Category: COVID

We continue our survey of new employment laws with those specific to COVID-19. Cal/OSHA’s power to shut down worksites with an imminent hazard of contracting COVID-19 has been extended through 2023. The required notice for such closures may be posted where other regulatory workplace notices are posted and must be posted in any employee online portal if also used to post regulatory workplace notices.

Cal/OSHA has issued four COVID-19 Emergency Temporary Standards that will now be transitioned into the new Permanent Standard for COVID-19. Although many prior requirements will still be in place, the Permanent Standard does not require employers to pay employees excluded from work due to COVID-19 exposure or to provide COVID-19 testing for employees for possible exposure from outside the working environment. The Permanent Standard expands the definition of “close contact” to generally be the sharing of indoor airspace for a cumulative total of at least 15 minutes during a 24-hour period, regardless of masking. The Permanent Standard do require that “Respirators” (such as N-95 masks) be provided to all employees who are working indoors or in vehicles with more than one person upon request. The Permanent Standard also requires COVID-19 training for all employees without describing what the contemplated training will consist of.

California extended the worker’s compensation presumption that a COVID-19 case is contracted in the course of the employment to January 1, 2024. This presumption also now includes most firefighters employed by the state of California.

If you have questions or concerns about how these news reports may affect you or your business, please contact The Burton Law Firm at: 916-822-8700 or email info@lawburton.com for a consultation.

A safe workplace requires more than a response to COVID-19, and as a recognition of this reality the California Legislature obliged with new laws attempting to provide safety from other threats. For example, nonemergency workers may flee the workplace or use their mobile phones for safety during an “emergency condition,” . The definition of an emergency does not include a reference to COVID 19, but it is otherwise expansive and includes a reasonable belief of an emergency condition.

There are now 14 categories of businesses that must post a notice designed to aid human trafficking victims. The newest category consists of beauty salons and similar businesses such as barber shops. In order to comply with the requirements, the notice must be prominently displayed in English, Spanish, and the third most widely spoken language in the county.

Cal/OSHA must now issue its citations, special orders, and actions in English and “the top seven non-English languages” in California, as well as Punjabi if not among these 7 languages. On receipt of a citation, special order, or action the recipient employer must post these citations, special orders, or actions in the workplace in all the required languages. 

As seen in a previous blog entry, an employer may not ask employees certain questions during the hiring process. In addition to salary history the list of prohibited questions has expanded to prohibit the mandatory disclosure of “reproductive health decision making” such as use of contraceptives.

Californian employees generally have the right to take medical leave to care for family members. An employee may now designate one individual not otherwise considered a family member to be considered as such for medical leave. Californian employees may also take up to 5 consecutive or nonconsecutive days as unpaid leave within 3 months of the death of a family member. 

Public hospital employees without a collective bargaining agreement are now entitled to rest and meal breaks over the course of the workday. The meal break consists of a 30-minute unpaid period for shifts over 5 hours and a second unpaid 30-minute meal period on shifts over 10 hours.  The rest time is 10-minutes per 4 hours or major fraction thereof. Violations are remedied through an extra hour’s pay to the employee for every day of violation.

If you have questions or concerns about how these news reports may affect you or your business, please contact The Burton Law Firm at: 916-822-8700 or email info@lawburton.com for a consultation.

With 70% of the California counties reporting, not enough outstanding votes remain to recall the sitting Governor, therefor solidifying that Gavin Newson has survived the 2021 Recall Election.

The currently tally of votes shows 5,840,283 votes against Governor Newson’s recall and 3,297,145 in favor. Republican challenger Larry Elder received 2,373,551 votes, or 46.9% votes over all to be the next governor.

This is California’s 179^th attempted political recall since 1913 (source).

On September 9^th, 2021, President Biden announced incoming restrictions on non-vaccinated individuals in the workplace. Private employers with 100 or more employees must require their workers to be either be: (i) fully vaccinated or (ii) have them obtain weekly COVID-19 tests confirming they are not live carriers of the virus. Employers must take note: Businesses will also be required to provide paid leave for employees to become vaccinated.

Referred to as the “Covid-19 Mandate,” this requirement has yet to be officially implemented and officials are awaiting the Executive Order as well as the new Emergency Temporary Standard by the Occupational Safety and Health Administration, which will develop mechanisms for implementation. It is anticipated that there will be various lawsuits challenging the Executive Order, the fate of which is unknown. In theory, legal precedent advises that the Covid-19 Mandate will be held constitutional [i.e., Jacobson v. Massachusetts 197 U.S. 11 (1905)]. However, as has been seen with the Supreme Court’s decision ending the CDC’s eviction moratorium, and the Court’s refusal to block the recent controversial Texas law, the current Supreme Court is anything but predictable; and it could potentially strike down the Covid-19 Mandate based on the Tenth Amendment to the Constitution (State Sovereign Immunity). This blog will be updated as details emerge.

For more details, contact Burton Law Firm at: 916.822.8700 or info@lawburton.com or, see details at: https://www.whitehouse.gov/covidplan/.

In a 6-3 decision on party lines, Alabama Assn. of Realtors v. Department of Health and Human Servs., the Supreme Court struck down President Biden’s COVID-19 eviction ban. This decision was unexpected as the Court’s upheld the ban placed by the prior administration which expired last July. The Order was unsigned (“Per Curiam”). Although the lack of a signature does not affect the enforceability of the Order, it is an unusual circumstance seemingly acknowledging the controversial nature of the ruling.

Historically, the Court is relatively flexible toward responses to public emergencies. However, the conservative majority rued such flexibility was no longer warranted. Specifically, that “[v]accine and rental-assistance distribution had improved since the stay was entered, while the harm to landlords had continued to increase.” [Alabama Assn. of Realtors, 584 U.S. at 4-5)].  The dissent countered with statistics, warning that this ruling risks the reemergence of COVID-19 mutations as 92% of U.S. counties have “substantial” and “high” levels of coronavirus transmission with national “average new daily hospital admissions at 12,209.” [Id at 14].

The majority opinion ultimately voided the moratorium under the doctrine of separation of powers, arguing that the 1944 law that delegated power to the CDC is far narrower than what the current administration maintains. Simply put, the Court ruled that the Executive branch did not have legal authority to ban evictions, and that Congress, and Congress alone, could authorize this ban.

As such, please be advised that the ban on evictions is unconstitutional due to its origin not its substance. Should Congress pass a law identical to the CDC’s moratorium, a ban on evictions would most likely be held constitutional.

The full ruling can be read HERE.

On August 10^th, 2021, with 68 yes votes vs. 29 no votes, the United States Senate passed the INVEST in America Act (H.R. 3684), a $1 trillion infrastructure revamp that has been a signature component of President Biden’s economic agenda. The bill constitutes a significant victory for the Biden Administration and received bipartisan support in its passing by the Senate.

More than half of the funds will go specifically to improvements in transportation, broadband telecommunications infrastructure, and public utilities. The bill also includes funding designated to combat climate change in the form of “publicly accessible electric vehicle charging infrastructure, hydrogen fueling infrastructure, propane fueling infrastructure, and natural gas fueling infrastructure[.]” Specifically, the bill approves spending on the following:

• $11 billion for road safety;
• $15 billion on alternative fuel based vehicle infrastructure;
• $17 billion toward port improvements;
• $17 billion toward airports;
• $21 billion on environmental reclamation;
• $39 billion for public transit revitalization;
• $66 billion to expand passenger rail lines;
• $50 billion for flood and other natural disaster protection;
• $55 billion in clean water distribution;
• $65 billion in broadband infrastructure;
• $73 in clean energy conversion; and
• $110 billion for roads and bridges.

Despite already having passed the House, the bill must return to the House to be reconciled with the Senate’s version before it can be sent for President Biden’s signature. This is not expected to occur until September 20^th, but it is expected to pass the House again and then proceed to the President’s desk to be signed into law.

The full bill can be read here. For more information, please contact the Burton Law Firm or your local congressperson.

On July 29, the Sacramento County Health Office issued  a Health Order, effective July 30, requiring masks to be worn indoors in public settings. This order comes because of an almost 300% rise in the number of hospitalizations for COVID-19 in the last month since the statewide restrictions were lifted. According to the order, 64.8% of positive COVID-19 tests in Sacramento County were found to be the Delta variant that is currently causing surges in COVID-19 cases all over the world. This order also references the recent CDC and California Department of Public Health recommendations to wear face coverings in indoor public settings, elevating the recommendations to a mandate.

The order requires:

• Masks to be worn in all indoor public venues, regardless of one’s vaccination status.
• Businesses to require face coverings indoors, and to post visible signage at all entry points to indoor settings stating the mask requirements.
• All attendees of “Indoor Mega-Events” (gatherings of 5,000 or more attendees) to wear face coverings.
• All attendees of “Outdoor Mega-Events” (gatherings of 10,000 or more attendees) to wear face coverings.

The entire order can be read on the Sacramento County Website linked here. Sacramento County Order of the Health Officer – 07-29-2021.pdf (saccounty.net)

On April 28, 2021, President Biden unveiled the American Families Plan. This plan, if adopted in its entirety, would make significant changes to childcare, education, family and medical leave, and tax credits for low-income households. Many of the programs that it would expand would be funded via higher taxes on high income households[1], as well as increased enforcement of current tax policies via additional funding to the IRS. The White House says additional IRS funding would “go toward enforcement against those with the highest incomes. . . . Additional resources would focus on large corporations, businesses, and estates, and higher-income individuals.”[2] This plan will also limit 1031 like-kind exchanges above $500,000 in deferred capital gains, end the preferred treatment of carried interest, and make the 2017 tax law’s limitation on excess losses that applies to non-corporate income permanent.

The American Families Plan will focus on providing the following benefits:

• Childcare, in the form of universal prekindergarten for children 3 and 4 years old.
• Strengthening education by providing better training for teachers, and by providing 2 years of free community college following high school.
• Decreasing food insecurity of children, by providing free meals for children in high-poverty school districts, and by expanding access to summer EBT (Electronic Benefits Transfer) programs—programs that provide increased access to SNAP (Supplemental Nutrition Assistance Program) benefits.
• Reforming unemployment insurance, by putting money towards “unemployment insurance system modernization, equitable access, and fraud prevention”[3]
• Creating a national paid family and medical leave program.
• Granting a variety of tax credits to low-income households with children.

This legislation comes as the third installment of Biden’s “Build Back Better” plan. Build Back Better consists of a series of legislation started with the American Rescue Plan that he has claimed is intended to help many Americans who have been impacted negatively by the pandemic as well as assist people who were struggling even before COVID-19 was a factor. It is still early to say if it will pass or not but the American Families Plan indicates what Biden hopes to accomplish during his time as President.

[1] Raise of the top marginal income tax from 37% to 39.5% (applies to incomes over $425,700 for single filers and $509,300 for joint filers). Taxing long term capital gains and qualified dividends as ordinary income for taxpayers with taxable income over $1 million. Taxing unrealized gains at death for unrealized gains above $1 million for single filers and 42 million for joint filers. Apply a 3.8% net investment income tax (NIIT) to active pass-through business income above $400,000. Pass-through businesses include partnerships, sole proprietorships, and S corporations.

[2] The White House Briefing Room Statements: “Fact Sheet: The American Families Plan” 4/28/2021

[3] The White House Briefing Room Statements: “Fact Sheet: The American Families Plan” 4/28/2021

On June 15^th, OSHA released new guidance for employers that brings them in line with the recent CDC guidance released on May 28^th. This guidance allows vaccinated workers in all industries except the medical field to go back to work without wearing a mask, unless required by federal, state, local, tribal, or territorial laws, rules, and regulations.

For unvaccinated workers, OSHA still advises that masks be worn and social distancing be followed. In workplaces where all employees are fully vaccinated, most employers no longer need to take steps to protect workers from COVID-19 exposure. If there are unvaccinated employees in the workplace, steps do need to be taken to protect those employees. OSHA points to 11 mitigation measures that they advise employers to take:

1. Grant PTO for employees to be vaccinated.
   1. They also note that businesses with fewer than 500 employees may be eligible for tax credits based on PTO given to employees to get vaccinated.
2. Instruct any workers who are infected or unvaccinated workers who have had close contact with an infected individual to stay home from work.
3. Implement physical distancing for unvaccinated and at-risk employees in all communal areas.
4. Provide face coverings for unvaccinated and at-risk employees.
5. Educate and train workers on COVID-19 policies and procedures in languages they understand.
6. Suggest that unvaccinated customers, visitors, or guests wear face coverings.
7. Maintain Ventilation Systems.
8. Perform routine cleaning and disinfection.
9. Record and report COVID-19 infections and deaths.
10. Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19 related hazards.
11. Follow other applicable mandatory OSHA standards, including: respiratory protection, sanitation, protection from bloodborne pathogens, and OSHA requirements for employee access to medical and exposure records.

Some people will still choose to wear masks in the workplace, maybe to protect someone close to them, or maybe because it makes them feel comfortable. Regardless of the reason, it is important to respect the choices that others make regarding their safety.  This has been a trying time, and it is not always possible to know the circumstances that others are dealing with. Be kind and stay strong.

Although things are starting to return to normal as of June 15th (see blog post), loosened alcohol sales and consumption laws will remain in effect for the remainder of 2021.

The Department of Alcoholic Beverage Control provided various temporary allowances during COVID which included the ability to return purchased alcohol; allowances of off-sales purchases from on-sale retailers; purchasing “to-go” premixed alcoholic beverages; and acceptance of payment at delivery. In other words, it was easier for establishments to sell beer, wine, and pre-mixed cocktails/drinks for pick-up and delivery.

These loosened restrictions are expected to assist restaurants badly hurt by the pandemic, because they can continue to expand outdoor operations in areas such as sidewalks and parking lots, and can continue the sale of to-go alcoholic beverages with food deliveries.

Furthermore, if these allowances continue to be popular, the legislature has pondered keeping some of them permanent, which would be greatly endorsed by current restaurants and breweries.

For more details see the CA Press Release, or contact the Burton Law Firm at 916.822.8700.