On December 3, in order to slow the unprecedented rise in the rate of increase in COVID-19 cases and hospitalizations in the state, Governor Gavin Newsom announced a new Regional Stay At Home Order (the “Order”).

The Order will take effect on December 5, 2020 in any region of the state, as designated by the California Department of Public Health (“CDPH”), where intensive care unit (“ICU”) bed capacity is less than 15%. Should a region’s ICU’s bed capacity drop below that threshold, the Order would become operative, prohibiting non-essential activities by individuals and requiring that most businesses either close entirely or modify their operations to remain open.

While the Order will have a profound effect on the individuals and businesses in the regions where the Order becomes operative, the Order expressly exempts critical infrastructure sectors, which includes government operations. As a result, the Order should not affect public employers that are performing essential government operations.

Public employers should continue to ensure that worksites and facilities are healthy and safe workplaces and that employees who are able to telework are permitted to do so.  Those employees who are unable to telework shall observe all applicable health and safety protocols, including, but not limited to, observing face covering requirements, proper social distancing, and hand hygiene protocol.

Liebert Cassidy Whitmore attorneys are available to assist public employers that have any questions about the new Order.

On December 2, the Centers for Disease Control and Prevention (“CDC”) issued updated guidance concerning the recommended quarantine period for individuals following a “close contact” exposure to someone with COVID-19. The guidance reduces the recommended quarantine period from 14 days to either 10 days or seven days, depending on whether the individual tested negative for COVID-19 during the quarantine period.

The CDC guidance provides that the quarantine may end after the tenth day, so long as the individual did not present any symptoms associated with COVID-19 during the quarantine period. Additionally, the CDC provides that the quarantine may end after the seventh day if the individual was tested for COVID-19 no earlier than the fifth day following close contact exposure, the test produced a negative result, and the individual did not present any symptoms associated with COVID-19 during the quarantine period. Under both circumstances, the CDC provides that the individual must continue monitoring for symptoms associated with COVID-19 and wear a face covering through the standard 14 day quarantine period.

However, despite that the CDC revised downward its recommended quarantine period following a close contact exposure, state public health authorities, including the California Department of Public Health (“CDPH”), have not yet provided comparable guidance. The CDPH guidance currently provides that “workers should quarantine at home 14 days after the last know close contact with the case patient.”

Until such time as the CDPH revises its guidance to align with the CDC guidance, Liebert Cassidy Whitmore recommends that public agencies and nonprofits continue to adhere to the CDPH guidance and require that employees with close contact exposures observe the full 14 day quarantine period. Furthermore, local health orders may also require that individuals with close contact exposure quarantine for 14 days. As always, public agencies and nonprofits should follow the most restrictive requirements applicable in their jurisdiction.

Liebert Cassidy Whitmore attorneys are available to assist public agencies and nonprofits that have any questions about the new CDC recommendations.

This year saw perhaps the largest public protests in American history, one of the most contentious election years, vast public use of social media to achieve political and social goals, and harsh debate on whether government mandates designed to combat the pandemic infringe constitutional rights, including the right to free expression.  Free speech challenges rose to a top priority for public employers and educators, and Courts in 2021 will set groundbreaking precedent in this area.

The following are five significant areas of First Amendment law in which Courts will likely set new precedent in 2021.

  1. Public Employee Speech on Social Media:

What if an agency employee makes public statements on Twitter that harshly and unfairly criticize the agency’s response to the pandemic?  What if a police officer repeatedly jokes on Facebook that he favors harsh use of force against protestors or that he personally might not protect all members of the community in the same way?  Case law will likely develop in 2021 that clarifies when and how public employers can take action in response to such conduct, and when an employee can rely on their First Amendment rights.

Generally, public employees only have limited constitutional free speech rights against their employers.  The United States Supreme Court has ruled that public employees can sue their employers for retaliation under the First Amendment if, among other things, they spoke on a matter of “public concern,” spoke in a way that was not pursuant to their “official duties,” and suffered an “adverse employment action” as a result.  Even if the employee’s claim meets these tests, the employer can still prevail if the reasons for the adverse action satisfy a balancing test between the government interests of the employer and the speech rights of the employee.

In a pending case, Moser v. Las Vegas Metropolitan Police Department, the United States Court of Appeals for the Ninth Circuit (covering Western states including California) will likely clarify how courts should conduct the last element of the test for protection, i.e., the balancing test between government interests and employee speech rights.  In Moser, a Las Vegas police officer was shot and injured when off duty, and the Police Department several days later arrested a suspect.  Plaintiff Officer Moser, employed as a SWAT team sniper for the Department, stated on Facebook he thought it was “a shame” that the suspect “didn’t have a few holes in him.”  The Department believed the officer’s social media statement negatively impacted the agency, and it implemented a disciplinary transfer of the Plaintiff out of the SWAT position to another assignment.  He sued for infringement of his First Amendment rights.

The Ninth Circuit Court of Appeals heard oral argument on September 5, 2020 and questioning from the Court in part focused on whether an agency, to satisfy the balancing test, needed to show threatened or actual disruption of its operations.  The Court questioned counsel on why, regardless of whether co-workers or the public had complained, the employee’s statements on social media in themselves could not show the employee lacked qualification for their job or assignment and in that way tip the balance in the agency’s favor.  The Court signaled that its decision in the case might set precedent more favorable to public employers with regard to the balancing test.  The Ninth Circuit’s decision in the case will issue any day.

  1. Academic Freedom:

Public employee free speech questions take on added complexities for employees serving as college and university professors.  In the Ninth Circuit (again, the appellate judicial district including California), Courts apply a slightly different rule for First Amendment speech protection than the rule for public employees generally.  A professor’s or other educator’s speech as part of his or her “scholarship or teaching” in fact has First Amendment protection, even though it constitutes speech pursuant to the individual’s “official duties.”  (Under the landmark decision Garcetti v. Ceballos, a public employee’s speech pursuant to his or her “official duties” normally lacks First Amendment protection.)  The United States Supreme Court, however, has not decided yet whether the Ninth Circuit has correctly implemented this rule, or instead whether – as with other employee “official duties” speech – speech as part of scholarship or teaching should also lack First Amendment protection so that a public employer can freely discipline an employee for such speech.

The question may be decided in a case currently pending in the U.S. Court of Appeals for the Sixth Circuit, which covers Ohio, Michigan, Kentucky, and Tennessee.  In Meriwether v. Trustees of Shawnee State University, a professor of political science and philosophy alleges that he received a written warning in violation of his First Amendment rights after he struggled in class to interact with a transgender student who asked him to address her in class by her appropriate gender pronoun.  Meriwether argues that his sincerely held Christian beliefs precluded him from referring to the student as “she” or “her.”  The university enforced the applicable non-discrimination policy against the professor, taking the position that he had created a hostile environment in his class for the transgender student.  Meriwether argued his own free speech rights prevented the university from disciplining him.  The trial court, however, rejected his claims and dismissed his complaint, reasoning that the gender pronouns by which he addressed his students in class constituted speech pursuant to his “official duties” for the university, and thus lack First Amendment protection.  On appeal, Meriwether has argued that the same rule applicable in California should apply in Ohio, in particular, that he in fact has free speech rights as part of his “scholarship” and “teaching.”

Once the Court of Appeals for the Sixth Circuit issues its decision in this case, the U.S. Supreme Court might take this case as an opportunity to clarify the law in this area and resolve the issue of whether the rule applicable in the Ninth Circuit, i.e., in California, is correct.  Meriwether has the support of a number of religious liberties groups, and his case has gained notoriety.  This may persuade the U.S. Supreme Court to take up the case to resolve the issue.

  1. Student Speech:

School districts, community college districts, and other public educators often face First Amendment issues when they seek to discipline students who post on social media inflammatory racist, sexist, homophobic, threatening, or otherwise cruel and injurious content.  Under the law federal courts have developed in the Ninth Circuit and a number of others, Courts look to whether the student’s expression has a sufficient “nexus” to the school, in particular whether it creates a disruption or threat of disruption that has a sufficient negative effect on the school’s operations.

The United States Court of Appeals for the Third Circuit, covering Pennsylvania and nearby states, has recently departed from this line of authority.  The Third Circuit has a track record of pro-free speech decisions in the context of education.  In two prominent cases from 2011, J.S. ex rel. Snyder v. Blue Mountain School District and Layshock ex rel. Layshock v. Hermitage School District, that Court ruled that constitutional protection applied to puerile and profane social media speech by students, even when it harshly mocked faculty and school administrators.  (Unlike for public employees, public school student speech does not need to be on a matter of “public concern” to have First Amendment protection.)

In the 2020 case B.L. v. Mahony Area School District, the Third Circuit held, as a matter of first impression, that existing legal rules which allow schools to punish students for sufficient actual or threatened disruption of the learning environment do not apply at all to “off-campus speech.”  The Court described this as “speech that is outside school-owned, -operated, or -supervised channels and that is not reasonably interpreted as bearing the school’s imprimatur.”  This definition appears to include much student speech that occurs on social media, even if it impacts the school’s operations.

In B.L., the student, frustrated at her lack of ability to advance in cheerleading, posted a short vulgar post to Snapchat dismissive of “school” and “cheer.”  The Third Circuit found that the post, created off campus on a Saturday, could not as a matter of constitutional law expose the student to discipline by the school district.  The school district, having lost the case at the appellate level, has asked the U.S. Supreme Court to review the case, arguing that the rule the Third Circuit has created is too extreme, and does not allow educators enough control over the educational environment.  Many organizations have joined in amicus curiae (i.e., “friend of the court”) briefing to urge the Supreme Court to take up the case.  There seems to be a fair prospect that the Court will in fact take this opportunity to clarify this area of the law.

  1. Speech Areas and Speech Codes on College and University Campuses:

A case pending before the U.S. Supreme Court will shed light on how easily students, employees, and members of the public can make First Amendment challenges to policies in educational institutions.  The opinion will have particular importance for institutions maintaining more stringent policies on “speech areas” or maintaining “speech codes.”

By way of background, some public higher education institutions maintain specific areas on campus where students, employees, and member of the public can engage in such activities as protests, leafleting, circulating petitions, and gatherings for other expressive purposes.  Courts have held, however, that public colleges and universities cannot maintain areas so small and remote that users of the areas cannot reach a sufficiently large audience.  Courts have also invalidated policies that impose many-day wait periods to gain access to the speech area or requiring substantial registration and approval processes prior to use.

“Speech codes” constitute campus rules that seek to avoid conflict and foster collegiality.  For example, they can prohibit students, faculty, and others from engaging in “offensive,” “un-civil,” or “harmful” speech.  Courts have struck down vague language and overbroad requirements in such codes as violating the First Amendment, reasoning that free expression on campus needs breathing space, that some protected expression does in fact lack civility because of the emotions invoked by many important issues, and that the speech codes overall present a chilling effect on free speech.

For someone to make a legal challenge a speech area policy or speech code however, they must have standing to sue.  To have standing, they must generally show they have suffered some type of injury and that their lawsuit will make a difference by correcting a deficient policy or practice of the institution.

The U.S. Supreme Court has taken up an important case, Uzuegbunam v. Preczewski, from Georgia in the Eleventh Circuit Court of Appeals, which will address when and how students have standing to challenge university and college policies.  In practice, some institutions, faced with a lawsuit by plaintiffs who claim that speech codes are improper or that speech area policies are invalid, will simply change the policies and make them more expansive.  Courts will, under the appropriate circumstances, then dismiss the lawsuits as moot, delivering a victory to the educational institution even though the institution may actually have had a constitutionally invalid policy in place.

This is what allegedly happened in the Uzuegbunam case.  A student sought to distribute religious literature and talk to his fellow students about religion outside the free speech areas at their university.  A campus official stopped him from doing so, citing the speech area policy.  Faced with a lawsuit by this student and another who sought to use the speech areas, the university changed the policy to make it broader.  Also, one of the students graduated.  The university moved to dismiss the case as moot, and the trial court granted the motion.  The Court of Appeals found no error, reasoning that that case was moot, and that the plaintiffs’ claims for nominal damages did not constitute a sufficient reason to keep the case alive.  As the losing parties, the plaintiffs could not obtain their attorneys’ fees from the university, even though they and their lawyers could potentially argue that the threat of a lawsuit was what really made the institution change its policies.  In asking the Supreme Court to review the case, plaintiffs argued, as they often do in these cases, that nothing will stop the university from reinstituting the same strict policies years later when the students had gone and no longer have standing to make a legal challenge.

The U.S. Supreme Court will hear argument in the case in 2021, and may issue a ruling that makes it easier for students to sue public colleges and universities, obtain attorneys’ fees awards, and obtain declaratory and injunctive relief.

  1. Social Media Platforms and Government-Hosted Speech:

The last year has seen extensive public debate on how far the right to censor should extend on social media, with some contending social media platforms suppress conservative views and some contending they do not do enough to combat hate speech and misinformation.  Case law will develop in 2021 further clarifying how the First Amendment applies both to the private companies that own and operate social media platforms and the government agencies that host speech on their own pages on those platforms.  Courts have applied different rules in these two contexts.

As to the private social media platforms, civil rights lawyers representing individuals who have posted content later removed by Facebook, Twitter, or YouTube, or who have been blocked by those sites, have argued that social media has such a prominent role in the everyday lives of the public that the First Amendment must provide users some protection from having views censored.  It is a fundamental rule of constitutional law, however, that the First Amendment does not apply to private companies, and the major social media organizations are all private.

Some fairly obscure precedent exists (for example, a  case from the 1940’s, Marsh v. Alabama, involving a privately owned “company town”) which establishes that sometimes the First Amendment does, in fact, extend to private actors.  But the U.S. Court of Appeals for the Ninth Circuit in California rejected that notion for social media in the case Prager University v. Google decided earlier this year.  Prager University did not seek review in the U.S. Supreme Court, but another case against social media companies, Lewis v. Google, is currently pending before the Ninth Circuit, and the plaintiff in that case, a political commentator removed from YouTube for controversial views, has asserted similar First Amendment theories.  The plaintiff may seek to present the issue to the U.S. Supreme Court, and litigants in other circuits may do so as well.

Having the First Amendment apply to social media companies, who have vast social and financial scope, would have far reaching consequences.  It remains an issue to watch, among other reasons for how Courts’ decision making will affect related areas.

Indeed, an important related area is whether and how the First Amendment applies to government-hosted commentary on social media.  Courts have begun to apply First Amendment strictures to government agencies that have their own presence on social media, albeit on platforms of private companies.  Examples include Facebook pages by police departments, or Twitter accounts by public universities.  A number of Courts have held that government actors have to abide by First Amendment standards in decisions whether to censor public comments or block users.  This constitutional rule limiting censorship applies even though those government agencies have to abide by the private social media company’s terms and conditions, which could in theory and under existing law, have restrictions incompatible with First Amendment norms.

The United States Supreme Court may weigh in next year on this issue of how the First Amendment applies to government-hosted social media.  The most notorious case of this nature is Trump v. Knight Institute, in which the Second Circuit Court of Appeals, which encompasses New York, held that President Trump violated the First Amendment by blocking some of his critics from access to his Twitter account.  The Court found that the public comment part of the account constituted a public forum in cyberspace, to which First Amendment free speech principles did apply.  The President has filed a petition for writ of certiorari with the U.S. Supreme Court, and the Court may indicate any day whether it has decided to hear the case.

Our firm regularly handles matters concerning free speech rights in education and public employment, and we will keep you apprised of developments in this area.

On November 19, 2020, pursuant to emergency rulemaking authority, the California Occupational Safety and Health Standards Board (“OSHSB”) adopted temporary regulations regarding measures that all employers must undertake in order to prevent the spread of COVID-19 in the workplace (“emergency regulations”).

The emergency regulations take effect today, November 30, 2020, and apply to all employers and places of employment, with very limited exceptions (such as businesses where all employees work remotely, or only one employee is employed who does not have contact with others).[1] Therefore, schools and colleges must take immediate action to ensure that their policies and practices conform to and comply with the new regulations. Most significantly, employers must prepare, implement, and maintain a written COVID-19 Prevention Program (“CPP”), as described below.

The emergency regulations supplement general and industry-specific guidance that the Division of Occupational Safety and Health (“Cal/OSHA”) has provided since the beginning of the present public health emergency.

 COVID-19 Prevention Program

School and community college districts are already required to implement many of the protocols in the COVID-19 Prevention Program, such as screening employees for COVID-19 symptoms, adopting physical distancing measures, requiring face coverings, cleaning and disinfecting procedures, and communicating to employees when there has been possible exposure to COVID-19 in the workplace.  However, the regulations require that the CPP include and address many other very specific issues.

In summary, the CPP must address each of the following eleven (11) subjects:

1) System for communicating to employees about the following subjects related to COVID-19:

(a) the symptoms associated with COVID-19;
(b) possible exposures;
(c) potential hazards related to COVID-19:
(d) the policies and procedures for providing COVID-19 related accommodations;
(e) information about COVID-19 testing.

2) Identification and evaluation of COVID-19 related hazards, including developing and implementing a system that provides for the following:

    • screening employees for symptoms associated with COVID-19;
    • responding to employees who present symptoms associated with COVID-19;
    • responding to individuals and employees who are present at the workplace who are positive for COVID-19; conducting an assessment of potential workplace hazards, such as areas where people congregate.

3) Investigating and responding to COVID-19 cases in the workplace, including developing a procedure that provides for the following:

      • the investigation of COVID-19 cases;
      • the determination of important information about possible workplace exposures related to the COVID-19 case;
      • the provision within one (1) business day of notice to employees who may have been exposed to the virus that causes COVID-19 (as required by Assembly Bill 685);
      • offer free COVID-19 testing to all employees who had potential exposure to the virus; and
      • the preservation and protection of confidential medical information pursuant to the Confidentiality of Medical Information Act (“CMIA”).

4) Correcting COVID-19 related hazards, including implementing policies and procedures to timely address unsafe or unhealthy workplace conditions.

5) Training of and instruction for employees, including on the following subjects:

(a) the symptoms associated with COVID-19;

(b) the school’s COVID-19 prevention policies and procedures;

(c) COVID-19 related benefits, including leaves rights;

(d) information about the transmission of the virus that causes COVID-19;

(e) information about physical distancing and the benefits of physical distancing;

(f) information about face coverings and the benefits of face coverings; and

(g) information about hand washing and hand hygiene and the benefits of hand washing and hand hygiene.

6) Physical distancing requirements and procedures to ensure that employees remain at least six (6) feet apart from one another, if possible.

7) Face covering requirements and the availability of face coverings for employees.

8) Site-specific engineering and administrative controls and procedures for the provision of personal protective equipment (“PPE”), including, but not limited to, the following:

(a) installing partitions between work stations where it is not possible to maintain the physical distancing requirement;

(b) increasing the supply of fresh air where possible;

(c) implementing cleaning and disinfecting procedures;

(d) evaluating the availability and adequacy of  handwashing locations; and

(e) evaluating the need for additional PPE.

9) Reporting, recordkeeping, and providing access to such reports and records, including the following:

  • reporting cases of COVID-19 to the local health department;
  • reporting disabling work-related COVID-19 illnesses to Cal/OSHA;
  • maintaining records of the steps that the school undertook to implement the CPP;
  • providing employees access to the CPP;
  • recording and tracking all COVID-19 cases with identifying information about the employee; and
  • providing employees access to the records of COVID-19 cases with identifying information removed.

10) Removal from worksites and facilities individuals who have COVID-19 or were exposed to the virus that causes COVID-19. 11) Minimum criteria to return to work for employees who have COVID-19.

The descriptions provided above summarize the information that schools must provide for in their CCPs, but are not a comprehensive summation of the regulatory requirements.

Significant Changes in the Law

Schools and colleges should take note the following regulatory requirements, which are likely to be new for most districts:

  • Districts must offer COVID-19 testing at no cost to employees, during their working hours, to all employees who had a potential COVID-19 exposure in the workplace.  The regulations define potential COVID-19 exposure as being within six (6) feet of a positive COVID-19 case (with or without a face covering) for a cumulative total of 15 minutes or greater in any 24 hour period within or overlapping with the “high-risk exposure period.”  The regulations define the “high-risk exposure period” as the following:
    • For persons who develop COVID-19 symptoms, the two (2) days before the symptoms develop until 10 days after symptoms first appeared, and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
    • For persons who test positive for COVID-19 and never develop symptoms: from two (2) days before until 10 days after the specimen for their first positive test was collected.
  • Districts must continue to provide compensation to employees who may not report to work because they have COVID-19 or are under an isolation order issued by a local or state health official. While this requirement effectively constitutes a new leave benefit, the regulations expressly provide that employers may use an employee’s sick leave for this purpose.  The regulations do not address whether employers may require employees to use Emergency Paid Sick Leave, as provided for by the Families First Coronavirus Response Act (“FFCRA”).
  • Districts may not require a negative COVID-19 test for an employee to return to work.  However, the regulations do not prohibit schools from testing employees at regular intervals for COVID-19 consistent with California Department of Public Heath recommendations.

Protocol Where There are COVID-19 Outbreaks and Major Outbreaks

While not required as part of the CPP, the emergency regulations separately require that employers implement the following protocols in the event the there is a COVID-19 “outbreak” in the workplace, consisting of three (3) or more positive cases in a 14-day period:

    • Provide testing (immediately and one (1) week later) at no-cost to all employees who were present at the workplace during the outbreak period;
    • Require that all employees with COVID-19 and who were exposed to the virus that causes COVID-19 do not report to work for the requisite period of time;
    • Investigate the exposure, review the district’s prevention and outbreak control policies, and take corrective action as needed;
    • Document the district’s investigation of the exposure, policy review, and any corrective actions taken; and
    • Notify the local health department within 48 hours after knowledge of the outbreak.

The regulations also require employers implement additional protocols if there is an outbreak of 20 or more COVID-19 cases within a 30-day period until there are no new cases for a 14-day period, including conducting twice-weekly testing and evaluating whether respiratory protection should be required and whether the employer’s operations should cease.

 Conclusions

Given that the emergency regulations took effect today, November 30, employers must immediately adopt and implement a CPP that complies with the regulations. Liebert Cassidy Whitmore drafted a template CPP that school and community college districts may adopt and customize in order to establish compliance with the requirements in the emergency regulation. To accompany the template, Liebert Cassidy Whitmore also drafted a guide that identifies specific obligations under the regulation so that schools may more easily identify existing district policies and practices that require modification.

Liebert Cassidy Whitmore is making the CPP template and associated guide available for purchase for consortium members and non-consortium members.

Liebert Cassidy Whitmore attorneys are available to assist schools that have any questions or concerns about the CPP or other aspects of the emergency regulations.

[1] The Office of Administrative Law (“OAL”) is expected to approve the regulations after the requisite 10 day review period.

On November 19, 2020, pursuant to emergency rulemaking authority, the California Occupational Safety and Health Standards Board (“OSHSB”) adopted temporary regulations regarding measures that employers must undertake in order to prevent the spread of COVID-19 in the workplace (“emergency regulations”).

The emergency regulations, which will likely take effect on November 30, 2020, apply to public agencies.[1] Therefore, public agencies must take immediate action to ensure that their policies and practices conform to and comply with the new regulations. Most significantly, public agencies must prepare and implement a written COVID-19 Prevention Program (“CPP”), as described below.

The emergency regulations supplement general and industry-specific guidance that the Division of Occupational Safety and Health (“Cal/OSHA”) has provided since the beginning of the present public health emergency.

COVID-19 Prevention Program

As provided above, the most significant requirement under the newly adopted emergency regulations is that public agencies must prepare, implement, and maintain a written COVID-19 Prevention Program (“CPP”). This will be a burdensome and time-consuming undertaking given the voluminous regulatory requirements concerning subjects that the CPP must address.

In summary, the CPP must address each of the following eleven (11) subjects:

  • System for communicating to employees about the following subjects related to COVID-19: (1) the symptoms associated with COVID-19; (2) possible exposures; (3) potential hazards related to COVID-19: (4) the policies and procedures for providing COVID-19 related accommodations; and (5) information about COVID-19 testing.
  • Identification and evaluation of COVID-19 related hazards, including developing and implementing a system that provides for the following: (1) screening employees for symptoms associated with COVID-19; (2) responding to employees who present symptoms associated with COVID-19; (3) responding to individuals and employees who are present at agency worksites and facilities who are positive for COVID-19; and (4) conducting an assessment of potential workplace hazards, such as areas where people congregate. Furthermore, the regulations require that public agencies allow employee organizations to participate in the process of identifying and evaluating COVID-19 related hazards.
  • Investigating and responding to COVID-19 cases in the workplace, including developing a procedure that provides for the following: (1) the investigation of COVID-19 cases; (2) the determination of important information about possible workplace exposures related to the COVID-19 case; (3) the provision within one (1) business day of notice to employees who may have been exposed to the virus that causes COVID-19 (as required by Assembly Bill 685); (4) offer free COVID-19 testing to all employees who had potential exposure to the virus; and (5) the preservation and protection of confidential medical information pursuant to the Confidentiality of Medical Information Act (“CMIA”).
  • Correcting COVID-19 related hazards, including implementing policies and procedures to timely address unsafe or unhealthy workplace conditions.
  • Training of and instruction for employees, including on the following subjects: (1) the symptoms associated with COVID-19; (2) the agency’s COVID-19 prevention policies and procedures; (3) COVID-19 related benefits, including leaves rights, that may be available to agency employees; (4) information about the transmission of the virus that causes COVID-19; (5) information about physical distancing and the benefits of physical distancing; (6) information about face coverings and the benefits of face coverings; and (7) information about hand washing and hand hygiene and the benefits of hand washing and hand hygiene.
  • Physical distancing requirements and procedures to ensure that employees remain at least six (6) feet apart from one another, if possible.
  • Site-specific engineering and administrative controls and procedures for the provision of personal protective equipment (“PPE”), including, but not limited to, the following: (1) installing partitions between work stations where it is not possible to maintain the physical distancing requirement; (2) increasing the supply of fresh air where possible; (3) implementing cleaning and disinfecting procedures; (4) evaluating the availability and adequacy of  handwashing locations; and (5) evaluating the need for additional PPE.
  • Reporting, recordkeeping, and providing access to such reports and records, including the following: (1) reporting cases of COVID-19 to the local health department; (2) reporting disabling work-related COVID-19 illnesses to Cal/OSHA; (3) maintaining records of the steps that the public agency undertook to implement the CPP; (4) providing employees and employee organizations access to the CPP; (5) recording and tracking all COVID-19 cases with identifying information about the employee; and (6) providing employees and employee organizations access to the records of COVID-19 cases with identifying information removed.
  • Removal from agency worksites and facilities individuals who have COVID-19 or were exposed to the virus that causes COVID-19.
  • Minimum criteria to return to work for employees who have COVID-19.

The descriptions provided above summarize the information that public agencies must provide for in their CCPs, but are not a comprehensive summation of the regulatory requirements.

Public agencies that previously adopted and implemented a COVID-19 response plan, should review such plan to ensure that it complies with the expanded obligations to which public agencies are subject under the emergency regulations.

Significant Changes in the Law

Public agencies should take note the following regulatory requirements, which are likely to be new for most agencies:

  • Public agencies must offer COVID-19 testing at no cost to employees, during their working hours, to all employees who had a potential COVID-19 exposure in the workplace.
  • Public agencies must continue to provide compensation to employees who may not report to work because they have COVID-19 or are under an isolation order issued by a local or state health official. While this requirement effectively constitutes a new leave benefit, the regulations expressly provide that public agencies may use employee sick leave for this purpose.
  • Public agencies may not require a negative COVID-19 test for an employee to return to work.

Protocol Where There are COVID-19 Outbreaks and Major Outbreaks

While not required to be incorporated as part of the CPP, the emergency regulations also require that public agencies implement the following protocols in the event the there is a COVID-19 “outbreak” in the workplace, consisting of three (3) or more positive cases in a 14-day period:

  • Provide testing (immediately and one (1) week later) at no-cost to all employees who were present at the workplace during the outbreak period;
  • Require that all employees with COVID-19 and who were exposed to the virus that causes COVID-19 do not report to work for the requisite period of time;
  • Investigate the exposure, review the agency’s prevention and outbreak control policies and take corrective action as needed;
  • Document the agency’s investigation of the exposure, policy review, and any corrective actions taken; and
  • Notify the local health department within 48 hours after knowledge of the outbreak.

The regulations also require public agencies implement additional protocols if there is an outbreak of 20 or more COVID-19 cases within a 30-day period until there are no new cases for a 14-day period, including conducting twice-weekly testing and evaluating whether respiratory protection should be required and whether the employer’s operations should cease.

Conclusions

Given that the emergency regulations will likely take effect on November 30, public agencies must immediately adopt and implement a CPP that complies with the regulations. On November 30, Liebert Cassidy Whitmore created a template CPP available for purchase.  Agencies that purchase this template CPP will be able to modify and customize the template to address specific agency policies and practices.

LCW Consortium members may purchase the template CPP here.  The template CPP for Non-Consortium members is available for purchase here.

Liebert Cassidy Whitmore attorneys are available to assist public agencies that have any questions or concerns about the CPP or other aspects of the emergency regulations.


[1] The Office of Administrative Law (“OAL”) is expected to approve the regulations after the requisite 10 day review period.

On November 16, 2020, in response to significant increases in the incidence rates of COVID-19 in the state, the California Department of Public Health (“CDPH”) issued updated guidance concerning the use of face coverings. The updated guidance requires that individuals wear a face covering at all times when outside of the home unless one of the eleven (11) enumerated exemptions applies. Unlike other guidance issued by the CDPH that is advisory in nature, the guidance concerning face coverings is mandatory.

The updated guidance is significantly more prescriptive and the exemptions are more narrowly tailored than prior guidance from CDPH concerning the use of face coverings.

For example, the updated guidance provides a limited exemption to “[p]ersons who are working in an office or in a room alone”. Prior guidance only required that individuals wear a face covering when working “in any room or enclosed area where other people are present when unable to physically distance.” As a result, public agency employees whose workstations/cubicles are in an area with an open floor plan are likely subject to the face covering requirement while working at their workstations unless their work station/cubicle is in a room where they are alone.

Public agencies should consider how they intend to address the updated guidance. Public agencies may consider notifying employees and employee organizations about the CDPH guidance and revising agency protocols for the use of face coverings by agency employees and at agency worksites and facilities.

Public agencies must comply with the CDPH requirements provided for in the updated guidance. Should an agency not comply with the guidance, the CDPH possesses statutory authority to commence an action to enforce its regulations, enjoin or abate nuisances dangerous to public health, and to compel the performance of an act relating to public health.

If you have questions about this guidance and how it may affect your agency’s operations, LCW attorneys are available to answer your questions.

Our clients frequently face questions about how immigration laws and policies apply to their employees, candidates, and students.  The world of immigration law can be a bewildering jumble of acronyms, statutes, regulations, and policy directives that leave many employers or school administrators exasperated and with whiplash.  As practitioners in labor, employment, and education for our California-based public agencies, non-profit and educational institutions, we can help navigate the employment and education issues that immigration matters present, but we do not represent employers or institutions directly in immigration proceedings.  Following is an excerpt of FAQ’s about immigration laws or policies that may impact our clients.

Question:  During COVID-19, we are working remotely, but we are still hiring.  How do we check an incoming employee’s identity and work authorization documentation to complete the I-9 Employment Eligibility Verification Form?

Answer:  Employers are required to verify an employee’s identity and authorization to work in the United States by completing Form I-9 within 3 business days of employment.  Typically, the employee produces the required documents in person, and a trained staff member at the agency verifies the documents and completes the form.  In light of COVID-19, in March 2020, the United States Immigration and Customs Enforcement (ICE) issued revised guidance, allowing employers to review the documents remotely if the workforce is working remotely for social distancing purposes.  In those cases, the employer must use videoconference to verify identity and review the proffered documents, and also must receive the documents electronically.  On November 18, 2020, ICE extended this procedure to December 31, 2020. https://www.ice.gov/news/releases/ice-announces-extension-i-9-compliance-flexibility-0

Question:  Our employee’s Employment Authorization Document (EAD) is set to expire. They filed for renewal months ago, but processing is delayed across the nation.  What are the options?

Answer:  It depends.  If the employee has received an Approval Notice that their application or renewal was approved, but the employee is just waiting for the formal Employment Authorization Document, CIS has announced that the employer can accept the Approval Notice as a temporary employment authorization, to December 31, 2020.  Certain conditions apply, and the guidance is subject to change.

Alternatively, employees whose employment authorization is based on special circumstances (including, but not limited to asylee or refugee status or protection under the Violence Against Women Act (VAWA)) may be eligible for an automatic 180-day extension of their employment authorization.  https://www.uscis.gov/working-in-the-united-states/information-for-employers-and-employees/automatic-employment-authorization-document-ead-extension

Many employees, however, may have a lapse in their ability to demonstrate their eligibility for employment in the United States.  Employers facing this situation should seek legal counsel to determine the options, which can be complicated under the agency’s personnel rules or applicable collective bargaining agreement.

Question:  I read somewhere that changes are afoot for H1B petitions.  What’s the latest?

Answer:  Some of our clients employ or consider employing individuals pursuant to an H1B visa, a specialized nonimmigrant visa for qualified skilled workers.  On October 8, 2020, the Department of Homeland Security (DHS) released a fast-tracked set of changes to the H1B visa program in an Interim Final Rule in the Federal Register.  In doing so, the Department did not follow the standard regulatory process with a full public notice period.

Accordingly, the following changes (among others) are scheduled to take effect on December 6, 2020, to apply to new H1B petitions and extensions and transfers of H1B petitions:

  • Refine the application of “specialty occupation” to require that the position is directly related to the employee’s educational degree.
  • Change the maximum duration of the visa from 3 years to 1 year, for petitions filed by a third-party entity.

These changes could significantly impact an individual’s or employer’s plans if they were relying on the current H1B procedures.  If your agency employs or is considering employing individuals through an H1B visa, your Human Resources team should seek legal assistance.  Also, please note that public comment is still open on this matter, if you are interested in submitting by December 6, 2020: http://www.regulations.gov; DHS Docket No. USCIS-2020-0018.

Question:  A student from outside the United States applied to our independent school and would need a student (F-1) Visa to attend.  Where can the School learn more about international students?

Answer:  Schools can become authorized to enroll international students in F visa status through the School Educational Visitor Program (SEVP), administered through DHS’s Immigration and Customs Enforcement (ICE).  An overview of the program is available here: https://www.ice.gov/sevis/schools.  If a school is considering participating, we recommend contacting legal counsel specializing in immigration law.

We hope after reading these FAQs you understand you’re not alone if you have immigration-related questions as an employer or educational institution.  We invite you to contact us at LCW when these questions arise so we can help assess the issues and connect you with further resources as needed, ASAP.

We are excited to continue our video series – Tips from the Table. In these videos, members of LCW’s Labor Relations and Collective Bargaining practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

 

We are thrilled to present and sponsor the 2020 Community College League of California Annual Convention taking place virtually this week (November 17 – 20)!  Don’t miss our eight scheduled conference presentations by our expert speakers.  Topics include return to campus issues, layoffs, negotiating in stressful budgetary times, and much, much more.

November 17

12:30pm – 1:15pm || Policies Through a DEI Lens – Eileen O’Hare-Anderson and Laura Schulkind

1:30pm – 2:15pm || Return to Campus Issues – The Learning Place in Transition – Kristin Lindgren and Meredith Karasch

1:30pm – 2:15pm || From Non-Discrimination to Anti-Racism – How Equity and Access Have Changed – Laura Schulkind

November 18

12:30pm – 1:15pm || Affirmative Action in a Post-ACA 5 Academic Environment – Eileen O’Hare Anderson and Laura Schulkind

1:15pm – 1:30pm || But I Don’t Want to Come Back to the Office! – Alysha Stein-Manes

November 19

12:30pm – 1:15pm || Layoffs: They Are Coming, Are You Ready? – Melanie Chaney and Eileen O’Hare-Anderson

1:30pm – 2:15pm || Negotiating in Difficult Budgetary Times – Melanie Chaney and Eileen O’Hare-Anderson

November 20

1:30pm – 2:15pm || Town Hall – Legal Eagles – Eileen O’Hare-Anderson, Laura Schulkind, Pilar Morin and Kristin Lindgren

Learn more about the Community College League of California Annual Convention here. 

We are pleased to present and sponsor the 2020 Annual CALPELRA Conference taking place virtually this week (November 16 – 20)!  Don’t miss our nine scheduled conference presentations by our expert speakers.  Topics include negotiating in difficult times, telecommuting issues, public safety disability accommodations, and much, much more.

November 16

10:15am – 11:00am || The Independent Contractor Compliance Review: Overlapping Issues & Legal Compliance – Elizabeth Tom Arce and Melanie Chaney

November 17

2:00pm – 3:30pm || Layoffs, Furloughs, and Concessions: Navigating & Negotiating During Financially Challenged Times – Shelline Bennett and Richard Bolanos

3:45pm – 4:30pm || Negotiating Retirement and Health Benefits in Tough Economic Times – Steven Berliner and Jack Hughes

November 18

10:15am – 11:00am || Managing Public Safety Employee Injuries and Illnesses: Navigating The Interactive Process, Labor Code 4850 and Similar Laws So That They Can Either Be Returned To Work Or Retired – J. Scott Tiedemann and Jennifer Rosner

11:15am – 12:00pm || Telecommuting Policies: Hot Topics & Key Issues to Consider – Oliver Yee

November 19

2:00pm – 3:30pm || Essential FLSA Update for 2020 and Anticipated Critical Issues for 2021 – Brian Walter and Lisa Charbonneau

3:45pm – 4:30pm || Meet & Confer Obligations During An Emergency: Lessons Learned From COVID-19 & Preparing For The Next Crisis – Peter Brown and Che Johnson

November 20

8:30am – 10:00am || Labor Relations Game Show! – J. Scott Tiedemann and Laura Drottz Kalty

8:30am – 10:00am || Recent Developments in Public Sector Labor and Employment: a National Perspective – Peter Brown and Will Aitchinson

Learn more about the CALPELRA Conference here.