Does anyone want to hear about the potential for a COVID-19 winter surge? Probably not. Unfortunately, experts warn that a surge is possible. The Centers for Disease Control and Prevention (“CDC”) warns about new immunity-evading Omicron subvariants, BQ.1 and BQ.1.1. CDC models show that these new variants, which just a few weeks ago accounted for no new COVID-19 cases, now make up a significant percentage of all new infections.

However, we have guided employers through several COVID-19 surges and know effective tips to keep your workforce healthy and safe.

  1. Prioritize Vaccines and Boosters

One of the best tools to combat COVID-19 in the workplace is to encourage employees to stay up-to-date on their COVID-19 vaccinations and booster shots. All adults who have received their primary round of COVID-19 vaccine shots are now eligible for booster shots.

Current Vaccines and booster shots have been developed to better protect against evolving COVID-19 variants. Previous booster shots were “monovalent,” meaning they just included one component of the original COVID-19 strain. However, current boosters are “bivalent,” and include components of the original COVID-19 strain as well as components of the Omicron variant. The California Department of Public Health (“CDPH”) provides information about the different approved booster shots. The CDPH also provides a helpful chart about when to receive primary and booster shots here.

Employers should consider encouraging their employees to receive the newly developed bivalent COVID-19 booster shot, which specifically targets the Omicron variant. The percentage of the population who has received this updated booster shot is extremely low. For example, only 8% of eligible LA County residents have received the updated bivalent booster dose.

One of the best ways to encourage employees to become fully vaccinated and boosted is to provide them with information about the primary vaccines and booster shots, and how they can schedule an appointment. Employers may also remind employees that they can use COVID-19 Supplemental Paid Sick Leave (“SPSL”), discussed below, to attend a vaccine appointment. Even if employees exhaust their SPSL allotments and other forms of paid leave, employers may consider providing their employees with paid administrative leave to attend a vaccine appointment.

  1. Inform Employees About Sick Leave Options

Supplemental Paid Sick Leave

Employers should encourage employees who are sick or symptomatic to stay at home to reduce the risk of employees transmitting the virus in the workplace. One of the most effective ways to do this is to provide employees with information and resources about the available paid leaves should they develop symptoms associated with COVID-19 or contract COVID-19.

In September 2022, Governor Newsom signed into law a bill that extended the 2022 version of COVID-19 Supplemental Paid Sick Leave (“SPSL”) to December 31, 2022. As a result, all employers with 26 or more employees must continue to provide employees up to 80 hours of SPSL for employees who cannot work or telework because of COVID-19.

You can read more about SPSL here, as well as the September 2022 updates to SPSL here.

Paid Sick Time & Paid Administrative Leave

If employees exhaust their SPSL allotment, they are still entitled to access and utilize accrued paid sick leave. Employers should remind employees of the amount of paid sick leave that they have available and encourage employees to use such paid sick leave if they are sick or presenting symptoms associated with COVID-19, rather than come to work.

For employees who have exhausted all of their SPSL and all of their paid sick leave, employers have a couple options that they may want to consider: (1) provision of “negative accrual” of paid sick leave; and (2) provision of paid administrative leave.

Employers may consider allowing employees to accrue negative sick leave balances. In this situation, employees may take sick leave, and then work to repay the leave in subsequent pay periods. Alternatively, employers may consider offering paid administrative leave to employees who have exhausted all SPSL and paid sick time to ensure that sick employees do not come to the workplace.

Providing employees information about the leave to which they are entitled and considering options for the provision of discretionary paid leave will help prevent outbreaks in the workplace.

  1. Remember Preventative Measures

At this point, we all know tips to keep the potential COVID-19 surge at bay, and how to address surge concerns once COVID-19 numbers begin to rise. Here are reminders about effective preventative measures employers may consider:

  • Wear a well-fitting mask with good filtration, especially while indoors and while community rates are high.
  • When possible, hold meetings and calls in large areas with ample ventilation, or remotely by teleconferencing software like Zoom or Teams. If such meetings must be held in person, encourage employees to wear their masks.
  • Are the workspaces in your workplace six feet apart? Employers should consider workspace layout to ensure that employees working in the same area and sharing the same air space are not in prolonged close proximity to one another.
  • Is there proper ventilation? Employers should consider engineering changes to ensure that clean filtered air circulates in workspaces.
  • Consider staggering start and end times so employees are not in the same area at once.
  • Consider a temporary switch back to remote work schedules for employees who can work remotely. (Ensure that you have a remote work agreement in place.)
  • Encourage employees to test regularly. Consider having tests available for employees on-site.
  • Above all, encourage your workforce to stay home if they feel sick.
  1. Know About New COVID-19 Notice Requirements

Employers should be also aware that on January 1, 2023, statutory changes to the COVID-19 workplace notice requirements take effect. LCW issued a special bulletin with more information about these changes, which can be viewed here.

If there is another COVID-19 surge this winter, trusted legal counsel are available to assist employers with any COVID-19 related questions and information about how to prepare for a potential outbreak.

On September 27, 2022, California Governor Newson signed Senate Bill 1162, which is California’s new pay transparency and pay data disclosure law.

 

This new law will require nearly 200,000 California companies with 15 or more employees to include pay ranges in all job postings and advertisements, effective January 1, 2023. Also, private employers with 100 or more employees must submit pay data reports to the California Civil Rights Department, formerly known as the Department of Fair Employment and Housing, by May 10, 2023, and annually thereafter on the second Wednesday in May.

The intent of the law is to promote pay equity with an eye toward closing the wage gap between women and men—particularly minority women. Failure to comply with this new law could result in various civil penalties.

 

Pay Scale Disclosures for Applicants

Although most public employers routinely disclose pay scales in job postings, the new law requires both private and public employers with 15 or more employees to post the pay scale in their job postings. For purposes of this law, “employee” is defined as an individual on an employer’s payroll and includes part-time individuals. Also, third parties posting on behalf of these employers will need to post the pay range.  Pay scale is defined as the salary or hourly wage range that the employer reasonably expects to pay for the position. Although the benefits and other forms of compensation are not included in the definition of “pay scale,” employers may include that information in order to attract applicants.

 

A notable way Senate Bill 1162 changes the law is that, before its enactment, applicants were permitted to request the pay scale for a position after the initial interview. Now, upon reasonable request, any applicant is entitled to this information before completing the initial interview.

 

Pay Scale Disclosures for Current Employees

All covered employers, regardless of the number of employees, upon request, are required to provide an employee with the pay scale for their current position. Therefore, starting January 1, 2023, public and private employers should expect a surge of requests from current employees.

 

Record Retention

Employers of all sizes will need to keep job title and wage rate records for each employee throughout their employment and for three years after termination. It is imperative that employers abide by this new record retention policy since, as the statute describes, failure to do so creates a rebuttable presumption in favor of any employee’s claim that the employer violated the Act. Also, these records must be made available to the Labor Commissioner for inspection to determine if there is a pattern of wage discrepancy.

 

New Civil Penalties

For violations of the new pay scale law, employees may file a complaint with the Labor Commissioner, which the Labor Commissioner is obligated to investigate promptly. Additionally, the new law creates a private right of action, which could lead to penalties of up to $10,000 per violation. However, the first penalty will not be assessed if the employer has demonstrated they have cured the job posting violation by updating it to include the pay scale.

 

Pay Data Reports

Before this law was enacted, employers with 100 or more employees were required to submit pay data reports if they were required to file an annual Federal EEO-1 Employer Information Report. Employers could also simply file the EEO-1 in lieu of filing a pay data report. Now, the new law requires pay data reporting for any employer with 100 or more employees, regardless of whether the employer must submit the Federal EEO-1 report. The new law also requires private employers with 100 or more employees hired through labor contractors in the prior calendar year to submit a separate pay data report covering labor contractors. The annual reports must disclose each employee and labor contractor’s median and mean hourly rate according to race, ethnicity, and gender in each job category. Also, employers with multiple establishments must submit a separate pay data report for each establishment.

 

Compliance and New Civil Penalties

To ensure that companies comply with the report filing requirements, the Civil Rights Department is authorized to request the Employment Development Department to provide it with the names and addresses of all businesses with 100 or more employees. This list will also be a public record. Failure to submit the annual reports can lead to fines/civil penalties of up to $100 per employee for initial violations and up to $200 per employee for subsequent violations, in addition to the employer potentially being responsible for the Department’s costs associated with obtaining a court order to ensure compliance. So, for example, an employer with 100 employees could face a $10,000 fine for an initial violation, plus costs.

 

What could this mean for employers?

Since the pandemic, wages have become competitive. Thus, one effect this law will have is that employers may feel pressured to offer higher wages because the compensation packages of their competitors will be more attractive. On the other hand, employers may benefit from these pay transparency requirements since it will likely streamline hiring, compensation, and the talent development process, and make businesses run more efficiently.

 

Another effect this law may have is current employees may begin more extensively discussing compensation, which is protected speech under labor relations laws. The results of sharing may be that employees discover who is getting paid more or less and why. In any case, employers should be prepared to explain any pay discrepancies and be mindful of perceived pay inequality when posting pay ranges on job advertisements.

 

Finally, employers should begin preparing to comply with these broad changes and consider hiring a third party to assist if they do not have a reasonable pay structure in place.

Less than two and a half years after proclaiming a state of emergency related to COVID-19, Governor Newsom has proclaimed a state of emergency in response to the ongoing monkeypox (“MPX”) outbreak. While the number of MPX cases in California is relatively small compared to the number of COVID-19 cases and the outbreak less likely to threaten the continuity of agency operations, public employers must now manage workplace health and safety concerns and legal risks associated with both viruses.

The purpose of this post is twofold: (1) to educate public employers about MPX, so that they can inform their employees about the virus, its symptoms, and spread; and (2) to advise employers about practical issues and legal concerns regarding MPX in the workplace.

What is MPX?

According to the Centers for Disease Control and Prevention (“CDC”) and California Department of Public Health (“CDPH”), MPX is part of the same family of viruses as variola, which causes smallpox.

Symptoms

The symptoms associated with MPX are similar to, but less severe than, those associated with smallpox, and include the following: (1) rash or sores; (2) fever; (3) chills; (4) swollen lymph nodes; (5) exhaustion; (6) muscle aches and backache; (7) headache; and (8) respiratory symptoms (e.g., sore throat, nasal congestion, or cough)

Initially, an individual with MPX will typically present flu-like symptoms, such as fever, swollen lymph nodes, exhaustion, and body aches. One to three days later, most individuals with MPX develop a rash or sores, which look like pimples or blisters and may be painful and itchy.  The rash or sores may take two to four weeks to “fully heal”, which means that the sores have scabbed over, the scabs are off, and a fresh layer of new skin has formed underneath.

Transmission

MPX can be transmitted in several different ways by individuals who are in their infectious period (i.e., the period between presenting symptoms of the disease and having sores that “fully heal”).

MPX can be transmitted by either direct contact, including skin-to-skin contact, contact with body fluids, and contact with contaminated items, or by contact with respiratory droplets as the result of “prolonged, face-to-face contact.”

The risk of transmission is heightened when engaged in sexual activity where more than one mode of transmission is possible, if not likely.

Isolation

Pursuant to an August 18, 2022 CDPH order, MPX cases must isolate at their home or place of residence and not return to work until they can satisfy the criteria set forth under one of two tests.

Under the first test, an individual must satisfy each of the following six criteria:

  1. Any fever or respiratory symptoms have been resolved for at least 48 hours;
  2. No new lesions have appeared for at least 48 hours;
  3. Any lesions that cannot be covered, such as those on the face, are “fully healed”;
  4. Employment does not involve direct physical care or contact with others;
  5. Employment is not in a “setting of concern”; and
  6. Virtual work is not possible

If an individual cannot satisfy any of the six criteria enumerated above, the individual may return to work if they can satisfy both of the criteria under the second test as provided below:

  1. Skin lesions are “fully healed”; and
  2. All other symptoms, including but not limited to fever and respiratory ones, have been resolved for at least 48 hours.

If the MPX case is returning to work at a “setting of concern,” CDPH also advises that the individual consult with their healthcare provider or local health department before returning to work.

How Should Public Employers Approach MPX?

Although MPX is very different from COVID-19, public employers may draw on lessons learned from COVID-19 and apply best practices from their response to that communicable disease in order to improve workplace health and safety related to MPX.

Educating Employees

One of the most important health and safety measures that employers can take is to educate their employees about the virus.

The CDPH has developed a fact sheet that provides useful information about MPX, its symptoms and transmission and ways to reduce the risk of contracting or transmitting the virus.

Employers should consider posting, mailing, emailing, or reading the fact sheet as a means by which to educate their employees about the virus and improve workers’ understanding of the risks associated with the virus. Employers should consider supplementing the general information provided on the fact sheet with information specific to the employment context, such as the return-to-work criteria discussed above.

Responding to MPX Cases

If an employer becomes aware of that an individual with MPX was present at one of its facilities, the employer should undertake the following steps in order to reduce the risk of further spread of the virus:

  • Communicate with Employees and Employee Organizations about Workplaces Exposures – Employers should provide notice to employees (including volunteers and contractors) and employee organizations in the event of a MPX exposure at work. Employers should provide fact-based information about the exposure, including the time period that the individual was present in the workplace during their infectious period. Employers should not identify the MPX case or provide any personally identifiable information that could be used to identify them.
  • Respond to the MPX Case – Employers should undertake the following in order to respond to MPX cases at work:
    • Instruct MPX cases to immediately leave the workplace or remain at their home or place of residence, if they are not at work.
    • Clean and disinfect any objects and surfaces that MPX cases may have touched during their infectious period.
    • Follow CDPH return-to-work protocol before permitting MPX cases to discontinue isolation and return to work.
  • Identify Employees who Might have been Exposed to MPX — Employers should work with their local health department (typically the local County Department of Public Health) to identify and monitor any employees, volunteers, or contractors who might have had close contact with the MPX case. As with COVID-19, contact tracing may identify other individuals who were exposed to the virus, which may limit the further transmission of the virus in the workplace and prevent further disruptions to the employer’s operations. In certain instances where there is a high-degree of exposure to a MPX case, post-exposure vaccination may be advisable to the individual who had close contact.

Legal Issues Implicated by MPX

In addition to managing workplace health and safety concerns related to MPX, employers must be mindful of the legal risks associated with their responses to the virus. Fortunately for employers, the laws implicated by MPX are the same as those affected by COVID-19 and the responses are substantially similar if not the same.

Maintain the Confidentiality of MPX Cases and Close Contacts

The Confidentiality of Medical Information Act (“CMIA”) precludes employers from disclosing the identity of or other personally-identifying information about the MPX cases and individuals who may have had close contact with MPX cases.

While employers should provide notice of a workplace exposure, employers need not and should not identify the individual who was the MPX case, or anyone with whom that individual may have had close contact while at the employer’s worksite.

Employers should advise managers and supervisors who may be aware of the identity of the MPX case and close contacts to keep such information strictly confidential and only share it with Human Resources.

Allow MPX Cases with Paid Sick Leave to Use Such Leave

While the Family Medical Leave Act (“FMLA”) requires that employers provide unpaid leave to employees who have contracted MPX and have not exhausted such leave, there are currently no federal or state laws obligating employers to provide paid leave to MPX cases.

However, employees who have not exhausted the paid sick leave to which they are entitled under the Labor Code or by contract with the employer must be permitted to use such leave while they are in their infectious period and precluded from working in-person at the employer’s facilities. Employers must allow such employees to use paid sick leave, if the employee elects to use such leave rather than take unpaid leave.

Relatedly, employers that have elected to provide COVID-19 cases administrative or COVID-19 leave that exceeds requirements related to COVID-19 Supplemental Paid Sick Leave may also consider expanding such policy to cover employees who are required to isolate after contracting MPX.

Engage MPX Cases in the Interactive Process

Individuals who contract MPX may be entitled to work-related accommodations under the Americans with Disabilities Act (“ADA”) and the Fair Employment and Housing Act (“FEHA”).

Employers should contact employees with MPX in order to engage such employees in the interactive process and determine whether the employee can be accommodated. For employees who are able to perform their job duties remotely, but are unable to do so in in person because they cannot satisfy the return-to-work requirements set forth by the DPH, employers should consider allowing the employee to work remotely as a reasonable accommodation. For employees who are unable to perform their job duties remotely, employers should consider other accommodations, including unpaid leave.

Employers should instruct managers and supervisors to work with Human Resources in order to discharge their responsibilities as part of the interactive process.

Limit Inquiries and Medical Exams Related to MPX

The ADA and FEHA limit the circumstances under which an employer may make inquiries about an employee’s medical condition or require that employees submit to medical testing. In order for such inquiries and tests to be lawful, they must satisfy the applicable standard which requires that the inquiry or test must be both job-related and consistent with business necessity.

Therefore, prior to making any inquiry about an employee’s MPX status or requiring an employee to be tested for MPX, employers should be sure that such inquiry or test satisfies the two-part standard. While inquiries and tests that are intended to promote workplace health and safety generally satisfy this standard, it would be prudent for employers that are considering making such inquires or requiring such tests to consult with legal counsel before doing so.

Employers should advise managers and supervisors against inquiring whether any employee has MPX.

Employers with questions about MPX or how to respond to MPX in the workplace should contact a trusted legal counsel for additional advice and counsel on this subject.

What is “quiet quitting?”  After a recent tiktok post went viral, as described below, quiet quitting has been all over social media and the internet.  A google search on “quiet quitting” turns up 315,000,000 hits!  But what exactly is quiet quitting, where did it come from, and what should public agency employers do about it?

Where did quiet quitting come from?

Before we can discuss what exactly quiet quitting is, we need to understand our current work environment.  Gallup’s “State of the Global Workplace 2022 Report” looked at workers’ engagement at work around the world in 2021.  The report found that in the United States and Canada, only 33% of employees reported they felt engaged at work.  In addition, employees in the United States and Canada reported experiencing a lot of the following emotions:  41% daily worry, 50% daily stress, 18% daily anger, and 22% daily sadness. Globally, the Gallup report found that stress among the world’s workers in 2021 reached an all-time high, again, after it did so in 2020.   These numbers suggest workers are burnt out.

While this report is disappointing, it is not surprising.  The Covid-19 pandemic created stress for everyone, including public agency employees.  In addition, over 47 million Americans quit their jobs in 2021 in “The Great Resignation.” Even for employees that did not quit, many re-evaluated their priorities.  The pandemic shifted many employees’ priorities concerning work-life balance, their mental health, and their relationship with their job.  As employees’ work lives’ shifted, so did their views on work.

What is quiet quitting?

Quiet quitting is not actually quitting.  TikToker @zkchillin’s video post spurred the recent viral frenzy over quiet quitting.  His video, which has received 3.5 million views, describes quiet quitting as “not outright quitting your job, but quitting the idea of going above and beyond. You’re still performing your duties, but you’re no longer subscribing to the hustle culture mentality that work has to be your life — the reality is, it’s not, and your worth as a person is not defined by your labor.” Another sentiment that has been making rounds on social media is #actyourwage, which expresses the idea that employees should not take on tasks for which they are not compensated, such as after-hours meetings.

The notion of quiet quitting and #actyourwage is that a person is not defined by their job.  Employees should just do their job duties – only what they are paid for.  But is just doing your job duties quiet quitting?  Is coasting at work quiet quitting?  Is logging off at 5:00 p.m. quiet quitting?

An employee who satisfactorily completes their job duties and takes pride in their work, but simply does not want to get ahead is not quiet quitting.  An employee that works efficiently and productively all day but promptly leaves at the end of the work day is not quiet quitting.  Rather, an employee who is quiet quitting is doing more – or actually less – than just avoiding extra work or not responding to after hours’ emails.  Rather, the essence of quiet quitting is an actively disengaged employee.  An employee who not only does not want to get ahead, but rather, is doing the bare minimum to keep their job, such as completing the assignment but maybe it’s late, not thorough, uninspired, or full of typos.  An employee who no longer takes pride in their work, no longer cares about their job, feels unfulfilled, or feels burnt out.

How should public agency employers address quiet quitting?

As an employer, you don’t want to wait until emails go answered, you get poor work product, or projects go uncompleted before addressing the situation.  When asked about quiet quitting, U.S. Labor Secretary Marty Walsh said “It shouldn’t get to that.”  Walsh explained: “If you are an employer, you should catch on early enough that your employees aren’t satisfied, aren’t happy, and then there needs to be a dialogue, a conversation.”  Here are three steps public agencies can take to prevent quiet quitting:

  1. Check in with your agency’s values. Quiet quitting is emerging among workers who feel disengaged, unsupported, unfulfilled, and burnt out at work.  Could your employees be experiencing those feelings?  In the everyday business and routine, it can be easy to lose track of the agency’s values.  Check in and audit your agency – are the daily routines, schedules, and work environment in sync with the values and goals of your agencies?  Are employees supported in their jobs?  Are they overworked?  Are their accomplishments recognized and successes praised?  Evaluating these concerns may let the agency know how employees are feeling to prevent quiet quitting from arising.
  2. Don’t rush to blame the employee, but look to understand the reasons for the change in an employee’s behavior. If you notice an employee with a strong performance has recently been showing signs of quiet quitting, do not ignore it.  Meet with the employee to discuss the change in performance and find out the causes.  It is also important to keep in mind that there could be a medical issue that may be impacting the employee’s work performance, and you may need to engage in the interactive process concerning potential accommodations.  Since quiet quitting symptoms may emerge when employees feel disengaged or unsupported at work, a dialogue may lead to understanding and better work performance.  Generally, poor performance should be documented and may need to be disciplined.
  3. Set realistic job expectations. Quiet quitters claim they don’t want to go above and beyond their job duties.  As such, it is critical that employers provide accurate and realistic job expectations, especially for new hires.  If someone is expected to respond to emails after hours, that should be explained.  If someone typically has 9-5 work days, but at times has urgent projects requiring longer hours, that should be communicated from the start.  Communicate clear expectations about remote work options as well.

Navigating changes to the workplace from the pandemic can be challenging.  By being alert to the symptoms of quiet quitting, and taking affirmative steps to support and engage employees, public agencies can help retain a thriving workforce.

On September 18, 2022, Governor Newsom signed and approved Assembly Bill 2188 (“AB 2188”), which amends the California Fair Employment and Housing Act (“FEHA”) to generally prohibit an employer from discriminating against an employee or employment applicant for cannabis use off the job and away from work, which is a significant change to the FEHA.

Since AB 2188, does not become operative until January 1, 2024, California employers have some time to fully understand and prepare for the impact of AB 2188 on the workplace.  As we wait for AB 2188 to become operative, it’s also possible that the California Civil Rights Department, the state agency charged with enforcing the FEHA and California’s other civil rights laws, will issue guidance for employers, employees, and applicants about this change in law.  In the meantime, here’s what we know now:

Which Employers Are Covered Under AB 2188?

The FEHA sets forth a general definition of employer that applies unless a particular section of the FEHA sets forth a different definition.  Since AB 2188 does not set forth its own definition of employer, the general definition of employer applies.

Accordingly, for purposes of AB 2188, an employer is a person or entity regularly employing five or more persons, the state, any political or civil subdivision of the state, and cities.  Nonprofit religious associations and nonprofit religious corporations are expressly excluded from the definition of employer under the FEHA, and so AB 2188 does not apply to them.

Which Employees and Applicants Are Covered Under AB 2188?

AB 2188 applies to all employees and applicants of a covered employer, except the following:

  • Employees in the building and construction trades; and
  • Applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with United States Department of Defense regulations (National Industrial Security Program Operating Manual (NISPOM), 32 CFR Part 117), or equivalent regulations applicable to other agencies.

What Exactly Is Prohibited?

AB 2188 makes it unlawful for a covered employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person, if the discrimination is based upon any of the following:

  • The person’s use of cannabis off the job and away from the workplace; or
  • An employer-required drug-screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

What About On-The-Job Cannabis Use?

AB 2188 does not permit an employee to possess, to be impaired by, or to use cannabis on the job.  As such, at this time it appears covered employers may continue to enforce any policies they may have prohibiting employees from possessing, being impaired by, or using cannabis while working.  Presumably, if an employee smokes or consumes cannabis out of work, and arrives to work impaired, that conduct would not be protected by AB 2188.

AB 2188 also does not affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace under California Health and Safety Code Section 11362.45, or by federal law or regulation.

What About Drug-Testing?

AB 2188 does not preempt state or federal laws and regulations requiring applicants or employees to be tested for controlled substances as a condition of employment, for the employer to receive federal funding or federal licensing-related benefits, or to be able to enter into a federal contract.

AB 2188 also expressly allows employers to make employment-related decisions based on tests that apply to current impairment, in particular scientifically valid pre-employment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites, such as those that test for tetrahydrocannabinol (“THC”).

When Must Employers Start Complying with AB 2188?

AB 2188 adds Section 12954 to the Government Code, which becomes operative on January 1, 2024.

What’s the Intent Behind AB 2188?

The Legislative intent behind AB 2188 is to prevent adverse employment actions against applicants and employees because of off-duty cannabis use that does not cause impairment while working.  The Legislature noted that after an individual smokes or consumes cannabis, THC is metabolized and stored in the body for several weeks as a non-psychoactive cannabis metabolite.  As such, the presence of non-psychoactive cannabis metabolites in the body does not indicate that an individual is impaired, only that they smoked or consumed cannabis in the last few weeks.

However, many drug tests used by employers to test for cannabis use only show the presence of non-psychoactive cannabis metabolites in the body, and do not test for actual impairment.  As a result, employers have taken adverse employment actions against applicants and employees based on drug test results that revealed past cannabis use, but not active, current impairment.

In passing AB 2188, the Legislature wanted to end this from occurring, while still allowing employers to use drug tests that measure active, current impairment, including those that identify the presence of THC in an individual’s bodily fluids, and to take appropriate employment actions based on those results.

Recommendations to Prepare for AB 2188 to Take Effect

As employers prepare for AB 2188 to take effect, we recommend the following in consultation with legal counsel:

  • Assess which categories of employees, if any, may be exempt from AB 2188;
  • Review drug and alcohol free workplace policies for any necessary changes to comply with AB 2188, and make those revisions in time to be adopted effective January 1, 2024; and
  • Review and update any drug testing policies and practices for employees covered by AB 2188 to eliminate testing that screens for non-psychoactive cannabis metabolites, and instead use testing that only indicates impairment on the job, such as the presence of THC. Make those revisions in time to be adopted effective January 1, 2024.

Trusted legal counsel are available to consult on the impact of AB 2188 to individual employers, and also to assist taking the necessary steps to prepare for this new legislation to take effect.

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.

 

On Monday, September 12, 2022, the U.S. Department of Education closed the two-month comment period for the public to voice their opinions on the proposed changes to Title IX, the federal law that governs how schools supported by federal funding respond to forms of sex discrimination. Over 200,000 comments flooded the U.S. Department of Education during the 60-day period. Education Secretary Miguel Cardona’s draft rule would revisit the current mandate requiring live hearings to determine responsibility following a report of sexual violence. Instead, institutions could determine whether to hold a hearing or pursue a “single-investigator” model, which would allow one official to conduct interviews then render a determination. The new draft rule would also offer LGBTQ and pregnant students new protections under Title IX, and expand the definition of sexual harassment.

Who submitted comments?

Various associations, advocacy organizations, school boards, parents, students, and members of the public drafted comments to voice their opinions on the proposed regulations. Supporters praised the draft rule preserving informal resolutions to Title IX cases in lieu of formal hearings. On the other hand, critics panned the draft rule, arguing it is inconsistent with current law.  They also argued that, by allowing institutions flexibility to choose the disciplinary model they deem most appropriate and thereby bypass a formal hearing process, the draft does not confer due process and will increase disparities amongst institutions. This proposed rule had almost twice as many comments submitted as compared to the regulations proposed by the Trump administration in 2018. Although widely criticized during its public comment period, the regulations largely went unchanged.

What happens next?

The Department of Education must address all comments in some form before releasing final regulations for Title IX. The Department will likely not respond to every individual comment, but watchers expect that the final regulations will address concerns that the public has raised. Currently, there is no timeline on when the Department is set to release its final Title IX regulations. However, the Trump administration needed nearly a year and a half to review the comments before finalizing the Title IX regulations that were implemented by the administration in August of 2020.

LCW will continue to monitor status of the new proposed Title IX regulations. If your institution needs assistance in complying with federal and state laws, please contact trusted legal counsel.

Telecommuting is a wonderful tool. Employees with compatible jobs can work from any location with an internet connection. They gain flexibility through ease of access. Telecommuting can reduce turnover and absenteeism, and modern technology has made remote work increasingly reliable. Yet, like any tool, telecommuting may cause issues if employers do not handle it competently. This blog post covers several topics related to remote work with the goals of informing an employer’s choice to offer telecommuting and providing some tips on effective management.

Get It In Writing

First things first, prepare a remote work policy. An employer with a written policy is more likely to manage remote work arrangements consistently. A written policy reduces the risk of confusion or misunderstandings. It is also important for counseling or disciplinary purposes if employees fail to meet requirements or expectations.

What employers include in their remote work policy will vary, depending on each employer’s operational needs, job compatibility with remote work, each employer’s technology resources, and a host of other factors. As employers write their remote work policies, they should check for consistency with existing policies. The following policies commonly overlap with telecommuting: social media use, employer-owned equipment or devices, confidentiality or privacy policies, internet use, and employee accommodations (disability, religious, etc.).

Employers may also use teleworking agreements. The contents will vary, but at the very least a teleworking agreement requires the individual employee to verify he or she has read and understood the teleworking policy and procedures.

Location, Location, Location

Left to their own discretion, employees may choose to work from anywhere. The remote location matters. Cities and counties have laws that may apply to employees working remotely within their geographic boundaries. The COVID-19 pandemic has spurred many cities and counties to adopt their own sick leave policies, for example. Even before COVID-19, some cities and counties also set their own minimum wage requirements. Thus, employees working remotely from another city or county may subject the employer to new legal requirements.

The question of applicable law becomes even more complicated when employees work from a different state. California has laws on protected leaves, workplace injuries, retirement plans, mandated reporting, discrimination and harassment prevention, work hours, overtime, employee representation, tax obligations, and so forth. The same may be true of the other states from which employees perform the work. Multi-state telecommuting may require an employer to consult with legal, tax, and other professionals in both jurisdictions. As a result, compliance becomes increasingly difficult.

Telecommuting Schedules

Remote work options can be customized in many ways, but they generally fall into two categories: hybrid and fully remote schedules.

A fully remote schedule involves the employee working remotely full-time with no time spent in-person. While this option may seem less flexible since it requires a position that is compatible with fully remote work, it remains a viable option. For instance, a fully remote schedule may serve as a reasonable accommodation. It may also be necessary on a temporary basis, as many employers discovered during the COVID-19 lockdowns. Even if an employer ultimately adopts a hybrid schedule, it is still worth considering fully remote schedules in case the employer must use them as a reasonable accommodation or in response to a temporary emergency.

A hybrid schedule involves some time spent in-person and some time spent telecommuting. Hybrid schedules offer a high degree of versatility. The employer can choose whether to require certain days to be in-person, let employees choose which days are remote, or use a mix of both options. The decision will depend on the employer’s operational needs, the needs of specific units or departments, and each job position’s compatibility with remote work. The arrangement may also rely upon specific types of remote work that are available. For example, an electrician may need to make field calls but may be able to handle certain tasks remotely while on a call.

Open Communication

Whether employers offer hybrid or fully remote schedules, it is critical to maintain open lines of communication. Telecommuting employees should know how and when they can reach their supervisors and vice versa. Employees should know which forms of communication to use: phone calls, emails, text messages, video calls, et cetera. If an employee or supervisor will be unavailable for a part of the day (e.g., in a meeting), the person should use out-of-office messages or update the team accordingly. Employees should know how to reach their coworkers and supervisors in the event of a sudden development or emergency.

Ideally, the open lines of communication should appear in the teleworking policies. This will allow employers to clarify expectations and resolve any confusion before employees begin working remotely. Including communication procedures in a teleworking policy helps employers to resort to discipline when necessary, because the policy will describe expectations and acceptable conduct.

Once an employer has open lines of communication, it should schedule regular check-ins. If the employer uses a hybrid schedule, days where employees report to work in-person may serve as meeting days. If check-ins occur remotely, employers should use video conference calls and encourage employees to turn on their video cameras. Employers should plan both group and individual check-ins. This is because individual employees may want to discuss certain things that they feel uncomfortable raising in a group setting.

Feedback and Review

Expectations should not change when an employee transitions to remote work. The employee should still provide the same quality and quantity of work product while working remotely. Regular performance reviews are effective communication tools that help maintain employee performance, whether in-person or remote.

In addition to regular performance reviews, supervisors and managers should plan less formal reviews and should create opportunities to give and receive feedback. For employees with hybrid schedules, review checks or feedback can occur on in-person workdays. Video conference calls serve for employees who work fully remote schedules.

Summing It Up

Telecommuting arrangements can take many forms. This blog post considers only a few of the subjects related to remote work. Employers’ approaches and experiences will vary. However, the more planning and preparation an employer can do beforehand, the better situated it will be to support telecommuting employees.

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[1] NOTE: This post uses terms like “telecommuting,” “telework,” and “remote work” interchangeably.