HR News

11.18.21

COVID-19 Update: OSHA’s Vaccine Mandate Blocked by a U.S. Court of Appeals

COVID-19
On November 4th, we let you know that the Occupational Safety and Health Administration (OSHA) filed a proposed rule requiring employers of 100 or more to ensure that their employees were either vaccinated against COVID-19 or tested weekly for the virus.
The very next day, petitions were filed by individuals, corporations, and States requesting that the rule be struck down. On November 12, 2021, the Fifth Circuit Court of Appeals issued an order staying the implementation of OSHA’s emergency temporary standard (ETS) pending judicial review to determine if a permanent injunction is appropriate. Below is a summary of the Appeals Court’s ruling:
The written decision begins by quoting OSHA’s own statement from June 2020 that an ETS was “not necessary” to “protect working people from occupational exposure to infectious disease, including COVID-19,” and points out that the Mandate does not attempt to explain why the federal government was previously outspoken against vaccine mandates, but now considers them to be an emergency necessity. President Biden is quoted from December 2020 as saying, “No, I don’t think vaccines should be mandatory.” The Court noted that OSHA was not created to enact “sweeping pronouncements on matters of public health” and the Mandate “likely exceeds the federal government’s authority under the Commerce Clause.”
Even if the Mandate were found to be constitutional, the Court recognized several significant flaws in OSHA’s requirements. The Court described the Mandate as a “one-size-fits-all sledgehammer that makes hardly any attempt to account for difference in workplaces and workers.” The ETS makes no distinction in the risks facing “a security guard on a lonely night shift” and a “meatpacker working shoulder to shoulder in a cramped warehouse.” Describing the requirements as both “staggeringly overbroad” and “underinclusive,” the Court points out that COVID-19 poses relatively little risk to the majority of Americans, but that under this rule, “the most vulnerable worker in America draws no protection from the Mandate if his company employs 99 workers or fewer.” “The underinclusive nature of the Mandate implies that the Mandate’s true purpose is not to enhance workplace safety, but instead to ramp up vaccine uptake by any means necessary.”  
So, what do we do now? Because the ETS cannot be enforced at this time, the December and January deadlines for employees’ COVID vaccinations are no longer in effect. (Other vaccine requirements, such as those for health care workers and federal contractors still remain in place.)
There are a variety of federal petitions on this topic still to be reviewed, and California’s own Cal/OSHA regulation is set to be published in the near future. Smart, reasonable COVID safety measures such as knowing your staff’s vaccination status, monitoring for symptoms, and maintaining good workplace cleaning and hygiene will continue to be best-practices regardless of how the government tries to work through these complex issues.
As always, we’re here to help you navigate the ever-changing landscape of COVID-19 precautions. Stay tuned for more information, and contact one of our Consultants with any questions you have.

11.05.21

COVID-19 Update: OSHA Releases Proposed Vaccine Mandate

COVID-19
COVID-19 Update
OSHA Releases Proposed Vaccine Mandate
As directed by President Biden, on November 4, 2021, the Occupational Safety and Health Administration (OSHA) filed a proposed rule covering employers of 100 or more. The 490-page (!) rule and preamble contain a new Emergency Temporary Standard (ETS) with regulations for face coverings, testing, vaccine mandates, and more. These regulations are summarized for easier reading here.
California employers should note that our state-approved plan (Cal/OSHA) may adopt the federal standard or implement its own regulations that go beyond federal requirements. The state has 30 days to respond, so we will be watching carefully for any new information. In the meantime, employers should understand OSHA’s proposal, and Sierra HR Partners has the highlights:
Covered Employees
While all organizations with 100 or more employees are covered (except federal contractors and healthcare providers already covered by separate regulations), individual employees are not subject to these rules if they:
  • Do not report to a workplace where other individuals are present.
  • Work from home.
  • Work exclusively outdoors.
Vaccination Mandates, Verification, and Paid Time Off
Employers must verify the vaccination status of each of their employees. This won’t be new for California employers, who have been required to verify vaccination status under the revised Cal/OSHA ETS we received in June 2021. Under this federal ETS, though, covered employers cannot simply accept the employee’s attestation – we must request official documentation such as the vaccine card or a copy of medical records, and retain the information in employees’ medical files.
The ETS does allow employees to attest to their vaccination status in a statement only if they are “unable to produce acceptable proof.” That said, all vaccinations in California are recorded by the state and available within minutes at https://myvaccinerecord.cdph.ca.gov/, so it’s unlikely that any California employee will be without the kind of record required.
OSHA requires that employers provide paid time off (up to 4 hours) for employees to receive each vaccination dose and “reasonable” paid sick leave to recover from the side effects of being vaccinated. This paid benefit is in addition to existing company-provided sick leave, and is not tax-deductible.
Mandate Exceptions and Testing
Like other mandates we’ve seen, OSHA allows exceptions for medical conditions and religious objections. Those who are not fully vaccinated must test weekly. Any FDA-approved test may be used, including over-the-counter (OTC) tests, but regulations state that these tests cannot be “both self-administered and self-read unless observed by the employer or an authorized telehealth proctor.” To the degree that employees utilize OTC tests, they’ll need assistance from a third-party for the tests to be legitimate.
Other Safety Measures
Additional measures included in the ETS will be familiar to California employers. Employees who are not fully vaccinated must wear face coverings when indoors or when riding in vehicles with others. Employees may remove masks only when alone in a room, when eating or drinking, or when wearing a face covering creates a safety hazard.
Employers must also provide specific information to employees. This includes:
1. Policies and procedures that comply with the ETS.
2. Information published by the CDC about vaccine safety and efficacy
3. Information about retaliation and discrimination protections.
4. Information about criminal penalties associated with knowingly supplying false statements or documentation (such as a fake vaccine card).
As stated above, we’ll be watching for Cal/OSHA’s response to the federal ETS, as well as any legal challenges that may be brought against either regulation. While we wait for final requirements, it is important for employers to determine employees’ vaccine status if you have not already done so. Stay tuned for more information, and contact one of our Consultants with any questions you have.

 


11.04.21

Federal OSHA Vaccine Mandate for Large Employers

COVID-19
Federal OSHA Vaccine Mandate for Large Employers
On November 4, 2021, federal OSHA announced a new Emergency Temporary Standard on Vaccination and Testing for employers with at least 100 employees.  The ETS requires the following:
  1. Covered employers to require a mandatory vaccination policy unless the unvaccinated employees are required to submit to weekly testing and to wear an appropriate facemask at work.
  1. Covered employers must provide paid time off for workers to obtain a COVID-19 vaccination as well as paid sick leave to recover from side effects that prevent vaccinated persons from working.
  1. Employers must comply with virtually all provisions of the ETS within 30 days after publication. These provisions include:
  1. Establishing a vaccination policy;
  2. Determining the vaccination status of each employee and obtain proof;
  3. Requiring employees to notify you of a positive COVID-19 test or diagnosis;
  4. Excluding COVID-19 positive employees from the workplace;
  5. Requiring employees not fully vaccinated to where face coverings indoors.
California maintains a federally approved state safety and health plan.  As such, it must adopt standards at least as effective as the federal OSHA standards.  Cal/OSHA recently posted this on its FAQ page:
Q: If federal OSHA adopts a standard obligating employers with 100 or more employees to require COVID-19 vaccines or weekly testing, what will happen in California?
A: California maintains an occupational safety and health plan that is approved and monitored by federal OSHA. As a “state plan state,” California is required to adopt occupational safety and health standards “at least as effective” as federal OSHA’s, in accordance with Section 18 of the federal Occupational Safety and Health Act of 1970 (29 USC § 667(c)(2)).
If federal OSHA adopts a standard obligating employers with 100 or more employees to require either vaccines or weekly testing for employees, the State will have 30 days after the date of promulgation of the federal standard to adopt a comparable standard.
Larger California employers can expect a similar requirement.  California may attempt to implement a mandate among smaller employers as well.
We recommend that employers immediately conduct a survey to determine the vaccination standards of employees.  This will give you the ability to quickly respond to any possible changes in the Cal/OSHA ETS.

10.19.21

HR Headliner October 2021: Are You Being Impacted By “The Great Resignation?”

HR Headliner

In April 2021, the number of U.S. workers who voluntarily quit their jobs in a single month broke an all-time nationwide record, a development referred to as the “Great Resignation” by economists and business writers. Four million people quit in July, and the Department of Labor reported that another 4.3 million people had left their jobs in August. The majority of recent resignations have been in food service, retail, and health care… and if you’ve tried to shop or grab a bite to eat recently, you’ve probably experienced the impact of the staffing shortage first-hand.

What is causing so many people to leave their jobs?

One very reasonable explanation is that people were less likely to leave employers during the uncertainty caused by COVID-19 throughout 2020. Now that the pandemic seems to be subsiding, we’re seeing more than a year’s worth of pent-up resignations happening in a short time period.

Another possible reason is the new craving for flexibility in work schedules and locations caused by the COVID lockdowns. Many people now place increased value on work-life balance, want to avoid commute times, and believe they can be just as effective working from a home office as they can in person. According to a 2021 study by Citrix, 88% of knowledge workers say they will look for complete flexibility in hours and location when searching for a new position. 76% believe that employees will be more likely to prioritize lifestyle interests when pursuing a job, even if it means taking a pay cut.

Other people may be taking advantage of government pandemic relief such as stimulus checks and rent moratoriums. With a somewhat-eased financial burden, they can afford to leave high-pressure jobs and leverage the labor shortage to find better wages and other perks.

How can employers respond to the Great Resignation?

  • First, gather information about who may be leaving your organization, and why. Exit interviews can shed light on employees’ decision making, and help you develop a more effective response.

    Take time to talk with employees who have been working hard throughout the pandemic to proactively identify potential burnout. It’s been an incredibly trying year for most of us, and listening to their concerns could provide opportunities to address issues before they lead to resignations.

  • Show appreciation for those who keep showing up. Staffing shortages are annoying for customers, but can be painfully demanding on those left to pick up the slack. Let them know their efforts are valued, and find ways to boost morale whenever possible.

  • Consider your company’s approach to flexible remote work. The reality is that COVID has caused a shift in what we previously thought possible, and allowing for hybrid schedules may be valuable in retaining great people.

  • With so many people leaving jobs, they’ll need a great new company to settle into. Make sure your compensation strategy and recruiting efforts are competitive, and use this as an opportunity to attract new talent.

  • Leave the door open to those who leave on good terms, and be willing to consider rehiring them if the grass wasn’t actually greener on the other side.

Experts foresee the pace of resignations continuing for some time. Smart managers can develop effective retention strategies and innovative recruitment programs to preserve, and even upgrade their teams. And of course, Sierra HR is here to help you through every step. Contact our Consultants for support with employee relations, recruiting, and any of your other HR needs.

 


10.13.21

What Employers Are Subject to CFRA?

FLC- CA LAW

What Employers Are Subject to CFRA?

As of the start of 2021, the California Family Rights Act (CFRA) was expanded. This was a significant expansion of the act, and most employers in California were impacted by it in some way. However, are you unclear whether your business or organization is subject to CFRA, especially following the recent expansion? Here is a brief guide to the CFRA, including what it actually entails and how to know if you’re subject to its regulations. By adhering to these new guidelines, you can ensure that your organization doesn’t face employment litigation.

The Expansion of CFRA

On September 17th, 2020, CA Governor Gavin Newsom signed into law the expansion of CFRA under SB-1383. This key amendment then went into law on January 1st, 2021.
Back when the CFRA was first created, it was actually modeled after the federal government’s Family and Medical Leave Act, or FMLA. Even so, there have always been some fairly significant differences between the two acts. The recent amendment of CFRA, however, has only made those differences more prominent than ever.

The Most Notable Changes to CFRA, Post-Expansion

Although the amendment to CFRA has resulted in a number of changes, here are some of the most widespread, which many employers will need to remain aware of:

  • Before the expansion, CFRA coverage only applied to private organizations with over 50 employees; however, after the expansion, any employer with more than five employees will be impacted by the CFRA.
  • The definition of “family members” has been expanded when it comes to determining who qualifying employees can leave work to provide care for.
  • Those with family members currently involved in active military duty will now be provided required leave from work; this has always been included in the FMLA; however, it was previously left out of the CFRA.

Here is a complete list of the CFRA changes that were put in place at the start of 2021:

1. Coverage Has Been Expanded to Small Employers

In the past, the only employers that were impacted by CFRA had a minimum of fifty employees (within 75 miles of the organization’s worksite) if they were private employers. For public companies or organizations, they were always affected by CFRA coverage.
Due to the amendment to CFRA, private employers now only need a minimum of five employees to be covered by the act. It is also no longer required that any employees work within 75 miles of the worksite.

This means that the majority of California employers will now be impacted by the CFRA. Many employers who weren’t previously impacted by family and medical leave laws will now have these laws applied to them.

2. The Definition of “Family Member” Has Been Expanded

Prior to the amendment being put in place, the CFRA stated that qualified employees must have been permitted to take unpaid leave if they needed to care for a family member with a serious illness or health condition. In the past, however, “family member” was only used to describe a parent, spouse, or minor child.

Now, “family member” has been expanded to include grandparents, grandchildren, siblings, adult children, and domestic partners. As a result, the number of individuals who qualify for this form of unpaid leave has risen.

3. If an Employer Employs Both Parents, They Must Both Be Granted Full Leave

Before the CFRA was expanded, if both parents of a child were employed by the same entity, their employer was permitted to limit the total amount of leave those parents could take. This time was required to total at least twelve collective weeks.

Now, separate CFRA leave must be granted to both parents, even if they are employed by the same employer. This leave can occur at the same time, although if the parents desire, it can also occur back-to-back. Alongside this change, California’s New Parent Leave Act (NPLA) has been repealed, as it is now redundant.

4. Leave Entitlement Due to Active Military Duty

Although the FMLA already required that workers with family members in active duty (or call to active duty) be given protected leave, this wasn’t previously covered by the CFRA. More specifically, if an employee’s domestic partner, spouse, parent, or child entered active duty for the Armed Forces of the United States, that employee would not receive protected leave by the CFRA. However, CFRA now grants this form of protected leave to all applicable California employees.

5. The Elimination of the 10% Exemption Option

Prior to the expansion of the CFRA, CA employers were legally permitted to exempt earners in the top 10% of the organization from receiving CFRA leave, assuming that granting this leave would cause substantial economic damage to their employer. This exemption is no longer in place since the expansion of the CFRA — even the highest-earning employees must be given CFRA leave.

6. Changes to the Concurrent Use of the CFRA and FMLA

In the past, if an employee qualified for leave under both the CFRA and FMLA, their employer reserved the right to require them to use this time concurrently. Thus, the qualifying employee would only have been permitted twelve weeks of unpaid leave, even if they qualified under both laws.

In many instances, due to the amendment of the CFRA, the two laws will no longer function in sync with one another. It is now possible for employees to qualify for an additional twelve weeks of leave under the FMLA, assuming that they are receiving that leave for a different reason.

7. Leave for Pregnancy Disability

If an individual had to take pregnancy disability leave, they would have previously qualified under the FMLA, but not under the CFRA. However, under the CFRA, employees are now permitted a maximum of four months’ leave for pregnancy disability.

Are you looking for more guidance on these key changes to the CFRA as an employer? Or has an employee recently accused you of violating their rights because of a failure to adhere to the CFRA guidelines? In any of these cases, you could greatly benefit from consulting with knowledgeable CA employment attorneys. To schedule a consultation with Fishman, Larsen & Callister, simply fill out the contact form on our website, or give our office a call using the number listed on our contact page.

Doug Larsen

Fishman, Larsen & Callister

559.256.5000

Larsen@flclaw.net

 


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