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:
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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.
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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.
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Employers must comply with virtually all provisions of the ETS within 30 days after publication. These provisions include:
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Establishing a vaccination policy;
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Determining the vaccination status of each employee and obtain proof;
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Requiring employees to notify you of a positive COVID-19 test or diagnosis;
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Excluding COVID-19 positive employees from the workplace;
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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?
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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.
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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.
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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.
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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.
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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:
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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.
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The definition of “family members” has been expanded when it comes to determining who qualifying employees can leave work to provide care for.
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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
10.12.21
What are wage and hour claims?
FLC - Wage & Hour
The term “wage and hour claims” can be confusing, seeing as it covers such a wide array of violations. To help California employers gain a better understanding of wage and hour law, Fishman, Larsen & Callister has put together this concise overview on the topic.
The Fair Labor Standards Act (and Its Impact on Wage & Hour Claims)
First, let’s address what the Fair Labor Standards Act (FLSA) even is and how it lays the foundation for all wage and hour claims throughout the United States. Whether your company is public or private, the primary federal wage and hour restrictions it faces are dictated by FLSA. Enforcement of FLSA is left in the hands of the Department of Labor’s Wage and Hour Division (WHD). However, most states (including California) have their own departments of labor as well. This is the entity that enforces the state’s wage and hour laws.
For any employer to be fully compliant with wage and hour regulations, they will need to adhere to federal, state, or local laws. If any of these are violated, it is possible that the employer will have a wage and hour claim rightfully leveled against them. They may even face litigation.
How Can Employers Avoid Receiving Wage and Hour Claims?
To minimize their chances of being faced with a wage and hour claim, there are some key pieces of information employers will need to be familiar with.
For instance, they will need to understand what time, specifically, is compensable. They will also need to have a clear understanding of how to accurately calculate overtime pay. In fact, one of the most common types of wage and hour claims involves being unreasonably compensated for overtime work. Although this is sometimes a deliberate act on the part of the employer, other times, it is a negligent error.
Further, employers will need to have a developed understanding of how to classify their employees. Another common form of wage and hour claim occurs when an employee is misclassified — for instance, a standard employee could be falsely classified as an independent contractor. This misclassification will have a significant impact on the wages they receive, the taxes they face, and the amount of break time they’re legally required to receive.
More specifically, the employer will need to know the difference between an exempt and a non-exempt employee and be able to classify everyone accurately. They will also need to accurately distinguish between trainees, interns, and volunteers.
Finally, for employers to successfully avoid wage and hour claims, they will need to abide by child labor laws.
What Are the Most Common FLSA Violations?
As we mentioned at the start, wage and hour claims come in many forms. There are, however, some iterations that are more common. Some of the most common FLSA violations are as follows:
Failing to Receive Required Rest or Meal Breaks
If a worker isn’t receiving their required allotment of rest and meal breaks, then they have the right to enact a wage and hour claim. Additionally, if that individual isn’t being paid appropriately for their break time, this is another reason for a claim. If an employee is made to work during their break time, they also reserve the right to be compensated for lost wages.
Compensatory Time
On occasion, an employer might offer an employee compensatory time off at a later date rather than providing them with necessary overtime pay. Although this might seem like a fair exchange, it is actually a direct violation of wage and hour laws. If this occurs, the worker could take their employer to court for lost overtime wages.
Unpaid Lectures, Meetings, and Training
It isn’t uncommon for employees to face required lectures, meetings, training, or similar events. In each of these instances, it’s necessary for the employer to pay their worker for attending these meetings or events. If they aren’t appropriately paid, this is a violation of FLSA and could result in a wage and hour claim.
Unpaid Work-Related Travel
If an employee is required to travel for work, they will need to be paid appropriately for their time. Whenever an employer fails to pay their employee for any work-related travel, they are violating FLSA.
Minimum Wage Violations
Another common cause of wage and hour claims occurs when an employer fails to pay their workers minimum wage. Firstly, keep in mind that the federal minimum wage is currently set at $7.25 — however, many states have a minimum wage that is higher than this amount, and that higher amount is what employers in that state must adhere to. Further, the state minimum wages in several locations are incrementally increasing over time.
For instance, in California, the current minimum wage for employers with more than 26 employees is $13 an hour. For employers with fewer than 26 employees, on the other hand, the minimum wage is $12. This has been the case since 2020, although between 2019 and 2020, each of these numbers was exactly one dollar less. As time goes on, the minimum wage in CA is increasing — this also means that the standard for minimum wage violations is changing as well.
Underpaid or Unpaid Overtime
Finally, a common cause of wage and hour claims is due to underpaid or unpaid overtime work. This is relatively straightforward; if an employee isn’t appropriately compensated for the overtime work they perform, then they are permitted to sue their employer for a wage and hour violation. FLSA states that if a non-exempt employee is working more than forty hours in one week, then the hourly wage they receive beyond that point should be 1.5 times greater than their standard hourly wage. If there’s a miscalculation error, or if an employer simply isn’t compensating their employee for overtime work, this is a clear FLSA violation.
Protect Your CA Business Against Wage and Hour Claims With Fishman, Larsen & Callister.
For your California wage and hour defense to succeed, it’s essential that you work with an experienced attorney. To get in contact with the skilled legal team at Fishman, Larsen & Callister, be sure to fill out the form on our website and schedule a consultation.
Doug Larsen
Fishman, Larsen & Callister
559.256.5000
Larsen@flclaw.net
09.27.21
UPDATE COVID-19 Sick Leave Payable Into October
COVID-19
In an HR Headliner published on September 23, we let you know that federal and state COVID-19 paid sick leave was set to expire on September 30, 2021.
Employers with 26 or more employees should note that under California law, if an employee’s qualifying absence for COVID-19 reasons begins on or before September 30, the employee must be allowed to continue the leave and receive supplemental paid sick leave benefits for up to 10 days. However, the amounts paid from October 1 forward are not eligible for payroll tax deduction.
Please contact one of our Consultants if you have questions regarding the timing of an employee’s COVID-related leave, and how to apply sick leave benefits.
