February 27 Update
Paid Sick Leave Legislation Moving
Legislation to extend paid sick leave is now moving in the California State Legislature. Official language was introduced this week in both the Senate and Assembly, AB84/SB 95. The legislation will extend COVID-19 supplemental paid sick leave for covered workers, if those workers are unable to work or telework due to reasons related to COVID through September 30, 2021.
While there has been some support for small businesses from the State, such as the currently proposed $2 billion grants program (SB 86), the funding level is not enough for sustained support for businesses to continue operating, much less afford to continue to provide supplemental paid sick leave. Any proposal to impost a new COVID-19 leave mandate on employers must include a funding from the State to pay for the costs of that leave.
The legislation is expected to move late next week or early the following week. While Labor is pushing hard for passage, legislators and staff seem open to the possibility of amending the legislation.
Reminder: Pay Data Reporting Due to DFEH By March 31
Pay data reporting is due to California Department of Fair Employment and Housing (DFEH) by March 31, 2021. New this year, all employers with 100 or more employees who file an annual Employer Information Report (EEO-1) under federal law must now file a report with DFEA on pay and hours works data by establishment, job category, sex, race, and ethnicity.
The information required closely mirrors that which must be reported on the annual EEO-1. Reports must include all employees who are assigned to California locations or who work or live in California. If an employee is assigned to a California location but works at a client site or teleworks outside of California, then that employee should also be included in the report. Employers must also include all California employees who telework from California to a non-California location. This requirement means that California employers must track where an employee resides, in addition to where the employee works or reports. Employers may also report on non-California establishments or employees, if doing so reduces the reporting burden.
The information, which will be aggregated and used by DFEH to give the agency a better understanding of any areas of concern that need to be addressed, will be kept confidential. To file visit the DFEH Pay Reporting Portal at https://pdr.dfeh.ca.gov/.
SF Court Upholds California Emergency Standard
On February 25, a San Francisco Superior Court Judge declined to block California’s COVID-19 Emergency Temporary Standard (ETS), allowing the state to move forward with its workplace regulation. The judge said he, did not want to block “emergency public health orders intended to curb the spread of COVID-19, and the illnesses, hospitalizations, and deaths that follow in its wake.” The court stated that the plaintiffs opposing the ETS were unlikely to win their case and declined to issue an injunction blocking the standards. The California ETS is in effect through September 2021 and the federal OSHA in Washington, D.C. is scheduled to release its own national ETS by March 15.
Action on Paid Sick Leave Delayed
The Senate Budget Committee will no longer be considering COVID-19 paid supplemental sick leave as an early action budget item on Monday, February 22, 2021. While it has been temporarily pulled from the agenda, we are hearing that organized labor has been given assurances that it will be coming in the near future, specifically the next time a group of budget items move. The California Labor Federation is continuing to push for action on paid leave immediately. The withdrawal came after the California chapters of the NTMA and dozens of other business groups filed a letter in opposition to sweeping action. The letter, attached here, was coordinated by the California Chamber of Commerce and employer groups who are concerned about the expansion of mandatory paid sick leave and disruptions to operations without improving workplace safety.
Cal/OSHA Receives Public Comments on COVID-19 Emergency Temporary Standards
Cal/OSHA has concluded the Advisory Committee meetings on possible changes to the COVID-19 Emergency Temporary Standards (ETS) to prevent infection in the workplace. The discussion draft ETS released by the Advisory Committee makes changes to how an outbreak is triggered in the workplace as well as changing several definitions under the standard.
One issue discussed by the Advisory Committee, that was not included in the discussion draft, is the impact of vaccinated employees in the workplace and how vaccinations can be incorporated into the scope of the COVID-19 prevention regulations. As the ETS is currently written, when an instance of workplace exposure or a positive test occurs, all employees with COVID-19 exposure must be excluded from the workplace and provided with exclusion pay. The Advisory Committee is now evaluating how the exclusion procedures as well as other precautions required by employers to prevent the spread of COVID-19 should be altered if one or more employees has been vaccinated. The Advisory Committee did bring up some concerns due to the lack of concrete data on transmission of the virus from individuals who are vaccinated. The Advisory Committee will be accepting comments from the public through February 26, 2021, after which a formal proposed rule is expected to be released.
February 17 Update
LANTMA Supporting Cal Chamber Effort to Oppose Emergency Paid Sick Leave Supplemental.
The LA/NTMA will join forces with many other associations and businesses to oppose this legislation unless the Government is going to help pay for this effort versus having the entire burden fall on employers. You can read our letter of support here.
February 12 Update
Biden Administration Asks for Pause on CA Vehicle Emission Court Actions
Litigation has been paused by a federal appeals court in Washington D.C. on the Trump Administration’s rule revoking California’s authority to set its own vehicle emissions standards, following a request from the Biden Administration.
The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule’s “One National Program Rule,” issued by the Trump Administration in September 2019, withdrew the waiver provided to California to regulate vehicle greenhouse gas emissions and to implement a zero-emission vehicle program under the Clean Air Act and gave the federal government the sole authority to set emission standards. Shortly after California and numerous other states filed suit against the National Highway Traffic Safety Administration (NHTSA) and the Environmental Protection Agency (EPA).
The U.S. Court of Appeals for the D.C. Circuit granted an order from the Biden administration on February 8, 2021, to stay litigation in the cases on the waiver until further notice while the new administration reviews the Trump administration’s actions.
Organized Labor Seeking to Extend Emergency Paid Sick Leave
Labor organizations in California are circulating a letter to legislative offices asking for the approval of a proposal to extend COVID-19 specific emergency paid sick leave, which expired on December 31, 2020, as an early budget action item. The letter does not specify if they are seeking to extend the timeline to use the originally granted 80 hours of emergency paid sick leave or require an additional 80 hours of emergency paid sick leave.
The Federal Family First Coronavirus Response Act (FFCRA) and California’s AB 1867 required employers to provide up to 80 hours of paid sick leave and while the COVID response bill passed by the U.S. Congress in December extended the ability for employers to claim a payroll tax credit for providing the emergency paid sick leave through March 31, 2021, it did not extend the requirement to provide leave. While it is unclear at this time regarding the willingness of the legislature or the Governor to support this proposal, many local governments have already taken action to continue their local supplemental sick leave ordinances such as the City of Oakland; Los Angeles County; the City and County of San Francisco; and the City and County of Sacramento.