In Episode 104 of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law experts Bianca Saad and Matthew Roberts discuss the most frequently asked questions from the 2021 CalChamber Employment Laws Update seminars.
The questions cover the Families First Coronavirus Response Act, face coverings for COVID-19 prevention, COVID-19 prevention plans, COVID-19 testing, and a new California pay data reporting obligation.
This podcast was recorded on January 22, 2021. Listeners should be aware that given the unpredictability of the COVID-19 pandemic, information shared on this podcast episode may change at any time.
Families First Coronavirus Response Act
The Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020, but as part of the most recent pandemic relief package, Congress extended the FFCRA tax credit into 2021 for employers who voluntarily offer the program, Frank explains.
What many attendees at the Employment Laws Update seminars wanted to know was whether both components of the FFCRA—paid sick leave, and paid expanded family and medical leave—had to be offered in order to receive the tax credit, Saad tells podcast listeners.
There is no clear answer to this question as even recent FAQs released by the U.S. Department of Labor (DOL) have not given the green light for employers to pick and choose what component they want to offer, she explains. So at the moment, employers must offer the FFCRA in its entirety in order to be eligible to receive the tax credit.
Surprisingly, even though the state’s mask mandate has been out for some time, attendees still had questions about it, Roberts says. Do masks have to be worn indoors? Can employees be disciplined for refusing to wear them?
The answers, Roberts says, are yes they have to be worn, and yes employees can indeed be disciplined for refusing to wear a face covering. If an employee is in their office by themself, they do not need to wear a mask, but if someone else is in the room—even if they’re socially distanced—both people need to wear a mask.
What about gaiters, Frank asks?
While the mask mandate does not specifically address gaiters, the U.S. Centers for Disease Control and Prevention (CDC) states that gaiters can be used if they’re doubled up, Roberts explains. The California Department of Public Health (CDPH) and California Division of Occupational Safety and Health (Cal/OSHA) usually go along with what the CDC states, so if an employer is going to use equipment (such as a gaiter) that’s outside of what a traditional face covering is, they should ensure they stay up-to-date with the standards and guidelines.
Masks are uncomfortable, “but they’re part of our health and safety rules,” he says. So not only must employers implement and enforce the rules, they can also do it with disciplinary action.
Frank reminds listeners that not all employees can wear face coverings and may seek out a reasonable accommodation. If a worker requests an accommodation due to a disability or health condition, employers will need to go through the interactive process with the employee.
COVID-19 Prevention Plans
Another hot topic has been COVID-19 regulations. In particular, attendees were confused about COVID-19 prevention plans and whether the plan needs to be distributed to all employees. Saad explains that the prevention plan does not need to be given to all employees, but it is important that employers have it.
The best place to start, she says, is the California Department of Industrial Relations (DIR). The agency has a model plan on its website that employers can use if they do not have a prevention plan. Employers just need to fill in details pertaining to their particular workplace.
COVID-19 testing is another area that many attendees had questions about, Frank says. Is it required? Do employers need to pay workers for the testing? Is it sufficient to send employees to a community-based center?
What’s important to know about this area is that government agencies focus on time rather than obtaining a test, Roberts answers. They focus on time-based strategies to isolate people for a period of time, and once someone meets the time threshold, they are then eligible to return to work. Obtaining a negative test is not required to return to work.
The isolation time requirements vary depending on whether someone was merely exposed to COVID-19 or if someone has COVID-19, Frank explains. The timeframe is outlined and the COVID-19 Emergency Temporary Standards are explained in a recent Cal/OSHA FAQ.
Two new nonCOVID-19-related employment laws that generated many questions were: a new pay data reporting obligation; and a mandatory reporter requirement (AB 1963), Frank says.
The new pay data reporting obligation applies to employers with more than 100 employees, Saad explains. For the purposes of these reporting requirements, employers should report data on all employees in California, and for employees located outside of California, include all employees who report to a California-located establishment.
An upcoming podcast will address AB 1963 directly, Frank says, but the new law pertains to harassment prevention, and affects employers with more than 5 employees and that employ minors.
The law expands the definition of who a mandatory reporter is in the workplace. It establishes that an HR professional and supervisor is considered a mandatory reporter, and contains a training component, Roberts explains.
(For more information on AB 1963, see the Labor Law Corner.)
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