and transportation are exempt from the regulations where all employees are fully vaccinated.
  • Employers must review the Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.
  • Employers must evaluate ventilation systems to maximize outdoor air and increase filtration efficiency, and evaluate the use of additional air cleaning systems.

We will continue to provide further guidance regarding developing COVID-related news. Should you have any questions, please contact our office at 916.444.6200, info@hrtogo.com, or your HR Consultant directly.

This information was obtained from the Department of Industrial Relations. View original source here: https://www.dir.ca.gov/DIRNews/2021/2021-62.html

HR Hot Topic – Board Votes To Adopt Revised COVID-19 Prevention Emergency Temporary Standards

The Cal/OSHA Standards Board has published the latest version of its COVID emergency standard, on which it will vote later this week. The big change: Fully vaccinated employees will not have to wear masks indoors if unvaccinated coworkers are among them.

The move comes after an outcry from employers that the agency was not following new national and state guidelines in light of declining COVID rates and in recognition of the reopening of the state. After an emergency meeting on June 9th, when the board rescinded the June 3rd version of the controversial standard, the Division of Occupational Safety and Health quickly published the new language.

The rulemaking body has appointed three of its members to work with the Division on further changes, and if COVID remains under control, the entire emergency standard could be rescinded.

The current (original) version of the standard will remain in effect until the Office of Administrative Law the new one. That version is expected to take effect by the 28th.

Gone from the new version is a reference to “outdoor mega events” (10,000 or more people), during which vaccinated and unvaccinated employees would have to be masked or physically distanced, as well as indoor operations.

Under the proposal, employers will be required to provide and enforce face masks for employees not fully vaccinated indoors or in vehicles. Even when the standard does not require masks, employers will be required to provide them to employees “upon request.”

Another revision that will likely please the restaurant business is removing a requirement that “cleanable solid partitions” be installed when physical distancing isn’t possible between employees and “other persons.”

All references to July 31st sunset provisions have been removed in the proposal.

DOSH recognizes the changed circumstances but warns that employees could still contract the virus.

“As reflected in the proposed emergency regulations, the use of effective vaccines has reduced the need for some of the protections put into place by the November 30th, 2020, emergency temporary standard,” DOSH says in its renewed emergency finding. “However, a serious hazard to employees still exists. A very large proportion of California employees remain unvaccinated as of the scheduled June 17th” Standards Board meeting. “Unvaccinated employees will therefore be particularly at risk, especially given the spread of especially contagious SARS-CoV-2 variants, unless protective measures are taken.”

We will continue to provide further guidance regarding developing COVID related news. Should you have any questions, please contact our office at 916.444.6200, info@hrtogo.com, or your HR Consultant directly.

This information was obtained from Cal/OSHA, published June 14th, 2021. Original source here: https://www.cal-osha.com/flash-report/cal-osha-to-mask-or-not-to-mask/

HR Hot Topic – On Behalf Of Cal/OSHA: To Mask Or Not To Mask

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