What Every Employer Needs to Know: Key 2021 Employment Laws

1. CALIFORNIA’S COVID-19 MANDATORY EMERGENCY TEMPORARY STANDARDS 

The California Division of Occupational Safety and Health (Cal/OSHA) unanimously passed new mandatory Emergency Temporary Standards (ETS) effective November 30, 2020. The ETS may be extended for up to 180 days.  

The ETS applies to all employers, employees and all places of employment with three exceptions: the ETS does not apply to (1) workplaces with only one employee who do not have contact with other people, (2) employees working from home, or (3) employees covered by the Aerosol Transmissible Diseases regulation. 

Since August 2020, Cal/OSHA received nearly 8,000 complaints regarding workplace safety and, as of September 4, 2020, cited eleven employers for failure to ensure that employees are maintaining proper physical distancing or not properly recording COVID-19 illnesses. Penalties for violation of the standards include monetary citations ranging from $2,025.00 to $51,190.00.  

California’s new ETS include:  

• Write, implement and communicate to employees a COVID-19 Prevention Program.

• Identify, evaluate and correct COVID-19 hazards.

• Provide training and instruction to employees of COVID-19 policies and procedures. 

• Require physical distancing of at least six feet where possible. 

• Require wearing face covers.

• Require frequent washing of hands with soap and water or hand sanitizer. 

• Implement engineering controls, administrative controls and personal protective equipment including installing solid partitions between work locations where it is not possible to physically distance, improve ventilation and maximize outdoor air, implement procedure for cleaning commonly touched surfaces and provide personal protective equipment (ex: gloves, eye protection, etc.) for employees exposed to hazards. 

• Investigate and respond to COVID-19 cases in the workplace. 

• Offer COVID-19 testing at no cost to employees when one or more employees had COVID-19 exposure at the workplace. 

• Offer free testing to all on-site employees potentially exposed to COVID-19 in the workplace. 

• In an “outbreak” during which three or more employees in an exposed workplace are diagnosed with COVID-19 within a 14-day period: Immediately provide testing to all employees in the workplace and repeat the testing one week later and continue testing employees weekly until the workplace no longer qualifies as an outbreak.  If 20 or more cases of COVID-19 in the workplace in 30 days: Offer free testing to employees twice a week. 

• In a “major outbreak” during which 20 or more employees in an exposed workplace are diagnosed with COVID-19 within a 30-day period: Provide testing to all employees at least twice a week until no new cases are detected for a 14-day period, implement ventilation changes including increasing filtration efficiency, evaluate whether HEPA air filtration units are required in poorly ventilated areas, determine need for respiratory protection program and consider halting all or part of operations to control the virus. 

• Exclude employees diagnosed with COVID-19 or who have had exposure to COVID-19 from returning to work onsite.  

• Employees with symptoms may return to the workplace after: At least 24 hours have passed since a fever of 100.4 or higher has resolved without fever reducing medications, COVID-19 symptoms have improved, and ten days have passed since COVID-19 symptoms first appeared.  

• Employees without symptoms may return to the workplace after 10 days have passed since their first COVID-19 positive test.

• Employees exposed to COVID-19 in the workplace

• Employees exposed to COVID-19 in the workplace may return to the workplace 14 days after last known COVID-19 exposure.

• Employees are not required to receive a negative test to return to work.  

• If the employee is able and available to work, the employer must continue to provide the employee’s pay and benefits. An employer may require the employee to exhaust paid sick leave benefits before providing exclusion pay and may offset payments by the amount an employee receives in other benefit payments. 

• Maintain records of all COVID-19 workplace policies and COVID-19 cases.

• Report information about COVID-19 at the workplace to Cal/OSHA and the local health department as required by law. 

Best Practices Tip: Before employers dismiss these standards as a slap on the wrist, beware that violations of these standards may lead to reporting by an employee. If the employee thereafter is terminated, the employee can arguably claim he/she was wrongfully terminated in retaliation for whistleblowing.  

2. PROPOSITION 22 EXEMPTS APP-BASED DRIVERS FROM AB 5 REQUIREMENTS

California’s AB 5 law went into effect on January 1, 2020 and presumed that all hired workers are employees unless the hiring entity can prove that the worker: A) is free from the control or discretion of the hiring entity in connection with performance of the work, B) performs work that is outside the usual course of the hiring entity’s business and C) is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity (the “ABC” test). 

As a result, California’s AB 5 law presumed that all ride hailing, food delivery and other app-based workers are not classified as independent contractors – rather, they were classified as employees entitled to benefits such as health insurance, minimum wage, etc. 

In People v. Uber Technologies, Inc., the State of California sued Uber and Lyft for not complying with AB 5. On August 10, 2020, a California judge ordered that Uber and Lyft classify their workers as employees. On October 22, 2020, the California Court of Appeals upheld this ruling to prevent irreparable harm to workers “receiving low pay for long hours, having no overtime pay, breaks, health insurance, or sick leave and being forced to pay business expenses.” 

On November 3, 2020, California voters passed Proposition 22 also known as The App-Based Drivers as Contractors and Labor Policies Initiative – a ballot measure supported by Uber, Lyft, DoorDash, Instacart and Uber. Proposition 22 provides ride-hailing, delivery drivers and other workers of gig-economy companies with exemptions to AB5 such that they can continue to be classified as independent contractors, with some benefit concessions granted by the proposition. This win permits California app-based transportation companies to continue classifying their workers as independent contractors. 

Best Practices Tip: Consult with an experienced California employment lawyer for an analysis regarding what constitutes “other workers of gig-economy companies” before classifying them as independent contractors... 

Tressler's labor and employment attorneys have compiled a detailed article discussing the top ten 2021 employment law changes that are imposed by the state of California. The article also discusses key federal and state employment laws of Illinois, New York, New Jersey and Pennsylvania. 

Contact attorney Bicvan Brown at bbrown@tresslerllp.com to request a complimentary copy of this complete article.