Governor Gavin Newsom signed Assembly Bill 45 (“AB 45”) into law on October 6, 2021.  AB 45 is landmark legislation for the Cannabidiol (“CBD”) and hemp infused product industry in California.  CBD and hemp infused products became widely available across the country following the federal government’s adoption of the Agriculture Improvement Act of 2018.  Recreational marijuana use has also been legal in California since 2016 after the Control, Regulate and Tax Adult Use of Marijuana Act became law.  AB 45 extends these recent advances of the cannabis industry by formally authorizing the inclusion of CBD and hemp extracts or derivatives in dietary supplements, food, beverages, cosmetics, and other products sold in California.

What Does AB 45 Do?

AB 45 specifically allows the inclusion of CBD and hemp in a variety of products in California so long as their tetrahydrocannabinol (“THC”) concentration levels remain below 0.3%.  This requirement aims to bring manufacturers and distributors of such products into compliance with existing California law under the Sherman Food, Drug, and Cosmetic Law, and federal statutory law, which is discussed in more detail below.  AB 45 requires that any product sold or distributed in the state have documentation certifying that an independent laboratory confirmed the final form of the product does not exceed a THC concentration of 0.3%.  (Health & Saf. Code, § 111925.2.)  The bill also establishes a state regulatory scheme over such products and prohibits untrue health statements on product labels, among other things less relevant to the employment context.

Are All CBD Products Now “Legal” in California?

We have previously provided guidance, in a February 2020 Blog Post, on whether CBD products are legal.  As was the case then, the short answer to this question is “strictly speaking, no; but it is complicated.”

Uncertainty under Federal Regulators

The legal landscape at the federal level remains largely unchanged since our prior blog post.  Federal law draws a sharp distinction between cannabis products based upon their THC concentration level.  The federal government and executive agencies, such as the Drug Enforcement Agency (“DEA”), consider any cannabis product at or above 0.3% THC concentration to be marijuana.  Marijuana is considered a Schedule 1 drug under the Controlled Substances Act.  (21 U.S.C. § 812, subd. (c)(10).)  Any product below the 0.3% THC concentration threshold is considered “industrial hemp,” which is legal to produce.

Despite that distinction, the Food and Drug Administration (“FDA”) has signaled in non-binding guidance, “It is currently illegal to market CBD by adding it to a food or labeling it as a dietary supplement.” As a result, the FDA does not currently regulate such products.  In May of 2021, United States Senators Ron Wyden, Rand Paul, and Jeff Merkley introduced proposed legislation on this issue.  The stated goal of the “Hemp Access and Consumer Safety Act” is to “ensure hemp-derived CBD products are regulated by the U.S. Food and Drug Administration (“FDA”) like other legal products used in dietary supplements, foods and beverages” and to resolve the current “regulatory gray zone” that exists for these products.  Until this or similar legislation is acted upon by Congress or until the FDA changes its course, the regulatory gray zone remains at the federal level.

AB 45 only complicates matters further.  Due to the FDA’s position on CBD products, the published THC concentrations of CBD and hemp infused products have widely been considered unreliable in the past.  AB 45’s requirement that all CBD or hemp infused products contain less than 0.3% THC concentration—and that an independent laboratory verify that concentration level—aims to bring all such products into compliance with federal statutory law and existing state laws (such as the Sherman Food, Drug, and Cosmetic Law).  California’s requirements, however, now lie in tension with federal regulators like the FDA.

AB 45 passed as urgency legislation, meaning that it went into effect immediately upon signature by the Governor on October 6, 2021.  As a result—in theory—all CBD and hemp infused products sold and distributed in California must comply with AB 45’s requirements at this time and therefore comply with other relevant state laws.  Nonetheless, a risk remains that such products currently sold in California do not yet comply with state law given the short time span since AB 45 went into effect.

Should Employees Avoid CBD Products if They Must Submit to Employer-Mandated Drug Testing?

The short answer to this question is, “it depends upon the type of test and who is administering it.”  For example, employees subject to Department of Transportation (“DOT”) drug testing should carefully weigh whether to use CBD or hemp infused products.  DOT does not specifically test for CBD, but it issued a “CBD Notice” on February 18, 2020.  The CBD Notice warns, “Since the use of CBD products could lead to a positive drug test result, Department of Transportation-regulated safety-sensitive employees should exercise caution when considering whether to use CBD products.”  The Notice continues, “CBD use is not a legitimate medical explanation for a laboratory-confirmed marijuana positive result.”

Employers may receive inquiries from employees about whether using CBD or hemp infused products will generate a positive drug test.  Employers are generally not obligated to advise their employees on whether a certain substance will register on an employer-required drug test.  Employees bear the responsibility of passing employer-required drug tests as a condition of employment.  If employers are inclined to provide any advice to their employees in this scenario, they should advise them to evaluate the reliability of the product’s reported THC concentration, and, in certain situations, consult with their health care provider(s) prior to consumption.  Employers should also advise employees if use of CBD or hemp infused products will violate employer policies irrespective of whether employees are drug tested.

What Other Issues Should Employers Consider Related to Employee CBD Product Use?

Employer Policies

First and foremost, employers should examine their current drug use policies to determine whether CBD and hemp infused products are covered by that policy’s provisions.  If they are, supervisors should be aware of what the policy states about CBD and hemp infused products.  If they are not, employers should consider defining CBD and hemp infused product use and consider establishing rules relating to such use.  We recommend that any employer consult with legal counsel should they wish to revise their current drug use policy to address these products.

The Disability Interactive Process

The second major area where the use of CBD and hemp infused products is likely to arise is processing disability accommodation requests.  It is clear under California law that employers are not obligated to accommodate marijuana use and can take adverse employment actions against employees for such use, and for possession or consumption of marijuana at the workplace.  (See, e.g., Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920; Health & Saf. Code, § 11362.45 (f).)  The central holding of the Ross decision was that, despite the existence of the Compassionate Use Act, “[t]he FEHA does not require employers to accommodate the use of illegal drugs.”  (Id. at 926 [emphasis added].)  The law is far hazier on whether an employer is obligated to accommodate an employee’s off-duty use of CBD or hemp infused products as treatment for an underlying health condition.  This is especially true considering the fact that AB 45 was drafted to ensure that all CBD and hemp infused products sold in California comply with other state laws and federal statutory law.

Under the Americans with Disabilities Act (“ADA”) and the Fair Employment and Housing Act (“FEHA”), employers are generally obligated to consider modifying employment policies as a potential reasonable accommodation for a disability.  (See 42 U.S.C. §§ 12111, subd. (9)(b); 29 C.F.R. § 1630.2, subd. (o)(2)(ii).)  However, one federal district court recently cast doubt on whether an employee’s request to revise her employer’s drug use policy to allow for CBD as treatment for a medical condition could support a failure to accommodate claim under the ADA.  (See Hamric v. City of Murfreesboro (M.D. Tenn., Sept. 10, 2020, No. 3:18-CV-01239) 2020 WL 5424104, at *5.)  Some states, such as Virginia, have passed legislation that expressly forbids employers from disciplining employees for lawful CBD use if the employee possesses documentation from a health care provider that states such use is part of the employee’s treatment plan.  However, even Virginia’s law allows employers to take adverse action against employees that are impaired on the job from such use.  Given the wide array of situations an accommodation request can arise in, employers should consult with legal counsel and tread thoughtfully when responding to an employee accommodation request involving CBD or hemp infused products as a potential treatment for a disability.

There are a number of unresolved legal issues surrounding the use of CBD and hemp infused products in California.  Employers should continue to monitor this fast-moving legal space for further guidance.

On January 27, 2022, the California Supreme Court unanimously decided that the McDonnell Douglas burden-shifting analysis that is widely used to determine whether an employment discrimination or retaliation case should be dismissed before trial does not apply to whistleblower retaliation claims brought under California Labor Code section 1102.5. As a result, employers will face a higher burden to obtain summary judgment before trial in whistleblower retaliation cases.

The case prompting this question was Lawson v. PPG Architectural Finishes, Inc. (Lawson), which was originally pending in the Ninth Circuit Court of Appeals. The Ninth Circuit certified the following question of state law for the California Supreme Court to answer: “Does the evidentiary standard outlined in Section 1102.6 of the California Labor Code replace the McDonnell Douglas test as the evidentiary standard for retaliation claims brought under Section 1102.5 of California’s Labor Code?”

Lawson v. PPG Architectural Finishes, Inc.
Lawson worked as a territory manager for a manufacturer that sold paint and other home-improvement products to retailers. Lawson claimed that his supervisor asked him to “mistint” slow-selling paint products at Lowe’s stores in order to allow the manufacturer to fraudulently avoid having to repurchase the slow-selling paint. Lawson claims he refused and reported the directive to the company – twice. During the same month he first reported this directive to the company, he was placed on a Performance Improvement Plan. After he submitted his second complaint, he received a low rating for his work and was eventually terminated. Lawson filed a complaint against the manufacturer alleging that he was retaliated against as a whistleblower for his reports about the request to “mistint” the paint.

The employer in Lawson moved for summary judgment. The trial court applied the McDonnell Douglas burden-shifting test to Lawson’s whistleblower claim. For nearly 40 years the McDonnell Douglas has set forth the process for summary judgment motions in employment discrimination and retaliation cases in both state and federal courts, except for the rare cases in which direct evidence of discrimination or retaliation is shown.

McDonnell Douglas Test
Step One: The Plaintiff must establish, by a preponderance of evidence, their prima facie case of retaliation : (1) that they engaged in protected activity; (2) that they suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action.

Step Two: If the Plaintiff can do so, the Defendant Employer must carry the burden of production to articulate a legitimate, non-retaliatory reason for the adverse employment action.

Step Three: If the Defendant carries its burden, the Plaintiff is then given the opportunity to prove, by a preponderance of evidence, that the Defendant Employer’s stated reason was in fact pretext.

After applying this well-established framework to Lawson’s section 1102.5 whistleblower retaliation claim, the federal trial court found that Lawson failed to carry his burden of showing pretext and granted summary judgment to his employer. Lawson appealed to the Ninth Circuit.

Lawson argued in his appeal that the trial court should have applied the evidentiary standard set forth in California Labor Code section 1102.6 – not the McDonnell Douglas test – to his section 1102.5 retaliation claim. Under section 1102.6, the test operates as follows:

Section 1102.6 Test
Step One: the Plaintiff must establish, by a preponderance of evidence, that retaliation for their protected activities was a contributing factor in the contested employment action.

Step Two: Once the Plaintiff makes the required showing, the burden shifts to the Defendant Employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even if the plaintiff had not engaged in protected activity.

The preponderance of evidence test in Step One requires the employee to prove that a fact is more likely than not true, whereas the clear and convincing test in Step Two requires the employer to prove that it is highly probable that the fact is true.

Ninth Circuit
The Ninth Circuit reviewed existing case law and found that some courts insisted on applying the McDonnell Douglas framework for summary judgment motions, while other courts applied the section 1102.6 framework. The Ninth Circuit noted that “the continued application of McDonnell Douglas to section 1102.5 retaliation claims seems to ignore a critical intervening statutory amendment” – Senate Bill 777 of 2003. According to the Ninth Circuit, “the California legislature thus expressly adopted a burden-shifting evidentiary standard that seemingly replaced the McDonnell Douglas test for section 1102.5 retaliation claims.” As a result, the Ninth Circuit asked the California Supreme Court to decide which test it should apply to a summary judgment motion on a section 1102.5 claim.

California Supreme Court
In its January 27, 2022 decision, the California Supreme Court unanimously decided that trial courts should apply the Labor Code section 1102.6 test when evaluating whistleblower retaliation claims brought under Section 1102.5, and not the McDonnell Douglas test. The Court reasoned that while both McDonnell Douglas and section 1102.6 offer a method for proving retaliatory intent, the California Legislature in 2003 intentionally added section 1102.6 to establish the evidentiary burdens of both parties to a whistleblower retaliation action. (Slip Opinion, pg. 7; 10). The Court noted that in drafting section 1102.6, the Legislature departed from the McDonnell Douglas presumption that an employer has a single reason for taking an adverse action against an employer, and instead established a “contributing factor” inquiry that contemplates an employer having multiple possible reasons for the employment action. (pg. 12). Under this inquiry, even if an employer has a genuine, nonretaliatory reason for its adverse action, the plaintiff may prove a violation of section 1102.5 by showing that the employer also had at least one retaliatory reason that was a contributing factor to the employment decision. (pg. 11; 15).

As a result, the Court found that the well-established McDonnell Douglas framework does not work for the evaluation of section 1102.5 whistleblower retaliation claims, as these claims contemplate multiple reasons for the disputed adverse employment action. (pg. 14-15). Thus, the Court decided that section 1102.6 provides the governing whistleblower retaliation framework for summary judgment motions on section 1102.5 claims.

What this means for Employers
Although California jury instructions had already adopted the section 1102.6 clear and convincing standard for trials long ago, most California courts had continued to use the McDonnell Douglas burden shifting test for summary judgment motions on section 1102.5 claims. The rejection of the McDonnell Douglas test will make it more difficult for employers to obtain summary judgment of whistleblower retaliation claims under section 1102.5 by requiring employers to meet a significantly higher evidentiary standard – clear and convincing – to prove their legitimate business decision, and by enabling employees to defeat summary judgment without disproving an employer’s legitimate business reason if the employee can show a retaliatory reason was a contributing factor to the decision.

Liebert Cassidy Whitmore is here to address any questions and claims regarding this matter.

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.

In light of the current surge in COVID-19 cases, it is important that employers understand their obligations in the event that there is a COVID-19 outbreak at one of their workplaces.

This blog post is intended to provide an overview of the various statutory and regulatory obligations that employers have during an outbreak so that employers can discharge their legal duties and return their operations to normal as soon as possible.

Laws Implicated During a COVID-19 Outbreak

There are two laws that are implicated by workplace COVID-19 outbreaks: (1) Labor Code section 6409.6, which requires that the employer provide notice to the local health department in the event of an outbreak; and (2) the Cal/OSHA COVID-19 Emergency Temporary Standard (“ETS”), which imposes a number of regulatory requirements when there is an outbreak.

Defining “COVID-19 Outbreak”

The Labor Code and Cal/OSHA ETS use similar, but slightly different, definitions for the term “COVID-19 outbreak.” As discussed herein, the difference in the definitions may lead to the unusual or unexpected circumstance where there is an outbreak according to the Labor Code, but not under the Cal/OSHA ETS.

Statutory Definition of an Outbreak under the Labor Code is Broader

The Labor Code relies on the California Department of Public Health (“CDPH”) definition of COVID-19 outbreak. That definition provides that an outbreak means “[a]t least three COVID-19 cases among workers at the same worksite within a 14-day period.” The Labor Code defines “worksite” to mean “the building, store, facility, agricultural field, or other location where a worker worked during the infectious period.” (Lab. Code § 6409.6(d)(7).) As a result of the use and definition on the term “worksite,” the Labor Code provided a definition of “COVID-19 outbreak” that is broader than the Cal/OSHA ETS definition.

Regulatory Definition of an Outbreak under the Cal/OSHA ETS is Narrower

The Cal/OSHA ETS defines the term COVID-19 outbreak to mean “three (3) or more employee COVID-19 cases within an exposed group … [who have] visited the workplace during their high-risk exposure period at any time during a 14-day period.” While the ETS defines the term “exposed group” as meaning “all employees at a work location, working area, or a common area at work, where an employee COVID-19 case was present at any time during the high-risk exposure period” (8 C.C.R. § 3205(b)(7)), it expressly excludes from inclusion work locations that a COVID-19 case momentarily passed through or that the individual visited for less than 15 minutes while using a face covering. As a result, the regulatory definition of an outbreak is more limited than that under the Labor Code.

The Cal/OSHA ETS definitions allow employers to potentially reduce the number of workplace outbreaks by subdividing their “worksites” into smaller “work locations, working areas, or common areas,” and using these specific locations, as opposed to the worksite generally, to determine when there is an outbreak. As a result, there may be circumstances that would constitute an outbreak under the Labor Code, but not under the Cal/OSHA ETS.

Given the different definitions of COVID-19 outbreaks under the Labor Code and Cal/OSHA, employers may want to consider how they will approach a workplace outbreak and whether they would treat an outbreak under the Labor Code as also constituting an outbreak under the Cal/OSHA ETS, despite the different definitions and more specific regulatory criteria.

Statutory Obligations under Labor Code Section 6409.6

As provided above, the principal statutory requirement under Labor Code section 6409.6 is to provide notice of a workplace COVID-19 outbreak to the local health department.

Under that section, upon learning of a COVID-19 outbreak at a worksite, the employer must, within 48 hours or one business day, whichever is later, notify the local public health agency of the following:

  • The names of the employees who are COVID-19 cases;
  • The number of COVID-19 cases;
  • The occupations of the COVID-19 cases;
  • The worksites of COVID-19 cases;
  • The business address of the worksite; and
  • The North American Industry Classification System (“NAICS”) code of the worksite where the COVID-19 cases work.

The employer must further notify the local health department of any subsequent COVID-19 cases at that worksite. (Lab. Code § 6409.6(b).)

In order to comply with these requirements, and hopefully in advance of an actual outbreak, employers should identify the appropriate contact at the local health department to receive the outbreak notice as well as the form, if any, required by the health department to report COVID-19 outbreaks. As always, employers should monitor COVID-19 cases in the workplace and be prepared to report an outbreak if, and when, there are three or more cases in the 14 day period.

Regulatory Obligations under Cal/OSHA ETS

In addition to the statutory notice obligations, the Cal/OSHA ETS imposes regulatory requirements on employers in the event of a workplace outbreak. (8 C.C.R. § 3205.1.).

COVID-19 Testing

Where there is an outbreak, the regulations require that employers make COVID-19 testing available at no cost to employees in the exposed group during such employees’ paid time. (8 C.C.R. § 3205.1(b).)

Employers must offer this testing immediately after becoming aware of the outbreak and then again one week later. Furthermore, employers must continue to offer such testing to employees in the exposed group until no new COVID-19 cases are detected in the exposed group for 14 days. (8 C.C.R. § 3205.1(b)(2)(B).)

This requirement does not apply to (1) employees who were not present during the 14 day period, (2) symptomless and fully vaccinated employees who were fully vaccinated before the outbreak, and (3) COVID-19 cases who returned to work (for 90 days after their diagnosis/start of symptoms).

Face Coverings and Social Distancing

In the event of an outbreak, employers must also ensure that employees in the exposed group wear face coverings and observe physical distancing. Specifically, employers must ensure the following: (1) employees in the exposed group wear face coverings when indoors, or when outdoors and less than six feet from another person, (2) unvaccinated employees in the exposed group are given notice of their right to request a respirator for their use at work, and (3) the employer implements physical distancing requirements in the workplace and evaluates the need for solid partitions between work stations. (8 C.C.R. § 3205.1(d).)

Employers should document their compliance with each of these requirements.

Investigation and Changes

Finally, employers must immediately perform a review of their COVID-19 policies, procedures, and controls. If such review indicates that changes are needed to prevent the further transmission of the virus that causes COVID-19 in the workplace, such remedial measures must be undertaken. (8 C.C.R. § 3205.1(e).) Employers must document this review and any remedial actions and update it every 30 days until the outbreak has concluded.

In sum, upon the identification of an outbreak at the workplace, employers must immediately notify the local health department and transmit the required information in a timely manner. The employer must then offer COVID-19 testing at no cost to the employees in the exposed group, during such employees’ paid time. This testing should continue to be offered until no new COVID-19 cases in the exposed group are detected. Finally, in addition to reviewing relevant COVID-19 policies and procedures, and enacting any needed changes, employers must also ensure that employees in the exposed group wear face coverings and engage in physical distancing.

The start of the New Year brought with it a new wave of labor and employment legislation that employers should note, including changes to many existing laws. In this blog we’ve summarized a few key new changes that went into effect on January 1, 2022.

1. SB 3: Minimum Wage Increase

The final step increase of SB 3 went into effect on January 1, 2022, bringing California’s minimum wage to $15/hour for employers with greater than 26 employees. As a reminder, recent case law established that the state minimum wage laws apply to both general law and charter cities and counties.

2.  AB 1033: Expanded Family Leave

AB 1033 expands the definition of “parent” under the California Family Rights Act to include a “parent-in-law.” Accordingly, employees are eligible to take CFRA leave to care for parent-in-laws. The bill also makes procedural changes to the small employer mediation program that is in place for employers with 5 to 19 employees. The bill requires that when an employee requests an immediate right to sue letter for a CFRA claim, the Department of Fair Employment and Housing (“DFEH”) must notify the employee in writing that if either party requests mediation, mediation must be completed prior to filing suit.

3. SB 807: Retention of Personnel Records

SB 807 changed the requirements regarding an employer’s duty to maintain and preserve personnel records. Previously, employers only had to maintain such records for two years. Under the new law, however, such records must be kept for at least four years, and possibly longer if a Department of Fair Employment and Housing complaint has been filed. The four-year timer starts from the date the personnel file was created, though the timer “restarts” from the date of termination or “non-hire” of an applicant.

4. SB 657- Workplace Postings

SB 657 states that employers may provide any required workplace postings by email and include any accompanying posters or flyers as attachments. However, the bill explicitly states this does not alter any requirements to physically display the required postings.

5. AB 1561- Extended Exemptions for Determining Independent Contractor Status

AB 1561 amends new legislation from 2019 determining when a worker is an employee or independent contractor (a distinction that can have consequences in many areas of employment law). As described below, AB 1561’s changes relate to narrow types of workers, including those not involved in the public sector. But we thought the independent contractor law is important enough that its amendment deserves mention here, along with a quick refresher on the law.

To understand AB 1561, it is first necessary to discuss the background of AB 5. Passed in 2019, AB 5 codified what is known as the “ABC” test to determine if workers are employees or independent contractors. The test was established by the California Supreme Court case of Dynamex Operations West, Inc. v. Superior Court (S222732) to streamline how to determine whether a worker should be classified as an employee or independent contractor. Under the “ABC” test, a worker is considered an independent contractor only if the employer establishes:

a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
b) that the worker performs work that is outside the usual course of the hiring entity’s business; and
c) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

AB 5 contained several exemptions, however, which allowed the previous “Borello” test to be used instead of the “ABC” test to determine a worker’s classification.

AB 1561 clarifies the scope of the exemption granted to certain narrow classes of employees. For example, the law updates the exemption for a data aggregator and a research subject who willingly engages with a data aggregator to provide individualized feedback, by formally defining the term “research subject”. The bill also removes the condition that any consideration paid for the feedback provided, if prorated to an hourly basis, is an amount equivalent to or greater than the minimum wage.

While these changes may not affect public agencies given the extensions only apply to a few narrow classifications of workers, LCW will be watching for any further changes to this independent contractor law.

We will continue to provide developments on important new legislation affecting California workers.

We are excited to announce a new video series designed especially to serve our public safety clients. Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.

 

The First Amendment to the United States Constitution includes both an establishment clause and a free exercise clause.  Of these, the free exercise clause is often invoked in the employment context to challenge employer policies that, while facially neutral and generally applicable, incidentally burden religion.

In Employment Division, Department of Human Resources of Oregon v. Smith, decided in 1990, the State of Oregon denied unemployment benefits to individuals terminated from their jobs for ingestion of peyote for sacramental purposes at a ceremony for their Native American Church.  Peyote was classified as a Schedule I “controlled substance,” and Oregon state law prohibited possession of such substances unless prescribed by a medical practitioner.  The individuals challenged the denial of unemployment benefits and the law under the free exercise clause.  The United States Supreme Court found that the law was facially neutral and generally applicable and, as such, survived the individuals’ challenge because it was rationally related to a legitimate purpose (i.e., prevention of physical harm attendant to the use of Schedule I “controlled substances”).

For the past 31 years, the rational basis standard set forth in Smith has controlled the analytical framework applicable to a free exercise challenge of a law or policy that is facially neutral and generally applicable.  Of the three standards of review employed by the Supreme Court, rational basis – the standard applied by Smith — is the lowest level of scrutiny, and therefore the easiest to meet.  Intermediate and strict scrutiny become progressively more difficult to meet, with strict scrutiny being the highest level of review.

A prominent Supreme Court case decided several months ago in June 2021, however, Fulton v. City of Philadelphia, threatened to upend the decades-old precedent set forth in Smith.  Fulton considered whether a City’s Department of Human Services could stop referring foster children to a foster care agency, Catholic Social Services (“CSS”), because CSS refused to work with same-sex foster parents.  CSS argued that the Department’s decision violated CSS’s free exercise rights.

At oral argument on November 4, 2020, CSS urged the Supreme Court to overturn Smith.  CSS argued that the rational basis standard of review set forth in Smith should be replaced with strict scrutiny.  Had CSS prevailed in persuading the Court to overturn Smith and adopt a strict scrutiny standard of review, a facially neutral and generally applicable policy that incidentally burdened religion would not have survived a free exercise challenge unless it was narrowly-tailored to further a compelling governmental interest (a very high standard of review).

The Supreme Court ultimately declined CSS’s invitation to overturn Smith, holding on June 17, 2021 that the Fulton case’s underlying facts fell outside Smith’s scope.  The Court explained that Smith controls policies that are facially neutral and generally applicable, whereas the policies at issue in Fulton failed to meet either of these requirements.  In practical effect, the Court’s Fulton decision does not alter the existing free exercise analytical framework applicable to laws or policies that are both facially neutral and generally applicable.

Smith therefore survives for now.  But, for how long is an open question.

While joining the Court’s opinion, Justice Barrett penned a concurring opinion, noting: “I … see no reason to decide in this case whether Smith should be overruled, much less what should replace it.”  However, Justice Barrett added that in her view, “the textual and structural arguments against Smith are more compelling.”  Justice Kavanaugh joined in Justice Barrett’s concurring opinion.

Justice Alito also authored a lengthy concurring opinion, writing that Smith “committed a constitutional error,” and should be revisited shortly and overruled (and that the Court should have done this in Fulton).  Justices Thomas and Gorsuch joined in Justice Alito’s opinion.

While Smith remains good law at this time, three justices have openly called for it to be overruled, and two more have suggested that they find the arguments against it to be compelling.  Simply stated, it appears that a majority of five justices are ready and willing to revisit and overturn Smith if presented with a case permitting the Court to do so.  The only question is when that case will make its way to the Court.

Should the Supreme Court overturn Smith, employers could face many more constitutional challenges to policies that are facially neutral and generally applicable.  We will keep readers posted on developments.

Over the last two years, Human Resources professionals and Risk Managers have contended with a host of novel issues raised by the COVID-19 pandemic. This blog post presents a broad overview of some of the more prominent issues related to COVID-19 in an effort to provide some clarity and perspective to California employers. Liebert Cassidy Whitmore regularly writes on these and related issues. Keep an eye on future blog posts for more information.

Monitoring Updates at Every Level of Government

COVID-19-related guidance and requirements can be difficult to track. Changes occur so quickly that they often leave employers scrambling to catch up. Employers can strengthen their ability to track updates by familiarizing themselves with the main sources of guidance and requirements.

State Guidance and Requirements

For most California employers, changes at the state level will be the most important developments to monitor. Many developments will come from one of four sources: regulations from the Division of Occupational Safety and Health (also known as Cal/OSHA); Health Officer Orders and Guidance from the California Department of Public Health (“CDPH”); Executive Orders from the Governor; and new legislation from the California Legislature.

Cal/OSHA’s COVID-19 Emergency Temporary Standard (“ETS”) (8 C.C.R. § 3205, et seq.) has provided a relatively consistent set of COVID-19-related regulations. It outlines workplace requirements that apply to most public and private employers, all of which are designed to prevent the spread of COVID-19. The Occupational Safety and Health Appeals Board (“OSHSB”) has amended the Cal/OSHA ETS from time to time, in order to address changes in the pandemic. Employers can monitor the meeting schedule and agendas of the OSHSB for proposed changes to Cal/OSHA’s ETS. The OSHSB adopted the most recent amendments on December 16, 2021. Readers can find an overview of those changes here.

The COVID-19 pandemic has led to several short-term Executive Orders and legislative bills. Employers may check both authorities directly through online sources. LCW also monitors and announces significant changes through its labor and employment blog and Special Bulletins.

CDPH Health Officer Orders and guidance are also available online. Most recently, the CDPH updated its Guidance for the Use of Face Coverings, which requires all individuals to wear face coverings while indoors from December 15, 2021 to at least January 15, 2022 (subject to a few exceptions). Readers will find more information on the updated CDPH face covering requirements here. Although the CDPH called its update “guidance,” the changes are mandatory due to its June 11, 2021 Health Officer Order. The June 11 Order requires all individuals to follow CDPH’s face covering guidance, including its most recent iteration. When reading CDPH orders and guidance, employers should check the orders currently in effect to see whether they change the applicability of related guidance.

Local Guidance and Requirements

Once an employer reviews state-level guidance or requirements, it should check local authorities for further information. In many jurisdictions, this will mean checking the local health department for Health Officer Orders or COVID-19-related guidance. Local requirements can supplement – but cannot contradict – state requirements. For example, the August 5, 2021 CDPH Order requires employees in a number of healthcare fields to become vaccinated against COVID-19. Shortly afterward, the Los Angeles County Department of Public Health (“LACDPH”) issued a local Health Officer Order expanding the categories of healthcare workers who must be vaccinated. Employers within Los Angeles County must follow both the state and local orders. As a general rule, agencies should identify their local authorities and track updates that may supplement state-level requirements.

Federal Guidance and Requirements

The Centers for Disease Control and Prevention (“CDC”) has provided the most common source of federal guidance. Employers should check CDC guidance regularly, because many other authorities cite to the CDC directly or design their own guidance and requirements based on information from the CDC.

Congress has produced a number of laws to address the COVID-19 pandemic. It has dedicated an unprecedented level of funding to offset pandemic impacts. The President has also taken steps to address the pandemic. Most recently, he instructed the federal Occupational Safety and Health Administration (“OSHA”) to issue its own Emergency Temporary Standard that would require vaccination or testing for many employers nationwide. Federal OSHA’s Emergency Temporary Standard (“ETS”) recently withstood challenge in the Sixth Circuit Court of Appeals. OSHA will begin enforcing the COVID-19 ETS on January 10, 2022, further legal challenges notwithstanding. LCW monitors new and proposed federal legislation and regulations closely. Employers can refer to LCW’s Special Bulletins and newsletters for COVID-19-related federal updates.

 

Implementing Vaccine Requirements

Existing law does not prohibit employers from implementing a COVID-19 vaccine mandate. However, the process still involves certain considerations and requirements. First, employers should record the vaccine mandate in a written policy. Written policies promote even and consistent application. An effective vaccine mandate should also give employees time to comply with vaccination requirements, as well as describe methods for seeking accommodation. If employers adopt a vaccine mandate for applicants, they should make the requirement clear from the outset and should not ask an applicant’s vaccination status until they have extended a conditional offer for employment.

Employers must also engage in effects bargaining with employee representative organizations. Effects bargaining may cover issues like the timing of the requirement, how long employees have to come into compliance, how exemptions to a vaccine mandate will be evaluated by the employer, and how discipline will be applied.

While current definitions of the term “fully vaccinated” do not include taking booster shots, employers should monitor the CDC and CDPH in case definitions change and boosters are needed. If that happens, employers will need to update existing vaccine mandates to account for boosters.

Religious Accommodations to Vaccine Requirements

Title VII of the Civil Rights Act of 1964 and the California Fair Employment and Housing Act (“FEHA”) protect employees’ religious beliefs at the federal and state levels. In the past, employers received religious accommodation requests infrequently when compared to requests for accommodation based on other characteristics, such as disability. Recently, employers have received increasing numbers of religious accommodation requests in response to COVID-19 vaccine mandates.

Once the employer becomes aware that a conflict exists between an employee’s religious belief, observance, or practice and a job requirement (e.g., vaccination against COVID-19), the employer is obligated to evaluate a potential reasonable accommodation. California regulations and federal guidance describe that an accommodation is reasonable if it eliminates the conflict between the employee’s religious belief and the job requirement. Under both Title VII and the FEHA, an employer is obligated to consider all potential reasonable accommodations; although, the employer need not offer the specific accommodation that the employee requested. An employer is excused from its obligation to accommodate only if it can show that any potential accommodation would impose an undue hardship. (Note, Title VII and the FEHA define “undue hardship” differently. Employers should consider consulting legal counsel before denying a religious accommodation request on the basis that it imposes an undue hardship.)

Employers that receive religious accommodation requests should approach each request as an individualized inquiry. Employers have an obligation to engage employees in an interactive process with the goal of identifying a reasonable accommodation.

Ongoing Duty to Exclude from the Workplace

The Cal/OSHA ETS requires employers to exclude employees from the physical workplace when an employee either has COVID-19 (positive test, positive diagnosis, or ordered to isolate) or has a close contact exposure with someone who has COVID-19 (was within 6 feet of a person with COVID-19 for a cumulative 15 minutes in any 24-hour period). The Cal/OSHA ETS also requires employers to maintain the excluded employee’s compensation, seniority, and benefits while excluded.

There are several exceptions to the exclusion requirement. If an employer can show that the employee’s close contact exposure was not work-related, then it does not need to maintain compensation, seniority, or benefits while the employee is excluded. The employer also has no obligation where the employee received disability payments or was covered by workers’ compensation and received temporary disability. Separately, an employee who had a close contact exposure need not be excluded from the workplace at all if the employee meets one of several, enumerated exceptions.

Through September 30, 2021, California required employers to provide up to 80 hours of Supplemental Paid Sick Leave (“SPSL”) to employees for COVID-19-related reasons. Employers often used SPSL to compensate employees who were excluded from the workplace under the Cal/OSHA ETS. However, the expiration of SPSL had no effect on the obligation to compensate excluded employees under the Cal/OSHA ETS. The obligations of the ETS are still effective. If an employer does not have another source of compensation available to an excluded employee, it is still obligated to maintain the employee’s compensation, seniority, and benefits unless an exception from the Cal/OSHA ETS applies.

Teleworking Considerations

Many employers relied on remote work, or “telework,” arrangements to survive the initial disruption caused by the pandemic. Now that telework has proven in many circumstances to be a viable option, some employers are evaluating expanded teleworking policies (some permanent and some on a trial basis). Employers that do so should consider designing the policy so that the employer retains discretion rather than making telework a guaranteed benefit. Certain jobs are better suited for to teleworking, while others are poorly suited or incompatible to telework. Additionally, conditions or job demands may change and may affect the practicality of teleworking arrangements. Employers should also consider potential obligations to compensate employees under Labor Code section 2802, on indemnification for expenditures, which may arise from telework arrangements. This is particularly true if teleworking is required.

Conclusion

As many HR specialists and risk managers have learned, the COVID-19 pandemic presents an ongoing challenge to remain current with applicable laws. Luckily, employers need not handle the shifting challenges alone. Experienced counsel can help employers meet the various demands created by COVID-19.

Now that the holiday season is upon us, employers can anticipate that a number of employees will make travel plans to see loved ones who they may not have been able to see in-person due to the COVID-19 pandemic. For this reason, it is important for employers to be clear and transparent with their workforce about their expectations for those who engage in travel or other high-risk activities, such as large gatherings, which can increase the spread of COVID-19. It is also crucial for employers to communicate with their workforce to comply with all federal, state, and local orders regarding travel and gatherings to avoid increasing the risk of COVID-19 infection when they return to work.

The Centers for Disease Control (CDC) and California Department of Public Health (CDPH) have provided recommendations for travel during COVID-19, and these recommendations differ for vaccinated and unvaccinated individuals. Following these recommended guidelines is essential in providing a safe and healthy environment in the workplace.

Recommendations for Vaccinated Individuals

The current guidance from the CDC and the CDPH recommends individuals delay travel until they are fully vaccinated. Someone is considered fully vaccinated for COVID-19 two weeks after their second dose in a two-dose series (Pfizer-BioNTech, Moderna, or other vaccine authorized by the World Health Organization), or two weeks after receiving a single-dose vaccine (Johnson and Johnson). Fully vaccinated individuals may travel within the United States without having to test or quarantine, as long as they remain asymptomatic. However, fully vaccinated individuals should still self-monitor for COVID-19 symptoms and get tested if symptoms develop.

Recommendations for Unvaccinated Individuals

The CDC and CDPH recommend that individuals who are not fully vaccinated refrain from traveling to avoid the risk of contracting COVID-19. Should an unvaccinated individual decide to travel, the individual should arrange to take a viral test one to three days before the trip and get tested again within three to five days after returning from travel. The individual should also quarantine for seven days upon return, even if the individual tests negative for COVID-19. If the individual tests positive for COVID-19, the individual should isolate to protect others from getting infected. Individuals who choose not to get tested for COVID-19 after traveling should stay home and self-quarantine for ten days after travel. Upon returning from travel, unvaccinated individuals should also avoid being around people who are at increased risk for severe illness, self-monitor for COVID-19 symptoms and get tested if symptoms develop, and follow all federal, state, and local recommendations or requirements.

The CDC has also noted that effective December 6, 2021, all international air passengers, regardless of vaccination status, must show a negative COVID-19 test taken no more than one day before travel to the United States. Additionally, regardless of vaccination status, all individuals are required to wear a mask indoors on planes, buses, trains, and other forms of public transportation. Individuals should also follow all state and local recommendations, requirements, and safety precautions, including wearing a mask, social distancing, and washing hands frequently.

Employers should consider how they intend to address the guidance and recommendations provided in the CDC and CDPH’s travel advisories. For example, employers can consider recommending that unvaccinated employees refrain from engaging in high-risk travel and activities during the holidays, and may require them to get tested or stay home after travel. Finally, employers should continue to keep their workforce updated on their policies regarding returning to work after travel, and continue to follow the recommendations of local public health officers, the state, and the CDC regarding traveling.

We are excited to announce a new video series designed especially to serve our public safety clients. Our short Public Safety Video Briefings will tackle cutting-edge issues and core principles relevant to public safety employers. We hope you find these videos useful and thought-provoking.