Since the COVID-19 pandemic first began, it has had a multitude of evolving impacts on the operation of the workplace.  One impact is the increased number of requests employers are receiving from employees for reasonable accommodations.  These increases are attributed to various factors, which have evolved as the pandemic has progressed.  At the outset of the COVID-19 pandemic, many of the requests for reasonable accommodations arose from employees with medical conditions that placed them at higher risk if they contracted COVID-19.  With the development and approval of the COVID-19 vaccine and the establishment of COVID-19 vaccine requirements for employees, many of the requests for reasonable accommodations began to arise from employees with disabilities preventing them from being vaccinated or from employees with sincerely held religious beliefs, practices, or observances that conflicted with the requirement that they be vaccinated.  As California employers navigate these requests, a recent federal case provides an essential reminder for California employers.

Employers Must Engage in a Good Faith Interactive Process

In Madrigal v. Performance Transportation, LLC, the federal district court for the Northern District of California, analyzed multiple claims arising under the Fair Employment and Housing Act (FEHA) that were brought by Jorge Madrigal, who worked as a driver for Performance Transportation, LLC (PTL).  The facts are as follows:

Madrigal’s essential functions as a driver included driving and delivering food items to PTL’s customers.  When the COVID-19 pandemic began, Madrigal was on a medical leave, which his doctor extended because Madrigal had diabetes, which put him at high risk for severe illness if he contracted COVID-19.  Several months later, Madrigal provided PTL with a doctor’s note stating that he could return to work if he minimized contact with other people for six to twelve months during the COVID-19 pandemic due to his high-risk status.  Madrigal requested a reasonable accommodation to that effect, and asserted he could perform the essential functions of his position with this accommodation.

Madrigal met with three PTL employees about his request for a reasonable accommodation.  During the meeting, PTL denied Madrigal’s request to work in PTL’s warehouse, as a way to minimize contact with other persons, and ended the meeting without offering Madrigal any other reasonable accommodations.  Ten days later, PTL fired Madrigal and stated that no reasonable accommodations were available for him.

Madrigal filed a complaint against PTL, which alleged a wrongful termination claim and several FEHA claims, including claims for (1) disability discrimination, (2) failure to accommodate, (3) failure to engage in a good faith interactive process, and (4) retaliation.  PTL filed a motion to dismiss each of Madrigal’s claims.  After analyzing each of Madrigal’s claims, the court granted PTL’s motion to dismiss because Madrigal’s complaint lacked sufficient information to support his claims.  However, the court gave Madrigal the opportunity to amend his complaint to provide additional supportive information.  After Madrigal amended his complaint, the court again analyzed each of Madrigal’s claims.

In reviewing the facts, the court found that Madrigal had provided sufficient facts to support each of his claims.  Importantly, the court found that Madrigal sufficiently pled his failure to accommodate and failure to engage in an interactive process claim because the facts he provided showed he made a reasonable request for accommodation, that PTL denied the request without offering any options for accommodations, that PTL made no attempt to accommodate his disability, and that there were several different accommodations available that PTL did not explore before terminating Madrigal.  Therefore, the court did not grant PTL’s motion to dismiss, and allowed Madrigal’s complaint to proceed.

The Madrigal case provides the essential reminder of an employer’s legal obligation to engage in a “timely, good faith, interactive process” with employees in response to their requests for reasonable accommodation, and an employer’s legal obligation to make reasonable efforts to identify appropriate reasonable accommodations.  The interactive process is intended to be a flexible one that involves participation by both the employer and the individual with a disability.  In most circumstances, an employer will not fulfill their obligation to engage in the interactive process if the employer does not consider whether the employee’s requested accommodation is reasonable or offer alternate accommodations that would enable the employee to perform essential job duties with or without reasonable accommodation.  While this case is still at the pleading stage, moving forward, the employer will have to demonstrate that the employee’s requested accommodation was not reasonable and that no other reasonable accommodations were available that would enable the employee to perform his or her essential job duties, including but not limited to reassigning the employee to an alternate vacant position for which the employee is qualified.

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This article was originally published in April 2017.  The information has been reviewed and is up-to-date as of November 2021. 

A newly-elected official is going to want to fill top posts in their organization with persons committed to the official’s vision for the future.  In the same way, a top official after a period of months or years may want to change key lieutenants because of political differences.  Indeed, this ability to pick and choose among key advisers and high-level posts in a public organization has long been a traditional element of politics.

But sometimes, these notions come into a conflict with well-established job protections of public employees.  One of these is the First Amendment, which in a number of circumstances prohibits public agencies from taking adverse actions against employees based on their speech or political associations.  For most public employees, their speech and even their criticism of their own agency can have protection under the First Amendment if particular conditions are met.  Under principles of constitutional law, a public employee can assert a First Amendment retaliation claim against his or her employer if:

  1. the employee suffers an adverse employment action because of the employee’s speech,
  2. that speech was on a matter of public concern,
  3. the speech was outside the employee’s “official duties,” and
  4. a balancing test of certain respective interests favors the employee.

Of course, public employees often have numerous other protections against adverse employment actions, including due process rights, contractual “for cause” standards, and protections in collective bargaining agreements.

As far as the First Amendment is concerned, however, for some key employees, there is in fact room for what can appear to be arbitrary action or “patronage” dismissals.  The United States Supreme Court has created a “policymaker exception” to First Amendment protection, recognizing that an elected official must be able to appoint some high-level politically loyal individuals who will help him or her implement the goals or programs for which the public voted.  See Branti v. Finkel.  The U.S. Court of Appeals for the Ninth Circuit (covering California) described in a 1997 case titled Fazio v. City of San Francisco that if an employee is “a policymaker, then . . . his government employment could be terminated for purely political reasons without offending the First Amendment.”  The Court described the following factors a Court must consider in identifying a “policymaking” position:

  • “vague or broad responsibilities,”
  • “relative pay,”
  • “technical competence,”
  • “power to control others,”
  • “authority to speak in the name of policymakers,”
  • “public perception,”
  • “influence on programs,”
  • “contact with elected officials,” and
  • “responsiveness to partisan politics and political leaders.”

In a 2012 decision, Hunt v. Orange County, the Ninth Circuit added some refinements to the “policymaker” test.  The Court held that the exception turned essentially on an overarching factor of whether political considerations had sufficient significance in the job duties of the employee in question.  “The essential inquiry” the Court described “is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.”  (Emphasis added.)  In the Hunt case, the Ninth Circuit found that Orange County Sheriff Michael Carona could not rely on the policymaker exception to demote a particular high-ranking employee, William Hunt, who had run against him for Sheriff.  Hunt was the Chief of Police Services for the City of San Clemente, which contracted with Orange County Sheriff’s Department for police work.  The Court reasoned: “Here, the record fails to establish that Hunt’s party affiliation or political outlook were relevant to the effective discharge of his professional duties.”  Instead, the factual findings were that “Hunt’s political statements—which were the basis of his demotion—did not cause, and could not have been reasonably predicted to cause, a disruption in the efficient operation of the department.”  The Court’s opinion interprets the applicable test in a way that appears to make it more difficult for employers to invoke the exception.

District court cases decided after Hunt provide examples of what types of employees were considered policymakers.  In 2013, in Wittenberg v. Public Utility Dist. No. 1 of Skamania County, the U.S. District Court for the Western District of Washington determined that a general manager of a public utility district, selected by three elected officials, was a policymaker.  In 2015, in Summers v. City of McCall, a District Court in Idaho determined that a City Chief of Police in that case met the definition.  In 2016, in Kaelble v. Tulare County, the District Court for the Eastern District of California found that a Supervising Deputy District Attorney to be a policymaker where each of the relevant criteria was satisfied.

In conclusion, deciding that an employee meets the definition of a policymaker can obviously have important ramifications for the employee – and for the agency, if it makes a politically motivated decision as to someone whose job does not actually meet the definition.  Accordingly, it is best to obtain legal advice if there is any doubt.

This article was originally published in October 2020.  The information has been reviewed and is up-to-date as of November 2021. Though the state of California is now opening up increasingly due to improving pandemic numbers, the details included in this blog continue to serve as helpful tips during this time.

I moved to Los Angeles from New York 12 years ago.  One of my favorite aspects of practicing law here was appearing in different courthouses throughout Southern California.  I enjoyed seeing the mountains as I drove out to San Bernardino or visiting many courthouses around LA and Orange County.  I also observed oral arguments, the judge’s rulings, and the attorneys (once I recall wondering at the Santa Monica courthouse if it was really acceptable to wear flip flops to court).   Similarly, I enjoyed traveling for depositions or mediations, where I would meet my clients in person.  Having that personal interaction, even with opposing counsel, was a nice change of pace from just being in an office interacting by phone or email.  Now, however, we are litigating in a pandemic, and many things we never thought about in litigation have changed.

First, for court appearances, instead driving around and walking into the courthouse, my commute is either to my kitchen or to my LCW office so I can appear remotely.  For my first remote video appearance at the Los Angeles Superior Court, I appeared from my LCW office, just to be sure I did not have any technology issues and there would be no family interruptions.  While initially there were some complications connecting, once it worked, I had an up close view of the judge and I was able to successfully argue the motions just like I was appearing in Court.  I was able to listen to the other matters before the judge that day, just like I would if I were in court in person, but I couldn’t always see the attorneys.  One aspect that was different, and true for all video calls, is that I am conscious of how I appear on camera – now sensitive to touching my face or even drinking water.  I also need to be mindful to speak more slowly and clearly to account for any lag or lack of clarity in the transmission.  Another issue is to be mindful of lighting and how it appears on the computer.  These additional considerations were never something one needed to consider when appearing in person, but on the bright side, you don’t need to worry about parking!  While I would still prefer to appear in person to argue motions when the pandemic ends, appearing by video was very effective and could be more efficient to alleviate travel time.

Second, depositions have gone remote.  When the pandemic first started, we thought we would be back in the office in a month or two, so we just postponed our depositions.  But as we realized we would be working remotely longer than we anticipated, we began taking remote depositions.  There were so many questions to consider.  How would we show witnesses’ exhibits?  Would the witnesses cheat – could they secretly be looking at notes they prepared in advance?  What if the witness didn’t have the equipment or technology at home to do a Zoom appearance?  Could the court reporter swear the witness in if they were not in the same place?  But as all attorneys and court reporters tackled these issues, we quickly worked them out.  Through Zoom, we can share documents, and the witness can be given control to look through all the pages of an exhibit.  We can ask the witness to move the camera around the room so we can see there are no notes or others present, and can ask the witness to put their phone behind them, and in a way that we can see them doing so on their computer’s camera.  When we realized the pandemic wasn’t ending any time soon, we deposed the plaintiff in a case by Zoom during the summer of 2020 and it was an effective and successful deposition; of course, Zoom depositions are now commonplace.  We were able to thoroughly cross-examine the witness just as we would in a conference room, and the court reporter was able to prepare the same transcript.  At one point the plaintiff became emotional and cried, which to me indicates the impact of the deposition was the same as being together in a conference room.   Zoom depositions also offer more flexibility in scheduling, and may make it easier for clients to attend.  In addition, I recently agreed to accommodate a non-party witness’s work schedule to take the deposition at 7:30 a.m.  If we all had to be in the office, it would be more difficult on everyone’s schedule, but now we just need to log onto Zoom from our homes.

Finally, mediations have also gone virtual.  Before the pandemic, a mediation typically involved both sides in separate rooms and the mediator going back and forth to reach a settlement.  Mediations often lasted into the early evening, settling when everyone was worn out after a long day.  There also was a lot of downtime when the mediator was with the other side, which gave the attorneys and clients time to chat and build more personal connections.  Mediations on Zoom are different.  During the pandemic, I participated in two Zoom mediations.  They were both shorter overall than I think they would have been in person; perhaps there was more of a desire to cut to the chase when everyone was in a room alone in front of a computer or people had Zoom fatigue.  There was also more free time, because often when the mediator was with the other side, everyone just muted and turned the camera off, and then we would be alerted when it was time to go back.  While this made for more efficient use of time, we lost some of the opportunities for personal connections (though in one mediation when we had some downtime, the mediator showed us how to play Scattergories online and we all shared our dogs on video).

As the pandemic hopefully winds down, we may continue to use technology for remote appearances at motion hearings, depositions, and mediations.  In addition, while we cannot do in-person witness interviews, Zoom allows us to connect face-to-face better than a telephone.  Senate Bill 1146 was enacted and signed by the Governor on September 18, 2020.  This law took effect immediately as urgency legislation and implements pandemic-related changes including permitting remote depositions at the election of the deponent or the deposing party, as well as changes for electronic service, electronic signatures, and trial continuances.

 

Over the last several years, virtually all levels of government have increasingly recognized the critical link between building a diverse, equitable, and inclusive workplace and effectively meeting the needs of the communities they serve—in particular, historically underserved and marginalized communities.

At the federal level, the Biden Administration has issued several Executive Orders that recognize the need for a systemic approach to identifying and addressing policies and programs “that serve as barriers to equal opportunity.”  Most recently, in June 2021, President Biden signed Executive Order 14035, which in part, directs the Office of Personnel Management (in coordination with several federal commissions and executive councils and departments) to develop a federal Government-wide Diversity, Equity, Inclusion, and Accessibility (DEIA) Initiative and Strategic Plan.  The DEIA plan must identify strategies to advance equitable policies and practices in areas including, but not limited to federal workforce recruitment, hiring, background investigations, performance reviews, and promotions, as well as take a data-driven approach to determine what federal agency practices result in inequitable employment outcomes.

At the state level, California is currently working in partnership with a staffing organization to source talent in a manner that helps the government “better reflect the diversity of the state – in geography, racial and ethnic representation, sexual orientation and gender identity, professional experience, and disability status.”  Additionally, for decades, the California Community College system has promulgated and enforced robust equal employment opportunity (EEO) regulations that require districts to develop and implement EEO Plans and utilize external recruitments for all vacant positions.

Finally, at the local level, many cities, counties and other municipal agencies are examining their own recruitment and hiring practices, including by hiring EEO/Diversity, Equity, and Inclusion (DEI) officers to assist in these efforts.

The challenge that all California public agencies face is that they must navigate two competing obligations: their increased interest (and in some cases legal duty) to promote EEO/DEI in the workplace; and their duty to comply with the constitutional prohibition against discrimination and “preferential treatment” effectuated by Proposition 209.  To engage in such balancing, those involved in agency recruitment and hiring should first understand the legal parameters and obligations that surround EEO hiring.  Second, they should understand the range of proactive strategies that may operate within this legal framework. Each of these is discussed below.

The Legal Backdrop: Proposition 209 and the Legislative Responsive

Proposition 209, which voters passed in 1996, amended the California Constitution to now read:

“The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

While discrimination against protected classes was unlawful long before passage of Prop. 209, the additional prohibition against “preferential treatment” has been broadly interpreted by the California Supreme Court to prohibit any consideration of protected status by a public agency in a hiring or other decision. This prohibition extends to practices that give special consideration to a protected group for the purpose of correcting an identified underrepresentation of that group. In other words, what was once called “benign” discrimination in the context of traditional affirmative action programs no longer exists; in California, there is no such thing as “benign” discrimination.

However, despite this prohibition against preferential treatment in public employment, the California Legislature has declared that Proposition 209 “does not prevent governmental agencies from engaging in inclusive public sector outreach and recruitment programs that, as a component of general recruitment, may include, but not be limited to, focused outreach and recruitment of minority groups and women if any group is underrepresented in entry-level positions of a public sector employer.”  (Gov. Code, § 7400, et. seq.)    

Further, the Legislature enacted legislation requiring public agencies to engage in general recruitment and outreach that includes outreach and recruitment of individuals who are “economically disadvantaged.”  Given the timing of this legislation in relation to the passage of Prop. 209, it is likely that the Legislature enacted this mandate as a way to require employment practices that did not violate Prop. 209 while nonetheless improving outreach to minority communities—given the correlation between poverty and race in the United States.

It is against this legal backdrop that agencies should consider several best practices to correct systemic inequities and promote DEI, all while finding the best, most qualified candidates for the job.

Best Practices for Hiring the Best While Facilitating DEI in the Workforce

Promoting DEI in the workplace involves much more than just ensuring that agencies act defensively to protect against discrimination in their hiring practices.  It requires agencies to be proactive, which involves: taking concrete steps to foster a workplace culture that genuinely values the benefits of a broadly diverse workforce; being willing to examine their own policies and practices for potential engrained and systemic biases; and implementing practices designed to preclude irrational factors from influencing institutional decisions and behavior.

Implementing lawful EEO/DEI strategies also requires an understanding of what EEO/DEI hiring is, and what it is not.  EEO/DEI hiring is not about lowering standards in order to get a more diverse group of applicants to the table.  Rather, EEO/DEI hiring is about eliminating the false predictors of performance that cause qualified candidates to be excluded from consideration.      By engaging in these recommended practices, agencies can begin to improve workforce diversity by a) building highly diverse and qualified applicant pools; b) from which agencies use objective processes to select the most qualified candidates—without consideration given to protected status.

Finally, what all the suggested strategies below have in common is that they support a hiring process that:

  • utilizes neutral practices that do not give preference based on protected status, but are designed to increase the diversity of qualified pools;
  • from which the agency hires without consideration given to protected status;
  • using a structured, fair process implemented by well-trained staff.

1. Use Data to Inform Your Strategies. Two different policy considerations inform agencies’ interests in workforce diversification: 

First, “EEO”—as the term suggests—is concerned with equality in employment. Thus, it is concerned with processes that are fair and equitable for job candidates.  Data that informs EEO strategies looks at such things as the demographics of qualified applicant pools, as compared to who the agency invites to interview, as compared to who the agency ultimately selects for the position.

Second, “DEI”—as this term suggests—is concerned not just with the composition of the workforce, but a work culture that is equitable and inclusive.  Additionally, it considers how workforce diversity affects equity in community access to services and employment. Data relevant to these interests include such things as comparing the demographics of the workforce to the community the agency serves.

Neither consideration should be looked at in isolation.  For example, focusing exclusively on the demographics of a community to guide workforce composition could lead to employment discrimination—if the community itself is not diverse. That said, if an agency does not have a clear picture of its own workforce and community, it is ill equipped to design strategic initiatives that are designed to meet its employment and community service needs.

Data may also be used to identify the underrepresentation of protected groups in the workforce.  Agencies can utilize various methods and measures to assess this kind of disproportionality. For example, the California Community College system compares the percentage of individuals in a particular protected group in a job category with their projected availability in the workforce from which the candidate pool is drawn.

Representation in the work force below eighty (80) percent of projected availability is considered underrepresentation.  Agencies interested in designing focused recruitment programs should consider developing data that documents underrepresentation. As noted above, the Legislature expressly authorizes focused recruitment efforts where an agency has identified underrepresentation.

2. Conduct Focused or Highly Inclusive Recruitments Informed by Your Data. First, it is important to distinguish “focused recruiting” from “targeted recruiting.”  “Targeted” recruiting only recruits within the group from which you are hoping to hire—and is unlawful.  “Focused” recruiting ensures that the position is advertised to the general population within the geographic area of the recruitment—and then also reaches out to members of the protected group that you want to be more represented in the workforce.  For example, if a County Mental Health Department determined that African Americans were underrepresented among its psychologists, it would not be lawful to exclusively announce the position through the Association of Black Psychologists. However, it would be lawful to reach out to the ABP, in addition to publishing the job announcements through the agency’s regular general recruitment process.

Further, it is possible (and probably more common) that agencies identify an interest in increasing the representation of a particular group or groups in the workforce, without the ability to demonstrate statistical underrepresentation.  For example, the demographics of the community the agency serves is not a relevant indicator of workforce underrepresentation—but might inform an agency’s policy interest in increasing the representation of a particular group in its workforce.  Similarly, an agency may have data that is suggestive of underrepresentation, but is statistically inconclusive. In these situations, because there is not a clear indication of underrepresentation, the law does not expressly authorize focused recruitment.  However, we think an agency could engage in what we call “highly inclusive” recruitments that recruit through general circulation platforms, and then also recruit through a wide array of specialized platforms.

3. Train HR Employees, Hiring Committees, Hiring Managers and Other Decision Makers, Including Boards and Councils, Regarding EEO/DEI Practices. California law requires that all agency officials and employees receive anti-harassment training upon hire and every two years thereafter.  In addition, employees and officials involved in hiring decisions, including Human Resources employees, members of selection committees, hiring managers, and board and council members should receive EEO training.  Trainings should cover nondiscrimination laws and regulations; the benefits of workforce diversity; elimination of bias in hiring decisions; and best practices for selection committees and hiring managers.

4. Update Job Announcements. In order to identify the most qualified candidates for any job, selection committees should work with Human Resources to review and update job announcements before posting a vacancy.  Agencies should ensure that job announcements reflect the actual functions of the job and that the required and preferred qualifications accurately reflect the knowledge, skills, and abilities (KSAs) that are reasonable predictors of success for a particular role.  For example, if a hiring manager wants to include “Master’s Degree preferred,” the agency should be sure that a Master’s is—in fact—a reliable predictor of performance. This is because the preference for a Master’s also may reduce the diversity of the pool.  We especially encourage agencies to update job descriptions to ensure they capture the most current knowledge and skills relevant to the position.  Agencies will find the greatest concentration of diverse, qualified candidates among those who are most recent to the field.  Thus, a process that gives more recent entrants to the field an opportunity for consideration will have the tendency to diversify the qualified pool.

5. Develop Agency-Wide Hiring Procedures for All Stages of the Hiring Process. Agencies should establish procedures that standardize hiring practices at each stage of the process, including the final round of interviews.  Procedures should include developing guidelines for the review of written applications (paper screenings); appropriate interview questions that assess the KSAs of the candidates; and rating criteria and model answers for the interview questions.  Rating criteria and model answers should only assess candidates’ answers based on the job-related criteria articulated in the applicable job description.  Trained Human Resources employees should review interview questions developed by selection committees or hiring managers to ensure the questions do not implicate protected statuses.

6. Focus on Workplace Culture. Ultimately, any agency’s best tool for recruitment and retention is to foster an inclusive, curious, and respectful work culture. Nontraditional candidates look for a work environment where they will be welcomed and respected. Thus attracting—and retaining—a diverse workforce hinges on creating the sort of work culture that serves to attract and retain the employees who contribute to an agency’s diversity.

 The key factors essential to promoting an inclusive and respectful work culture include:

    • Visible buy-in from leadership and all agency stakeholders, including an agency’s executives, board or council, and union leadership;
    • Demonstrated action through policy development; and
    • Dedication of resources to agency-wide training.

Developing mentorship programs and sponsoring cultural events that celebrate workforce and community diversity can also assist in this process.

Agencies interested in examining their recruitment and hiring policies and practices to identify whether they serve as barriers to equal employment opportunities for qualified individuals should contact trusted legal advisers.

 

It is no secret that the COVID-19 pandemic has had some type of impact on many people’s mental health. On October 10, 2021, the World Health Organization (WHO) recognized World Mental Health Day, and this year’s theme is “Mental health care for all: let’s make it a reality.” The past 18 months have brought forth a number of challenges for almost everyone, and particularly for many frontline workers – including health care workers, teachers, police officers, and firefighters – who have been working tirelessly throughout this pandemic to help serve their communities. The Centers for Disease Control has reported that burnout, poor mental health, and stress can negatively affect employees in a number of ways, including job performance and productivity, engagement with one’s work, communication with coworkers, and daily functioning. In honor of World Mental Health Day, below are some tips and suggestions for employers to consider in creating a mentally healthy work environment for employees throughout these difficult times and moving forward.

Increase Communication with Employees

It is crucial for employers to stay in touch with their employees and be transparent regarding any changes in their work environment. If possible, try to involve employees and obtain their input on ways to make their work experience better or more manageable. Employers should also be open minded about each employee’s experiences and personal challenges, and try to respond with empathy and support, and where appropriate, encourage them to seek help. Being transparent and increasing communication with employees builds trust with the workforce and shows the organization’s commitment to a culture of caring.

Provide Resources for Support

There may be some cases where employees are unaware of the resources for support available to them. Employers should let employees know of available mental health resources provided and encourage employees to make use of them. This can include offering a list of resources for mental health support or reminding employees of the workplace policy on accommodations, paid sick leave, or other available sources for time off. By regularly providing information about how employees can seek resources to help with their mental health problems, this may help reduce the stigma that is often associated with seeking help. Other ideas for providing resources to support mental health include creating and maintaining a dedicated quiet space or time for relaxation or meditation during the workday.

Offer Flexibility When Available

If remote work or a flexible work schedule is an option for certain workplaces, consider allowing an employee to take that option when possible. Offering flexible work options, such as allowing an employee to work remotely, can likely help lessen the stress of a long commute, traffic, and childcare concerns.

Be Mindful of Employee Privacy Concerns

While we want to encourage employees to take care of their mental health, employers should also keep in mind that employees are entitled to keep their mental health conditions private, and should not solicit information from employees about their mental health conditions except in limited circumstances. California law also prohibits employers from discriminating against employees based on a disability, which includes perceived disabilities.

Addressing and prioritizing mental health is important to productivity and sustainability for all workplaces. By considering and implementing the suggestions above, employers can help provide employees with a supportive and more mentally healthy work environment.

Under updated guidance issued by the California Department of Public Health (“CDPH”),[1] certain asymptomatic unvaccinated employees who have had a close contact exposure[2] to someone with COVID-19 may end their quarantine and return to work seven (7) days after the exposure as opposed to ten (10) days.

The CDPH guidance provides that unvaccinated individuals who have a close contact exposure may discontinue the required quarantine after seven (7) days, so long as the individual is asymptomatic, is tested for COVID-19 at least five (5) days after the exposure, and the test produces a negative result. This quarantine period is shorter than the ten (10) day exclusion period required for such individuals under the Cal/OSHA COVID-19 Regulations.[3]

Employers may rely on the updated CDPH guidance to allow unvaccinated employees who satisfy the return-to-work criteria to return sooner than previously permitted. Employers do not need to adhere to the lengthier exclusion period under the Cal/OSHA COVID-19 Regulations because Executive Order N-84-20[4] provides that CDPH may establish a shorter exclusion requirement.

Duration of Quarantine for Unvaccinated Individuals

Given the updated guidance, asymptomatic unvaccinated employees who have a close contact exposure may discontinue their quarantine and return to work under either of the following circumstances:

  1. Ten (10) days after the date of the last known close contact exposure without being tested for COVID-19; or
  2. Seven (7) days after the last known close contact exposure if the employee is tested for COVID-19 no earlier than the fifth (5th) day following the last exposure and the employee tests negative.

In addition to the rules regarding the discontinuation of the quarantine, asymptomatic unvaccinated employees should continue daily self-monitoring for symptoms and follow all recommended safety precautions (wearing a mask when around others, hand washing, avoiding crowds, and staying at least six feet from others) for fourteen (14) days following the last known exposure. If an employer prevents one of their employees from complying with these conditions, the employee will need to observe the longer exclusion period specified in the Cal/OSHA COVID-19 Regulations.

Conclusion

As a result of the updated guidance, employers may direct unvaccinated employees who are excluded from work as a result of a close contact exposure to be tested for COVID-19 on the fifth (5th) day following the exposure in order to return to work in a shorter period of time. Employers should note that if they direct employees to be tested, the employer will be responsible for any costs incurred by the employee[5] as a result and compensation for the time waiting to be tested and being tested.[6]

Employers should also note that they have an obligation to adhere to the most restrictive or prescriptive applicable guidance on this subject and certain local health departments may still require a full ten (10) day quarantine regardless of testing.

LCW attorneys are familiar with the operation and interaction of the laws and public health orders implicated here and are ready to assist employers revise their policies and practice to account for the updated guidance.

[1] CDPH, Guidance on Isolation and Quarantine for COVID-19 Contact Tracing (last updated on September 9, 2021) <https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx>.

[2] The CDPH defines “close contact” as an individual who comes within 6 feet for a cumulative total of 15 minutes or more over a 24-hour period with someone with suspected or confirmed COVID-19.

[3] Cal/OSHA COVID-19 Regulations (last updated on June 17, 2021) <https://www.dir.ca.gov/dosh/coronavirus>.

[4] Executive Order N-84-20 (December 14, 2020) <https://www.gov.ca.gov/wp-content/uploads/2020/12/12.14.20-EO-N-84-20-COVID-19.pdf>.

[5] Labor Code, § 2802 subd. (a).

[6] 29 C.F.R. § 785.43.

This article was originally published in October 2019.  The information has been reviewed and is up-to-date as of October 2021.

 

Many workplaces and schools engage in Halloween celebrations, and with good reason.  LCW is no exception:

However, Halloween parties can be scary for risk managers, as they carry the potential to put a few skeletons in an employer’s closet.  Here are some tricks to keep your Halloween party from raising the specter of liability:

  • Employees Should Know They are Free to “Ghost”.  Participation in any Halloween festivities should be entirely optional.  Employees may not feel comfortable celebrating Halloween; for some employees, it may be prohibited by their religious beliefs.  Nobody should be required to take part, and an employer should not tolerate teasing or ostracism of an employee who opts out.  It’s only fun if everyone’s having fun.
  • When Choosing Costumes, Don’t Let the Zombies Eat Your Brain.  Dracula, Frankenstein, Mickey Mouse, Elsa and/or Anna, a cowboy, an M & M, a puppy, any of the three PJ Masks. . . there are nearly unlimited options for inoffensive Halloween costumes.  And yet, every year, some ghouls make the news by wearing costumes that would give any employer nightmares.  Human Resources professionals can reduce this risk by providing common-sense guidance as to what is an appropriate costume for a Halloween celebration at the office:
    • An attempt to “wear” or parody another culture, religion, race, or identity is not a costume; it’s an exhibit in someone else’s lawsuit for harassment or discrimination.  It should go without saying that blackface or brownface is unacceptable.  The same is true of traditional cultural dress.  A good costume does not make one’s colleagues feel caricatured, mocked, or belittled for their protected characteristics.  On the other hand, an employee should not be prohibited from wearing expressions of his or her own identity.  Context matters.
    • At some point, Halloween shifted from being an opportunity for kids to get free candy to an opportunity for adults to free themselves of their inhibitions.  Inhibitions can be a good thing at work.  A Halloween costume should not expose any part of an employee’s body that ordinary work clothes would not.  If a costume is described by the seller as “sexy” or some euphemism therefor, it is probably better saved for a non-work outing.  Bottom line: the provisions of the employer’s dress code related to appropriate attire still apply.
  • No Creepy Behavior.   Despite HR’s best efforts, some employees may wear provocative costumes to the office.  This does not give other employees license to make comments or engage in conduct that would otherwise violate the employer’s harassment or other conduct policies.  If the behavior is beyond the pale, Halloween does not provide a get-out-of-Hades-free card.
  • Stay Safe Out There. If your employees work with equipment that may impact their health or safety, extra care should be taken to ensure that costumes do not imperil employees.  Some Halloween revelers like to accessorize costumes with fake weapons; realistic-looking toys could cause legitimate fear; these should not be allowed.

If an employer utilizes these few simple tricks, the office Halloween party should be a treat, and the only stomachache a risk manager should suffer is from raiding the candy bowl.

Background

On September 27, 2021, Governor Newsom signed Senate Bill (SB) 278, which adds Government Code section 20164.5 and will go into effect on January 1, 2022. SB 278 greatly increases the potential costs to CalPERS agencies for reporting errors, by creating new and in some cases retroactive financial exposure for CalPERS agencies already struggling to fund their pension obligations. Specifically, SB 278 would shift almost all of the consequences for reporting later disallowed compensation to the employer.

For context, the Public Employees’ Retirement Law (PERL) provides a defined benefit retirement plan for public agency employees administered by CalPERS.  The Public Employees’ Pension Reform Act of 2013 (PEPRA) made changes to the categories of compensation that can be included in some employees’ retirement benefit calculation.  The statutes, regulations, and administrative guidance concerning which items are reportable are complex and can be confusing, which sometimes leads to unintended reporting errors.  In addition to the complicated regulatory scheme, the items of compensation are often the product of negotiations, which sometimes causes the parties to inadvertently negotiate criteria that makes the item non-reportable on technical grounds (e.g., adding additional criteria to qualify for the benefit that are not expressly contained in the regulations).  It is not uncommon for these issues to go back years or even decades because the language is rolled over into successor labor agreements.

Under pre-SB 278 law, if CalPERS determined that a disallowed item of compensation was included when calculating a retiree’s retirement benefit allowance, the retiree had to pay CalPERS back the amount of the overpayment, and retirement allowance payments were reduced prospectively based on what the retiree would have received if the improper item of compensation had not been included.  CalPERS generally may collect amounts that were overpaid within the last three years.  Essentially, the individual must pay back and stop receiving that which they were never entitled to in the first place.

SB 278 Transfers Almost All of the Risk of Misreported Compensation to the Employer

SB 278 requires local agencies to pay CalPERS the full cost of any overpayments made to the retiree based on the disallowed compensation and pay a 20-percent penalty of the amount calculated as a lump sum of the actuarial equivalent value of the difference between the retiree’s pension calculated with the disallowed compensation and the pension calculated without the disallowed compensation for the projected duration of the benefit.  In other words, in addition to paying CalPERS directly for any overpayments actually received and retained by the retiree, the employer must also pay a 20-percent penalty of the present value of the projected lifetime and survivor benefit.  Ninety percent of the penalty is paid directly to the retiree and 10 percent is paid as a penalty to CalPERS.  While the remedies are harsh, the version of SB 278 that was originally introduced would have required the employer to pay 100 percent of the value of the lost benefits to the retiree as a lump-sum payment or annuity.

With respect to retired members, the penalty is triggered where the following conditions are met:

  1. The compensation was reported to the system and contributions were made on that compensation while the member was actively employed;
  2. The compensation was agreed to in a memorandum of understanding or collective bargaining agreement between the employer and the recognized employee organization as compensation for pension purposes and the employer and the recognized employee organization did not knowingly agree to compensation that was disallowed;
  3. The determination by the system that compensation was disallowed was made after the date of retirement; and
  4. The determination by the system that compensation was disallowed was made after the date of retirement.

The statutory language raises several questions that will require guidance from CalPERS or may need to be litigated. First, the statute does not explain when compensation was agreed to in a collective bargaining agreement “as compensation for pension purposes.”  For example, if an item of compensation is provided in a collective bargaining agreement and reported to CalPERS, but the collective bargaining agreement is silent on whether the item is reportable to CalPERS, do those two facts in combination trigger the statute?  Prospectively, can employers avoid application of the statute by affirmatively stating in the collective bargaining agreement that no representations are made as to whether an item will be included in pension calculations unless CalPERS affirmatively confirms that the item is reportable?

Second, it is not clear how the retroactive component of the statute will be applied. The statute applies to any prospective determinations and also to determinations made on or after January 1, 2017, if the appeal rights of the retiree have not been exhausted.  A CalPERS’ determination made after the enactment of the statute could potentially apply to decades of previously misreported compensation, and in many cases would impact an entire bargaining group covered by a particular labor agreement.  Employers will likely need to argue that the statute operates only prospectively, except for unresolved ongoing appeals of determinations that were made after January 1, 2017.

Third, and similar to the retroactive issues discussed above, it is uncertain how CalPERS and courts will apply the statute to compensation that was incorrectly reported before January 1, 2022, but where CalPERS’ decision to exclude the compensation is not made until after January 1, 2022.  If the statute is interpreted to have broad retroactive effect, it may very well incentivize CalPERS to start aggressively auditing local agencies, because any unfunded liabilities for inadvertently misreported compensation would be shifted directly to the employer and compensation carrying unfunded liabilities can be removed from the books.  CalPERS also receives a portion of the prospective reduction of benefits as a penalty against the agency.  The potential combined retroactive liability and penalties for public employers could be significant – and impossible to predict.  While SB 278 has a provision for CalPERS to review labor agreements prospectively and provide guidance, the statute does not specify that CalPERS’ approval will be binding and prevent a later negative determination.

Fourth, the statute of limitations applicable to repayment is going to need to be resolved, likely through litigation.  CalPERS has taken the position in the past that the three-year statute of limitations that applies to recovery of overpayments from retirees, does not apply to collections of overpayments from employers.  SB 278 is silent on how far back collections can be pursued for overpayments on determinations that come within the statute’s reach.

For current employees, SB 278 does not make significant changes, as it allows improper contributions to act as a credit towards a public agency’s future contributions, and any contributions paid by the employee on the disallowed compensation is returned.  There are no overpayments to address because the employee has not yet retired or started receiving a retirement allowance.

What Can Public Agencies Do Now to Prepare for SB 278

In preparing for SB 278, public agencies should review all their collective bargaining agreements covering CalPERS’ members and scrutinize each item of compensation that is reported to CalPERS to ensure that the item is indeed reportable under applicable statutes, regulations, and administrative guidance.  If not, the agency should take action to correct the language or the practice that makes it non-reportable.  This will not resolve existing liability for overpayments in case of a CalPERS’ audit, but it may reduce the potential liability for future retirees.  These changes would also be subject to meet and confer requirements.  Depending on how aggressively the statutory language is applied, agencies may need to start looking at more drastic measures, such as moving away from special compensation items and to higher base salary, as the majority of these issues involve misreported items of special compensation.