A recent case has made clear that a government agency’s ceasing doing business with a company based on the viewpoints of the company’s owners can lead to First Amendment liability for the agency.  Earlier this year, in Riley’s American Heritage Farms v. Elsasser, the United States Court of Appeals for the Ninth Circuit (the federal appellate court covering California), held that a California school district potentially violated a field trip vendor’s First Amendment rights.  The Ninth Circuit ruled that when the school district ceased its longstanding business relationship with the vendor upon receiving complaints from parents about controversial social media posts by the company’s owner, it raised First Amendment issues.

The two important take-aways from the case are: (1) when ceasing a business relationship because of viewpoints associated with a private company, the same First Amendment test applies as for speech by public employees (i.e., the “Pickering” test), and (2) whether the speech at issue causes or threatens to cause sufficient disruption at the agency constitutes an important factor Courts will consider in determining whether a decision to cease doing business in this context is constitutional.

Factual Background

Riley’s American Heritage Farms (“Riley’s Farm”) provides historical reenactments from the American Revolution, the Civil War, and historical farm life for students on school field trips.  It also hosts events such as apple picking.  For many years, the Claremont Unified School District arranged for student field trips to Riley’s Farm. The principal shareholder of the company used his personal Twitter account (separate from any social media account for business) to comment on a range of controversial topics, including, as the Ninth Circuit opinion described: “President Donald Trump’s alleged relationship with Stormy Daniels, President Barack Obama’s production deal with Netflix, Senator Elizabeth Warren’s heritage, and Riley’s opinions on gender identity.”  Parents of students in the District learned of the posts, and reported them to the District as alarming and biased.  In August 2018, a parent of a kindergarten student emailed to her child’s teacher: “I do NOT feel comfortable with my son patronizing an establishment whose owner (and/or family/employees) might be inclined to direct bigoted opinions towards my child or other vulnerable children in the group.”  Other parents began to make similar communications to teachers and administrators at the District, local news media reported on the controversy, and ultimately field trips to Riley’s Farm from District schools stopped.  (The District disputed whether there was any actual policy prohibiting field trips.)  Riley’s Farm and its owner sued District officials in federal court, contending that the discontinuation of business constituted retaliation prohibited by the First Amendment.  They contended it essentially constituted punishment of the owner for his speech on social media.

The Trial Court found in favor of the District officials, on the basis that their damages claim was barred by qualified immunity, a defense available to public officials based on lack of clarity in the law, as described below.  The Trial Court also ruled that Riley’s Farm’s separate injunctive relief claim failed because there was no evidence the school district continued to have a policy against doing business with the company.

The Court’s Ruling in Riley’s

The Court of Appeals reversed in part.  Although it ultimately agreed that qualified immunity barred Plaintiffs’ damages claims, it determined that the injunctive relief claim survived because evidence in the record showed the school district did appear to have a policy of not patronizing Riley’s Farm.

As to the issue of First Amendment liability, the Court held it was possible on the record that liability existed, so that summary judgment for either side was not possible.  Further proceedings were necessary, including possibly a trial.

          a. First Amendment Rights of Businesses

In reaching its decision, the Court of Appeals mapped out how First Amendment law applied to an agency’s decisions as to its business relationships.  The Court began by reciting the general rule that the government may not punish individuals for protected speech without violating the First Amendment.  The question, the Court continued, was whether First Amendment law allowed the government some leeway when it came to choosing which business relationships to continue or discontinue.  The Court explained that it did, and that the appropriate analogy to the agency-vendor relationship is the agency-employee relationship.  The agency-employee relationship is governed by the “Pickering” test (from the seminal 1968 U.S. Supreme Court case on public employee speech rights Pickering v. Board of Education).  This test acknowledges that government employees have First Amendment free speech rights as against their own employer, but that those rights are diminished when compared to rights of members of the public generally.  The Court observed that appellate decisions had already applied this test to a number of different types of contracting relationships, and ultimately determined that the test should apply in the Riley’s case as well, even though the business relationship was less formalized and not pursuant to a specific contract.

          b. How the First Amendment Rights Applied

The Court proceeded to apply the Pickering test as follows.  It explained that the test requires among other things, that the speech be on a matter of “public concern,” that the plaintiff suffer an adverse action from the government agency because of the speech, and that the agency demonstrate that it caused the adverse action because the agency “had ‘legitimate countervailing government interests [that were] sufficiently strong’ . . . to ‘outweigh the free speech interests at stake.’”  (Quoting authority.)  Under applicable precedent, an agency can make this demonstration by showing that the speech at issue caused sufficient actual or threatened disruption of the agency’s operations.

The Court determined that Riley’s speech on Twitter satisfied the “public concern” requirement, because of “public concern” includes speech on such topics as “politics, religion, and issues of social relations.”  The Court next found that Riley’s Farm suffered an adverse action as a result of discontinued business from District field trips.  Finally, the Court determined that the District did not meet its burden under the balancing of interests, in particular because the District’s evidence did not show significant actual or threatened disruption from Riley’s speech on Twitter.

In concluding the District has presented insufficient evidence to prevail in the balancing of interests, the Court emphasized, first, that there was only an “attenuated relationship between Riley’s controversial speech and the field trips themselves.”  In particular, “Riley’s controversial tweets were made on his personal Twitter account, and did not mention or reference the School District or field trips to Riley’s Farm in general,” there were no allegations “that Riley made (or planned to make) any controversial statements during a school field trip,” and there were “no allegations that he interacted at all with the students during the field trips.”

Second, no sufficient evidence of disruption existed.  The District presented the Trial Court with only “two complaints from parents, only one of which involved a student currently enrolled in the School District,” and a reference to other parents excusing themselves from trips, without the District describing “the number of parents or the nature of those complaints.”  (By contrast, other cases had found complaints from 60 or “hundreds” of parents sufficient evidence of disruption under the circumstances of those cases for the school district to prevail on balancing.)  There was also insufficient evidence of future disruption, in that only a handful of parents appears to have asked that their students be excused from a single field trip.  The Court also observed, in evaluating disruption, that there had been only relatively sparse media attention directed to Riley’s tweets, compared to other cases in which a significantly greater public controversy arose.

The Court of Appeals did, however, confirm that the doctrine of qualified immunity blocked any damages claims against officials of the District.  Under the doctrine of qualified immunity, a public official who violates an individual’s constitutional rights is nevertheless not liable in damages if those rights were not clearly established at the time of the misconduct.

Qualified immunity, however, did not apply to Plaintiffs’ request for injunctive relief.  That meant Plaintiffs’ case for injunctive relief could proceed.

Import of the Riley’s Case Ruling

The case illustrates hazards in an agency’s terminating a business relationship with an individual or company based on the political, social, or other views they express, particularly when that expression of views has no connection to the services the individual or company has offered.  Under the test described by Riley’s, however, it is possible for an agency to do so without violating the First Amendment.  To do so, the agency must be able to present sufficient evidence it would prevail in a balancing of interests, including sufficiently persuasive and substantial evidence of the disruption caused by the speech at issue or that could be caused.

Given the often complex nature of this area of law, it is helpful to consult trusted legal counsel when these types of First Amendment issues arise.  Federal case law will likely soon provide further answers in these areas.

 

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.

 

Updating personnel rules is an endless task. Laws are constantly changing, and agencies are experiencing significant operational changes now more than ever. The responsibility of ensuring that all personnel rules are up to date and reflect both the legal requirements and the operational requirements is time-consuming and daunting. However, auditing personnel rules is one of the most valuable ways for agencies to avoid liability. You may be asking yourself: “where do I even start?” There is no simple answer – most policies are important and valuable – but a good starting point is to make sure your agency’s personnel rules and policies at least include those required by law.

Your focus should be on adopting and clearly establishing legally-mandated policies and standards. It is critical to make sure these policies remain up to date on a yearly basis in order to remain compliant with new laws and regulations from California legislators, California and federal courts, and rule-making administrative bodies. Below is a list of the most important policies that must be included in your agency’s personnel rules to ensure legal compliance.

  1. Equal Employment Opportunity

Every agency should have an equal opportunity policy that makes a strong and clear statement against all forms of illegal discrimination. This policy should cover both applicants and existing employees and list the protected classifications established by California law. Protected classifications include race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age (40 and over), sexual orientation, or military and veteran status or any other basis protected by law.[1]

  1. Anti-Discrimination, Harassment, and Retaliation

In addition to the general equal employment opportunity policy, agencies should have a policy that clearly defines protected classes, what constitutes harassment, discrimination, and retaliation and how the agency addresses claims of harassment, discrimination, and retaliation. Specifically, state law requires that harassment prevention policies set forth: (1) the illegality of sexual harassment; (2) the definition of sexual harassment; (3) a description of sexual harassment; (4) the internal complaint procedure; (5) legal remedies available through the Department of Fair Housing and Employment (“DFEH”) and how to contact DFEH; and (6) the legal protections from retaliation provided under California law.[2] Each of the enumerated items above must be clearly outlined in the agency’s personnel rules.

  1. Reasonable Accommodations

Public agencies have an affirmative duty to provide applicants and employees who are disabled with reasonable accommodations. Employers must engage in a timely, good faith, interactive process in order to determine what accommodation(s) must be made for the employee to perform his or her essential job functions. Further, an employer must determine if an accommodation can be made without causing an undue burden to the employer or presenting a direct threat to the health and safety of others.

Your agency’s reasonable accommodation policy should outline the procedure for requesting and receiving an accommodation. Specifically, it should cover: (1) how to make a request; (2) what documentation may be requested; (3) fitness for duty exams; (4) the interactive process; and (5) that determinations will be made on a case-by-case basis. This section should also include a process of resolving requests for religious accommodations.

  1. Leaves

Numerous leave policies should be included in agencies’ personnel rules. Leaves include both legally required and operationally required leaves. The leaves section should include: (1) vacation time accrual if provided, and the procedures for taking the time off; (2) the agency’s designated holidays; and (3) any other leave time the agency grants employees. The below are leave policies required by law.

a. Federal Family Medical Leave Act (“FMLA”) and California Family Rights Act (“CFRA”)

The FMLA and CFRA both provide rights to employees to take leave to care for family members. Your policy must include the definitions as provided in each Act and note the differences where they exist. Employers are required to inform employees of when they are qualified to take this type of leave and how much leave may be taken. This policy will need to be highly detailed to inform employees of their rights under both FMLA and CFRA.

b. Pregnancy Disability Leave (“PDL”)

Employers are obligated to provide leave for pregnant employees. PDL is separate and distinct from the need to take a leave of absence as part of a reasonable accommodation and has different qualifications than leave under FMLA and CFRA. At a minimum, employers are required to provide four (4) months of leave for pregnant employees. This policy should cover the amount of leave permitted, whether employees will be paid during the leaves, notification requirements, and the process for reinstatement after the conclusion of the leave.

c. Sick Leave

Sick leave is required under two California laws: the Healthy Workplace Healthy Family Act of 2014 and the Kin Care Law. While these laws are separate and distinct, they overlap in important ways. Your agency’s sick leave policy should cover both of these required sick leave laws.

California’s Healthy Workplace Healthy Family Act of 2014 requires employers to provide paid sick leave. It entitles an employee who has worked at least thirty (30) days in twelve (12) months with an employer in California to accrue sick leave. Employees are permitted to use sick leave to attend to their own illness and the illness of other family members.

California’s 2001 Kin Care law requires those employers who already provide paid sick leave to expand the permissible use of that sick leave, so that employees can use up to half of accrued and available annual sick leave entitlement to attend to the illness of the following family members: child, parent, spouse, or registered domestic partner. Kin Care leave can also be used to attend to issues related to domestic violence. Sick leave policies must accurately cover requirements under both laws and reflect any additional sick leave benefits employers may provide.

  1. Overtime and Compensatory Time

It is critical to provide a policy that (i) defines overtime in a manner consistent with the Fair Labor Standards Act (“FLSA”) and (ii) requires non-exempt employees to obtain pre-approval from their supervisor prior to working overtime. This policy will lay out the obligations of employees when it comes to overtime work. Agencies should also clearly define what work is compensable for overtime calculations. The FLSA only requires that actual hours worked be counted, but some employers will count additional hours. Employees should be able readily to determine what their obligations are when working overtime and what will be counted towards compensable time.

Conclusion

The above is not an exhaustive list of legally required policies and only provides a brief overview of the critical components of each policy. Nevertheless, it should serve as a starting point and guidepost in considering whether your agency’s personnel rules are missing any critical policies. Most agencies will have these policies, but many policies are outdated or incomplete. Because the aforementioned policies are required by law, it is critical to ensure they are kept up to date on an annual basis. While regular audits of personnel rules may be time-consuming and cumbersome, it is an effective way that an agency can reduce its exposure with respect to employee claims.

Check here to see if your policies reflect the most recent legal updates.

______________________________________________________________

[1] Gov. Code §12940, subd. (a).

[2] Cal Code Regs., tit. 2, § 11023.

Senate Bill 1421 (“SB 1421”) went into effect on January 1, 2019.  As a result, under Government Code section 832.7 as amended, certain types of peace officer personnel records became subject to disclosure pursuant to a California Public Records Act (“CPRA”) request. Shortly after the effective date of SB 1421, Kern High School District received CPRA requests for such records from several sources, including news agencies.  Upon receipt of these CPRA requests, the District notified Jerald Wyatt, a police officer it previously employed, that it identified responsive documents in his personnel file.

During Mr. Wyatt’s employment, an internal affairs investigation was opened into allegations against him.  However, by the time the investigation was completed, the District no longer considered Mr. Wyatt an active employee.  When Mr. Wyatt requested access to his personnel file, he discovered among other things, a document listing two sustained findings for “Misuse of [the California Law Enforcement Telecommunications System]” and “Dishonesty.”  Mr. Wyatt claimed that he was not notified of these findings.  Under SB 1421, records relating to sustained findings of certain dishonesty-related misconduct by a peace officer are discloseable pursuant to a CPRA request.

Upon receipt of the notification, Mr. Wyatt filed a petition for a writ of mandate, temporary restraining order, and preliminary injunction, to enjoin the District from producing documents in his personnel file in response to the CPRA requests.  He argued that the records at issue did not relate to “sustained” findings (as the term is defined in Penal Code section 832.8, subdivision (b)) because he was never notified of such findings, and did not receive an opportunity to administratively appeal.  The case ultimately made its way to the Fifth District Court of Appeal.

Endeavoring to determine the parameters of the District’s obligations in connection with the CPRA requests at issue, the Fifth District Court of Appeal in Wyatt v. Kern High School (2022) — Cal.Rptr.3d – first considered SB 1421.

Looking to the legislative history of SB 1421, the appellate court found no indication that the Legislature considered a situation such as Mr. Wyatt’s – that is, a situation where sustained findings were made after a peace officer’s separation from employment.  Under these circumstances, California courts would have to guess between two equally plausible outcomes – that the Legislature would have determined that the records are disclosable or, just as likely, that it would have concluded that a peace officer’s privacy interests prevail in the absence of notice and an opportunity to administratively appeal.  Refusing to engage in guesswork, the appellate court found that the records at issue were not disclosable under SB 1421.

The appellate court’s analysis did not end there, however.  The Fifth District acknowledged that, pursuant to Senate Bill 16, which expanded upon SB 1421 and went into effect on January 1, 2022, “Records that shall be released pursuant to this subdivision also include records relating to an incident specified in paragraph (1) in which the peace officer or custodial officer resigned before the law enforcement agency or oversight agency concluded its investigation into the alleged incident.”  (Penal Code § 832.7, subd. (b)(3).) The appellate court expressed no opinion as to what the outcome of CPRA requests for the records at issue received on or after January 1, 2022 might be.

In light of the Fifth District Court of Appeal’s decision in Wyatt v. Kern High School, a public agency’s obligations when faced with a CPRA request may depend, in great part, on whether a finding was “sustained,” within the meaning of applicable law, and the timing of the request.  If a CPRA request seeks records of sustained findings as to which a peace officer did not receive notification or an opportunity to administratively appeal, such records are not disclosable under SB 1421 if the request was received on or before December 31, 2021.

Whether such records are disclosable under SB 16 if the request was made on or after January 1, 2022 is an open question.  Agencies are strongly encouraged to consult with an attorney prior to responding to CPRA requests pursuant to SB 1421 and SB 16.

When does a City create a public forum for speech under the First Amendment?  When can a City restrict which flags fly on a City flagpoles?  When can a City limit religious speech under the First Amendment?  The United States Supreme Court addressed these questions in its unanimous decision in Shurtleff v. City of Boston, Case No. 20–1800 on May 2, 2022.

Boston’s Practice of Allowing Groups to Raise Flags Outside City Hall

This case revolved around a flagpole outside Boston City Hall.  There are three flagpoles on the plaza outside Boston’s City Hall.  The first flies the American flag, the second flies the Commonwealth of Massachusetts flag, and the third usually – but not always – flies Boston’s flag.  Boston allows the public to use City Hall Plaza for events and acknowledges it is a “public forum.”  A public forum is a place the public can use for the free exchange ideas and for purposes of assembly.  When a public forum exists on government property, the government may only regulate the content of expressive activity if it serves a compelling state interest and narrowly drawn to achieve that interest.

Since at least 2005, Boston also allowed groups to have flag-raising ceremonies on the plaza where they were allowed to raise a flag of their choice on the third flagpole. Examples included flags of other nations, Pride Week, emergency medical workers, and a community bank.  About 50 different flags were raised between 2005 and 2017 and Boston never denied a request.

Boston Denies Request to Raise Christian Flag on Flagpole

Harold Shurtleff is the director and co-founder of an organization called Camp Constitution.  In 2017, Shurtleff applied for a flag-raising event on the Plaza to “’commemorate the civic and social contributions of the Christian community’” where he sought to raise what was described as the “Christian flag.”  The picture of the flag showed “a red cross on a blue field against a white background.”  Boston denied the request because it was the “Christian flag” and believed raising the flag would violate the Establishment Clause of the First Amendment.  The Establishment Clause prohibits public employers from engaging in conduct that endorses religion (i.e., it requires “separation of church and state”).  The City told Shurtleff the event could proceed if they raised a different flag.

Shurtleff and Camp Constitution sued claiming the City’s refusal to let them raise the Christian flag violated their right to free speech. The parties agreed on all the relevant facts.  The District Court ruled in favor of Boston and the United States Court of Appeals for the First Circuit affirmed.  The Supreme Court unanimously reversed and ruled in favor of Shurtleff.

The Supreme Court’s Decision

The Supreme Court focused on two questions:  (1) is the flag raising program government speech, and (2) can Boston deny the request under the First Amendment?

Was Raising the Flag Government Speech?

The Court first recognized that the First Amendment does not limit a government’s ability to express opinions or “speak for the community.”  This line “can blur” when there is public participation in a government program.  The Court explained it makes a “holistic inquiry” to evaluate “whether the government intends to speak for itself or to regulate private expression.”  The Court considered the following factors, such as “the history of the expression at issue; the public’s likely perception as to who … is speaking; and the extent to which the government has actively shaped or controlled the expression.”

While acknowledging flags convey government messages, the court noted the flag raising program allows other flags which the public may not associate with Boston.  More importantly, Boston did not control the flags raised by groups in the flag raising program.  While Boston controlled the scheduling of the event, maintained the physical premises, and provided a crank to raise the flag, Boston exercised no control over the content or messages conveyed by the flags.  Boston has no policies or guidance on what flags groups could fly, expressed it wished to accommodate all applicants, and until this event, never even saw the flags before the events.  Because the City had little to no involvement in the selection of the flags raised by the public or their message, or the events at which they were raised, the Court concluded the flag raisings are private expression and not government speech.

Could Boston Refuse to Raise the Christian Flag?

Because the public flag raisings constitute private expression – not government speech – Boston cannot discriminate based on viewpoint.  The Christian flag is Camp Constitution’s speech – not Boston’s.   Because Boston denied the Christian flag on the basis it promoted Christianity, that is impermissible viewpoint discrimination in violation of the First Amendment.

Three Takeaways For Your Agency

  1. Before regulating speech or expression, especially in connection with public events or programs, take a “holistic approach” to consider who is speaking – is your agency speaking or a private citizen?
  2. Implement and follow written policies to control government speech. The main reason the Supreme Court concluded the flag raising program was private – and not government – speech was because the City had no policies over the selection of the flags.  In contrast, the Court noted the City of San Jose California has a written policy stating its flagpoles are not a public forum for free expression.
  3. When your agency creates a public forum for free expression, be on the lookout for any regulations of the content of expressive activity in the forum. Limit restrictions in public forums to limits on the time, place, and manner of expressive activity.  These time, place and manner restrictions must be content-neutral, serve a significant government interest, and leave open ample alternative channels of communication.

Public agencies have to be mindful of the protections the First Amendment provides to the public when seeking to limit expressive activity on government property.  LCW regularly advises public agency and education clients concerning First Amendment issues and can assist you with these issues.

Nearly all California employers are impacted by, and should be familiar with, the provisions of the California Family Rights Act (“CFRA”) and the Fair Employment and Housing Act (“FEHA”).  There are currently bills working their way through the Legislature that would modify these key statutes.

AB 1949: Modifying CFRA to Include Bereavement Leave

The CFRA provides eligible employees with up to 12 weeks of unpaid protected leave during any 12-month period to care for their own serious health condition, to care for a family member with a serious health condition, or to bond with a new child.

This bill would amend CFRA to prohibit employers from denying a request from an eligible employee (defined as a person employed by the employer for at least 30 days prior to the commencement of the leave) to take up to 5 days of bereavement leave upon the death of a family member, which includes the employee’s spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.  The employee would be required to take the 5 days of leave within 3 months of the date of the family member’s death.

Leave under this bill would be unpaid, but, where an employer already has a bereavement leave policy in place, the CFRA bereavement leave would be taken pursuant to that policy.  Where an employer does not have an existing bereavement leave policy (or the existing policy provides for less than 5 days of paid bereavement leave), the bill would require that employees be allowed to use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

Under this bill, employers could require employees requesting bereavement leave to provide documentation of the death of a qualifying family member, such as a death certificate, a published obituary, or written verification of death, burial, or memorial services from various sources.

A note for employers with represented employees – the new CFRA bereavement leave provision would not apply to employees who are covered by a valid collective bargaining agreement that already provides for bereavement leave.

AB 2188: Modifying FEHA to Include Off the Clock Cannabis Use as a Protected Characteristic

The FEHA prohibits discrimination, harassment, and retaliation in the workplace on the basis of various specified protected characteristics, including race, religion, disability, sex/gender, age, and sexual orientation.

Beginning on January 1, 2024, this bill would amend the FEHA to also make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, for (1) the person’s use of cannabis off the job and away from the workplace; and/or (2) the results of an employer-required drug screening test that found the person to have nonpsychoactive cannabis metabolites in their urine, hair, blood, or bodily fluids.

This prohibition is based on the Legislature’s findings that, when most drug tests for cannabis are conducted, the results show only the presence of nonpsychoactive cannabis metabolites.  These nonpsychoactive metabolites do not indicate impairment, only that an individual has consumed cannabis in the last few weeks.  As science has improved, employers now have access to tests that do not rely upon the presence of nonpsychoactive metabolites and instead, for instance, measure an individual employee against their own baseline performance and/or identify the presence of THC (the chemical compound in cannabis that can indicate impairment and cause psychoactive effects) in an individual’s bodily fluids.

This bill would not prohibit employers from taking action against a person based on “scientifically valid pre-employment screening conducted using methods that do not screen for nonpsychoactive cannabis metabolites.”  The bill does not provide any insight into specific testing that would be permissible under this standard, but this provision seems aimed towards ensuring that employers rely upon the more sophisticated testing available even in pre-employment testing.

The bill would also exempt certain applicants and employees from the bill’s provisions, including employees in the building and construction trades and employees in positions that require a federal background investigation or clearance. Similarly, the bill would not preempt state and/or federal laws requiring applicants or employees to be tested for controlled substance.

 

LCW will continue to monitor and report on any developments with these and other employment-related bills.

On June 8, 2022, the California Department of Public Health (“CDPH”) adopted new definitions for two terms that are critical to determining how employers must respond to COVID-19 cases in the workplace: “close contact” and “infectious period.”[1]

The updated definitions will affect employer obligations under both CDPH health orders that use such terms and the Cal/OSHA COVID-19 Emergency Temporary Standard (“ETS”), which relies on these CDPH definitions to establish workplace health and safety obligations.

In order to ensure compliance with applicable health orders and regulations, California employers must adapt their policies and practices concerning workplace COVID-19 exposures. The purpose of this special bulletin is to review the updated definitions, explain the legal implications for employers, and provide guidance as to how employers should respond in order to ensure compliance with the new legal requirements.

Revised Definition of “Close Contact” Focuses on Shared Indoor Airspace

Pursuant to the June 8, 2022 Health Order, CDPH now defines a “close contact” as follows:

[S]omeone sharing the same indoor airspace (e.g., home, clinic waiting room, airplane etc.) for a cumulative total of 15 minutes or more over a 24-hour period (for example, three individual 5-minute exposures for a total of 15 minutes) during an infected person’s (laboratory-confirmed or a clinical diagnosis) infectious period.

(Emphasis added.)

This definition removes the prior requirement that the contact must be “within six feet” to constitute a “close contact” and replaces that bright-line rule with a more ambiguous one that the individuals “shar[e] the same indoor airspace.” While the new definition “acknowledge[s] that COVID-19 is an airborne disease . . . , rather than one spread by respiratory droplets,”[2] it does not necessarily take into account how employers are to determine which employees share the same airspace in the event of a workplace exposure.

The new definition carries added significance, because the ETS uses the CDPH definition of “close contact”[3] to trigger certain workplace health and safety obligations.

Investigating and Responding to COVID-19 Cases

The most important issue will be how employers identify “close contacts” under the new, expanded, but more ambiguous definition. On June 20, 2022, CDPH provided some guidance to assist employers in this regard.

Updated Approach to Identifying “Close Contacts”

While the revised definition, in combination with regulatory obligations under the ETS, requires that employers exclude “close contacts” who are symptomatic, the CDPH also recommends prioritizing “high-risk contacts” for identification, testing, and potential exclusion. The CDPH provides the following criteria to identify such “high-risk contacts”: (1) the individual’s proximity to the COVID-19 case; (2) the duration or intensity of the exposure; and (3) any heightened risk of severe illness or death the individual might have from exposure.[4]

The CDPH’s “high-risk contact” framework exposes employers to potential liability under federal and state laws that protect the confidentiality of employee medical information. The federal Americans with Disabilities Act (“ADA”) and the California Fair Employment and Housing Act (“FEHA”) both prohibit medical inquiries unless the employer can demonstrate that the inquiry is job-related and consistent with business necessity.[5] Additionally, the California Confidentiality of Medical Information Act (“CMIA”) prohibits use or disclosure of employee medical information unless one of a few very narrow exceptions applies or the employee gives written, CMIA-compliant permission.[6]

It can be difficult and time-consuming to use or access employee medical information correctly, and the penalties for wrongful access, use, or disclosure are severe. Rather than risk issues with employee medical information, we generally advise that employers adopt the following approach in order to ensure compliance with the new definition and the associated ETS exclusion requirements:

  1. Pursuant to Labor Code section 6409.6, inform all employees in the workplace of the exposure;[7]
  2. Inform such employees that, should they present a symptom or symptoms associated with COVID-19 subsequent to the exposure, they should contact Human Resources for additional instruction;[8]
  3. Identify rooms or areas within the larger workplace where the COVID-19 case was present and where there may be “shared airspace” with other employees. These spaces may include, but are not limited to, waiting rooms, bathrooms, breakrooms, eating areas, open work areas, and rooms with open doors[9] that connect to such spaces. While “transient exposures” in hallways may not independently total 15 minutes, employers should identify such spaces for the cumulative effect the exposures in such areas may have on employees;[10] and
  4. Investigate employees’ potential exposures to the COVID-19 case in order to determine whether the employee “shar[ed] the same indoor airspace” as the COVID-19 case for 15 minutes or more.[11] If the employee meets the new definition of “close contacts” and the employee is symptomatic, the employer must instruct the symptomatic “close contact” to leave the workplace[12] and not return until satisfying the ETS return-to-work requirements.[13]

We believe the above approach will account for individuals considered “high-risk contacts” by the CDPH, as well as anyone else who qualifies as a “close contact” under the new definition. This approach is meant to ensure that the employer has discharged both its statutory and regulatory obligations. Employers should note that future orders or guidance from the CDPH might further change the approach to workplace “close contacts.”

“Infectious Period” Now Aligns with Shortened Isolation and Quarantine Periods

The CDPH Health Order also revises the definition of “infectious period” as follows:

  • For symptomatic infected persons, the period starts 2 days before the infected person had any symptoms and lasts through Day 10 after symptoms first appeared (or through Days 5-10 if testing negative on Day 5 or later), and 24 hours have passed with no fever, without the use of fever-reducing medications, and symptoms have improved.
  • For asymptomatic infected persons, the period starts 2 days before the positive specimen collection date and lasts through Day 10 after positive specimen collection date (or through Days 5-10 if testing negative on Day 5 or later) after specimen collection date for their first positive COVID-19 test.

Previously, the ETS definition of “infectious period” applied. The ETS defines “infectious period” almost identically to the new CDPH definition, except that the ETS did not account for an early end to the infectious period if the COVID-19 case tests negative on or after Day 5 and meets the other requirements listed in the CDPH definition. Now, because the CDPH has defined “infectious period” in a Health Officer Order, the ETS will follow the CDPH’s definition.[14]

Changes to the definition of “infectious period” bring it in line with current CDPH and Cal/OSHA ETS return-to-work requirements. Therefore, the updated definition should not result in any significant changes to how employers handle COVID-19 cases, workplace exclusion, or return to work.

LCW attorneys are monitoring changes to COVID-19-related requirements and stand ready to assist employers with COVID-19 response and prevention.

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[1] CDPH, “Beyond the Blueprint” (June 8, 2022) <https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Order-of-the-State-Public-Health-Officer-Beyond-Blueprint.aspx> [State Health Officer Order].

[2] CDPH, “Isolation and Quarantine Q&A” (June 20, 2022) <https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Isolation-Quarantine-QA.aspx>.

[3] 8 C.C.R. § 3205(b)(1) (stating if “close contact is defined by regulation or order of the CDPH[, then] the CDPH definition shall apply”).

[4] The CDPH has also stated a “high-risk contact” may include a person “who may experience severe illness if they become infected with COVID-19 or for whom the transmission potential is high (high intensity/duration of indoor exposure).” CDPH, “Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public” (June 9, 2022) <https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Guidance-on-Isolation-and-Quarantine-for-COVID-19-Contact-Tracing.aspx>.

[5] 42 U.S.C. § 12112(d)(4)(A) [ADA]; Gov. Code § 12940(f)(1) [FEHA].

[6] Civil Code §§ 56, et seq.

[7] 8 C.C.R. § 3205(c)(3)(B)3.

[8] 8 C.C.R. § 3205(c)(1)(A).

[9] NOTE: Current CDPH guidance does not clearly describe which rooms or areas that are connected to a “shared airspace” would also be considered part of the shared airspace. Accordingly, the most cautious approach is to treat any connected rooms or areas as part of the “shared airspace” until the CDPH publishes further guidance that clarifies the issue.

[10] CDPH, “Isolation and Quarantine Q&A” (June 20, 2022).

[11] CDPH, “Beyond the Blueprint” (June 8, 2022); CDPH, “Isolation and Quarantine Q&A” (June 20, 2022).

[12] 8 C.C.R. § 3205(c)(9)(B); CDPH, “Guidance for Local Health Jurisdictions on Isolation and Quarantine of the General Public” (June 9, 2022) [Table 2: Close Contacts – General Public].

[13] Currently, COVID-19 cases who were asymptomatic or whose symptoms are resolving may return to work if they test negative at least five days after the date that symptoms first presented or they took the specimen that resulted in the first positive test, and if the individual has gone at least 24 hours without a fever of 100.4 degrees Fahrenheit or higher without the use of fever-reducing medication. 8 C.C.R. § 3205(c)(10)(A). If symptoms are not resolving, the COVID-19 cases cannot return to work until at least 24 hours have passed without a fever of 100.4 degrees Fahrenheit or higher without the use of fever-reducing medication, the symptoms are resolving, and at least 10 days have passed since the date that symptoms first presented or they took the specimen that resulted in the first positive test. 8 C.C.R. § 3205(c)(10)(B). NOTE: ETS return-to-work requirements currently mirror the CDPH’s isolation and quarantine guidance. However, if the CDPH advises a shorter isolation or quarantine period, that shorter period would control so long as Executive Order N-84-20 is in effect.

[14] 8 C.C.R. § 3205(b)(9) (“‘Infectious period’ means the following time period, unless otherwise defined by CDPH regulation or order, in which case the CDPH definition shall apply.”).

You’ve probably heard the term “Skelly” meeting or conference hundreds, if not thousands of times, but what does “Skelly” really mean?  Even if you think you know, a refresher can’t hurt, right?!

Most California public employees have what is known as a constitutionally protected “property” interest in continued employment, once and if they successfully complete their probationary period in the position. This can make the already difficult decision to impose “significant” discipline, up to and including terminating an employee for cause, even more complex for public agencies looking to balance considerations of fairness, constitutionality, and agency operational needs. Imposing significant discipline on an employee with a property interest in the employee’s position requires an agency to provide pre-discipline and post-discipline “due process”— generally, the opportunity to be heard within a reasonable time and in a meaningful manner. Failure to provide due process protections can result in a disciplinary action being reversed or civil actions being filed against the agency.

Pre-Discipline (Skelly) vs. Post-Discipline Due Process Rights

The requirements for pre-discipline and post-discipline due process are distinct. The legal floor for pre-discipline due process that an employer must provide, as well as best practices and strategies for ensuring that a disciplinary termination is upheld, require,

(1) A written notice of intent to impose significant discipline,

(2) A reasonable time for the employee to respond,

(3) The opportunity for a Skelly conference before an appropriate “Skelly Officer,” and

(4) A final notice of discipline.

These procedural safeguards are commonly referred to as “Skelly rights” after the 1975 California Supreme Court case Skelly v. State Personnel Board.  There, the Court found that a plaintiff employee was denied due process when he was terminated, without the above safeguards, for misconduct for which he had been repeatedly counseled, reprimanded, and even suspended. In addition to these Skelly rights, agency rules, memoranda of understanding (MOUs), or collectively bargaining agreements (CBAs) may provide additional due process protections to employees.

Post-discipline or termination due process requires the opportunity for an evidentiary appellate hearing, with procedural safeguards that generally present more like a civil trial. During the hearing, the employer bears the burden of proving the charges against the employee by a “preponderance of the evidence” (i.e. greater than 50%, more likely than not). At the conclusion of the hearing, or shortly thereafter, the hearing officer or decision-making body will typically issue a detailed written decision explaining their findings on the sufficiency of the evidence and the appropriateness of the level of the discipline.

“Significant” Discipline

In the absence of agency rules or MOU provisions to the contrary, Skelly pre-disciplinary due process does not apply unless the level of discipline is “significant.” Generally, discharges, suspensions, demotions, and disciplinary reductions in pay are considered “significant.”  However, warnings (verbal or written) and reprimands are usually not considered “significant.”  Additionally “improvement needed” ratings in performance evaluations, denial of merit increases, counseling sessions, and releases during probation do not require Skelly procedures either (because they are not considered to be discipline).

Case authority suggests that, unless there is an agency rule, MOU, or practice to the contrary, suspensions of fewer than five days would not trigger the Skelly procedures, as long as the Skelly rights can be afforded during the suspension or within a reasonable time thereafter. However, notwithstanding such authority, there is risk in not using Skelly procedures before imposing discipline whenever the proposed discipline involves a loss of pay, including suspensions of fewer than five days.

Best Practices for Pre-Discipline Due Process (Skelly Proceedings)

Ensuring compliance with an employee’s Skelly rights and relevant agency policy or MOU/CBA provisions is the minimum to which an agency must adhere when imposing significant discipline on an employee.   However, in addition to such minimum requirements, implementing disciplinary best practices will help protect your agency from challenges to your agency pre-discipline processes, which could result in overturning a disciplinary decision during a post discipline appeal hearing.

  1. Adhere to the Principle and Practice of Progressive Discipline, and Document Thoroughly. More often than not, the events which lead to imposition of significant discipline begin long before Skelly rights manifest. Documentation of disciplinary actions taken before significant discipline serves as the evidentiary foundation in the event an agency needs to later issue a notice of intent to impose significant discipline. Critically, thorough and constructive documentation give employees the best opportunity to correct course, potentially removing the need for more significant discipline and Skelly procedures at all. While there are of course situations that may necessitate an agency’s need to forego progressive discipline, such situations should be considered exceptions, and not the rule.
  2. Be Fair and Transparent. When delivering the notice of intent to impose significant discipline, ensure that the letter is thorough but concise, and lacks ambiguity. The notice of intent (and final notice) should list and include as exhibits all the materials the agency relied upon in making its recommendation for the proposed discipline.

Additionally, the notices and level of discipline should be fair in light of agency past practices and procedures.  Employee discipline is often reviewed by a hearing officer or governing body in light of whether employees in similar situations received the same level of discipline. Fairness may also be judged by whether an agency follows its rules, including applicable deadlines.

  1. Ensure Consistency Between the Notice of Intent and the Final Notice of Discipline. Additional charges that were not included in the notice of intent should not be added to a final notice of discipline after the Skelly conference; otherwise, a new Skelly conference will be required. If newly discovered evidence is gathered supporting new charges, then the new charges and supporting evidence should be included in a new or amended notice of intent and the employer must provide the employee with the right to another Skelly
  2. If an Employee Elects a Skelly Conference, Pick an Appropriate “Skelly ” A Skelly conference is a meeting at which an employee has the opportunity to tell their “side of the story” or to offer any mitigating factors they believe the decision maker should consider before the discipline is finalized. Its purpose, according to the courts, is to minimize the risk of the employer making an error in the action it takes. It is important to remember that the Skelly conference is not an evidentiary hearing.  While a Skelly conference is primarily for an employee’s benefit, management can and should use the meeting as a tool to determine the strength and weaknesses of the charges; ascertain the true defenses available to the employee; and avoid surprise in the event of post-discipline appeal.

If an employee elects to have a Skelly conference, an agency should consider carefully who may be the best person to serve as the “Skelly Officer.” While the Skelly Officer should be “reasonably impartial,” and not involved in the underlying action, courts have found that it is not a violation of due process for a manager who conducted an underlying investigation to serve as the Skelly officer. Additionally, the Skelly officer should:

a. Consider making a record of the Skelly meeting/conference by audio taping it;

b. If the employee does not reveal the information on their own, consider asking questions to ascertain: (1) whether the employee denies the commission of any of the alleged conduct; and (2) the full range of defenses that the employee may be claiming, including the existence of past practices adverse to management, claims of disparate treatment, and (particularly if the employee is represented by counsel) any legal impediments to the imposition of discipline; and

c. Get the names and contact information of all witnesses who would corroborate the employee’s position.

  1. Become Familiar With, and Adhere to, Applicable Procedures and Time Limits in Your Agency’s Policies, MOU, CBA, or Statutes. For example, an agency has 30 days after deciding to impose discipline to serve a firefighter or police officer with a final notice of discipline. Or, discipline of academic employees of a community college district must be commenced within four years, and of classified employees within two years, of the conduct that forms the basis for the disciplinary action.

As a best practice, an agency should serve the final notice of discipline within 30 days after the Skelly meeting/conference. Doing so will avoid any dispute as to whether the agency timely served the final notice. Some agencies also have their own rules (e.g., personnel rules or MOU or CBA provisions), which contain specific time limits for service of disciplinary documents.

  1. Know What Kinds of Disciplinary Actions Trigger Due Process Requirements. As explained above, Skelly rights only attach to “significant” discipline. When in doubt as to whether a certain level of discipline triggers such protections, examine relevant agency rules, MOUs, or CBAs, and check with your legal counsel.

Authors: Alysha Stein-Manes and Nathan J. Price