On May 7, 2022, the California Occupational Safety and Health Standards Board (“Cal/OSHA”) released guidance, in the form of updated FAQs and fact sheets, concerning the revised COVID-19 Prevention Emergency Temporary Standards (“ETS”) that were adopted on April 21, 2022, and became effective on May 6, 2022.  This ETS applies to non-remote workers in California, except those who work alone and those covered by the Aerosol Transmissible Diseases standard, and will remain in effect until December 31, 2022. 

Cal/OSHA’s recently issued guidance provides additional insight into the new revisions to the ETS, but primarily serves to reiterate the updated requirements.  Cal/OSHA’s guidance highlights the following notable deletions made since the prior ETS:

  • The definition of “fully vaccinated” has been deleted as the term is no longer used in the updated ETS.  Consequently, all protections and requirements under this ETS now apply equally to employees regardless of vaccination status.
  • The previous workplace cleaning and disinfecting requirements were removed from the revised ETS.
  • The requirements for exclusion of employees after close contact with someone with COVID-19 have also been removed from the ETS.  Instead, the California Department of Public Health’s (“CDPH”) rules in this area will control and employers should follow that guidance, which does not recommend quarantine except for exposed unvaccinated/partially vaccinated employees in high risk settings. 
  • There is no longer any requirement for employers to document the vaccination status of their employees, but employers may do so and employers who operate in high risk settings should do so in order to comply with CDPH quarantine guidance. 
  • The prior requirement of utilizing partitions or barriers to reduce COVID-19 transmissions during regular and major outbreaks in the workplace has been removed.
  • With regard to employer-provided housing, exceptions for vaccinated and recently recovered residents were removed, as were the cleaning and disinfecting requirements.
  • With regard to employer-provided transportation, the exception for fully vaccinated employees has been removed, as were the prior cleaning and disinfecting requirements.  Additionally, the face covering requirement has been deleted and employers will now need to comply with the CDPH’s guidance on face coverings in vehicles instead.

Employers should review their policies to ensure compliance with the revised ETS, as explained through the guidance.  In addition to the ETS, employers must also continue to monitor local, state, and federal health departments for further changes to COVID-19 health and safety requirements.  Particular attention must be given to the public health orders from the CDPH as they are incorporated by reference in the ETS.

The revised ETS and Cal/OSHA’s updated guidance on it can be reviewed in full here: https://www.dir.ca.gov/dosh/coronavirus/ETS.html.

In February, we examined newly passed New York City Local Law 32, which required employers to disclose salary ranges in job advertisements. The law was set to take effect on May 15, 2022, but, on April 28, 2022, the New York City Council passed an Amendment to Local Law 32 that pushed the effective date of the law back to November 1, 2022.

Continue Reading NYC Amends Salary Transparency Law; Delays Effective Date

On April 11, 2022 Governor Glenn Youngkin signed HB 1173 into law, which replaces various provisions of the Virginia Overtime Wage Act (VOWA) with provisions largely consistent with the Fair Labor Standards Act (FLSA).

Continue Reading Virginia Overtime Requirements are Back in Alignment with the FLSA

Assembly Bill 1651 or the Workplace Technology Accountability Act, a new bill proposed by California Assembly Member Ash Kalra, would regulate employers, and their vendors, regarding the use of employee data.  Under the bill, data is defined as “any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular worker, regardless of how the information is collected, inferred, or obtained.”   Examples of data include personal identity information; biometric information; health, medical, lifestyle, and wellness information; any data related to workplace activities; and online information.  The bill confers certain data rights on employees, including the right to access and correct their data.

Continue Reading California Assembly Proposes Data Privacy Law for Workers

On May 2, 2022, the Supreme Court granted certiorari to Helix Energy Solutions Group Incorporated after Helix lost before the en banc United States Court of Appeals for the Fifth Circuit in a sharply-divided opinion last year.  In Hewitt v. Helix Energy Solutions Grp., Inc., 15 F.4th 289 (5th Cir. 2021), the Fifth Circuit held 12-6 that employers must guarantee their day-rate workers a minimum weekly payment that is reasonably related to the amount those workers actually earn in that timespan for their workers to be exempt from the FLSA’s overtime requirements.  This minimum weekly payment must be a predetermined amount that does not change based on the number of days or hours actually worked, if the employer wishes to enjoy the FLSA’s exemptions to paying its day-rate workers overtime.

Continue Reading Supreme Court Will Consider Helix Day Rate Pay Case

The Equal Employment Opportunity Commission has started to take affirmative steps to include non-binary classifications on agency forms.  In an announcement last month, individuals will be able to choose a non-binary gender markers when filling out intake and charge of discrimination forms used by workers for discrimination complaints levied against employers.  On these forms, an individual will be able choose “X” for the voluntary self-identification questions and use the prefix “Mx.”

Continue Reading EEOC Taking Steps to Include Non-Binary Classification on Forms

On April 11, 2022, the National Labor Relations Board’s General Counsel urged the Board to revive the long-abandoned Joy Silk doctrine, which has not been in effect in nearly 50 fifty years.

Continue Reading NLRB General Counsel Urges The NLRB To Revive The Joy Silk Doctrine For Union Elections

Assembly Bill 2932, a new bill proposed by California Assembly Members Evan Low and Cristina Garcia, would amend Section 510 of the California Labor Code to change the workweek from the standard 40-hour workweek to a 32-hour workweek for companies with more than 500 employees.

Continue Reading California Assembly Proposes Four-Day Workweek

On April 9, 2022, Maryland became just the tenth state (in addition to the District of Columbia) to enact a paid family and medical leave law that covers private-sector workers, after overriding Governor Larry Hogan’s (R) veto.

Continue Reading Maryland Becomes the Tenth State to Pass a Paid Family Leave Law

A small but growing number of employees are asking for cryptocurrency as a form of compensation.  Whether a substitute for wages or as part of an incentive package, offering cryptocurrency as compensation has become a way for some companies to differentiate themselves from others.  In a competitive labor market, this desire to provide innovative forms of compensation is understandable.  But any company thinking about cryptocurrency needs to be aware of the risks involved, including regulatory uncertainties and market volatility.

Continue Reading Cryptocurrency As Compensation: Beware Of The Risks