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

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

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

 COVID-19 Prevention Program

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

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

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

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

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

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

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

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

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

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

(a) the symptoms associated with COVID-19;

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

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

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

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

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

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

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

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

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

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

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

(c) implementing cleaning and disinfecting procedures;

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

(e) evaluating the need for additional PPE.

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

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

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

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

Significant Changes in the Law

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

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

Protocol Where There are COVID-19 Outbreaks and Major Outbreaks

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

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

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

 Conclusions

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

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

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

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

On November 25, 2020, Liebert Cassidy Whitmore issued a special bulletin concerning an emergency regulation (8 C.C.R. 3205) that the California Occupational Safety and Health Standards Board (“OSHSB”) adopted concerning the adoption and implementation of a COVID-19 Prevention Program (“CPP”). The emergency regulation requires that, effective November 30, 2020, all public agencies adopt and implement a CPP in order to reduce transmission of the virus that causes COVID-19 at agency worksites and facilities.

As a result, public agencies that have not already adopted and implemented a CPP, must take immediate action to do so. Subsequent to the adoption of a regulatory-compliant CPP, agencies must review and, as necessary, modify existing agency policies and practices also comply with the requirements set forth in the emergency regulation.

In order to assist public agencies with this burdensome and time-consuming undertaking, Liebert Cassidy Whitmore drafted a template CPP that agencies may adopt in order to establish compliance with the requirements in the emergency regulation. To accompany the template, Liebert Cassidy Whitmore also drafted a guide that identifies specific obligations under the regulation so that public agencies may more easily identify existing agency policies and practices that require modification.

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

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

 

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

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

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

COVID-19 Prevention Program

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

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

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

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

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

Significant Changes in the Law

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

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

Protocol Where There are COVID-19 Outbreaks and Major Outbreaks

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

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

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

Conclusions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

November 17

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

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

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

November 18

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

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

November 19

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

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

November 20

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

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

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

November 16

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

November 17

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

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

November 18

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

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

November 19

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

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

November 20

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

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

Learn more about the CALPELRA Conference here. 

On November 13, 2020, in response to alarming increases in the incidence rates of COVID-19 in other countries and states, the California Department of Public Health (“CDPH”) issued a travel advisory to California residents.

The travel advisory expressly recommends that California residents not engage in non-essential travel out of the state at this time. CDPH advises California residents to remain at home or close to home in order to reduce the risk of contracting and/or transmitting the virus that causes COVID-19. CDPH provides that travel itself may present a risk for exposure to the virus that causes COVID-19, particularly travel by a shared conveyance or common carrier, such as a commercial airplane, bus or railcar.

Importantly, the CDPH travel advisory recommends that any California resident who travels out of state, whether internationally or domestically, for non-essential reasons self-quarantine for 14 days upon their return to California. During the self-quarantine, CDPH advises individuals to limit their interactions to only members of their immediate family.

While the CDPH travel advisory does not constitute an order for residents to stay home or to quarantine following high-risk travel out of state or by shared conveyance, the public health guidance is indicative of the seriousness of the current state of the present public health emergency.

Public agencies should consider how they intend to address the guidance and recommendations provided in the CDPH travel advisory. Public agencies may consider notifying employees and employee organizations about the CDPH guidance, recommending that employees not engage in high-risk travel during the holidays or until such time as CDPH and other public health authorities advise that the increased risk of such activity has abated, or undertaking other health and safety measures related to their operations.

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

Since Governor Gavin Newsom declared a state of emergency in response to the COVID-19 pandemic on March 4, 2020, he has issued more than 50 executive orders. Some of those orders directly impact existing statutory law.

In a recent challenge to Governor Newsom’s Executive Order N-67-20 on elections, Sutter County Superior Court Judge Sarah H. Heckman issued a tentative decision on November 2, 2020 following a court trial in Gallagher et al. v. Gavin Newsom, Case No. CVCS20-0912. The court’s tentative decision becomes final after 10 days unless the parties request a statement of decision or make new proposals to the judge. The plaintiffs brought the action against Governor Newsom, alleging he exceeded his constitutional authority by “unilaterally amending, altering, or changing existing statutory law or making new statutory law” through emergency executive orders. The court’s decision, however, was not limited to a particular order but considered generally the governor’s ability to alter statutory law with executive orders.

Judge Heckman acknowledged the governor has limited powers to suspend regulations and statutes during a declared emergency in accordance with the California Emergency Services Act (CESA) [Gov. Code §§ 8565-8574], but also concluded the CESA does not confer authority or power upon the governor to assume the Legislature’s role in making or amending statutes. The court declared Executive Order N-67-20 void as “an unconstitutional exercise of legislative power” and that it has no further force or effect.

In addition to declaring the order unconstitutional, the court issued a broad permanent injunction prohibiting the governor from “exercising any power under the [CESA] which amends, alters, or changes existing statutory law or makes new statutory law or legislative policy.” The court’s decision likely invalidates all statutory changes the governor has implemented by executive order.

In his March 30, 2020 Executive Order N-40-20, Governor Newsom extended the statute of limitations in Government Code section 3304, subdivision (d) of the Public Safety Officers Procedural Bill of Rights Act. Existing statutory law provides that a public agency cannot take punitive action against a public safety officer unless the investigation is concluded within one year of the agency’s discovery of potential misconduct by a person authorized to initiate an investigation of the allegation. The agency is also required to notify the public safety officer of its intent to discipline within that same year, subject to certain exceptions. Paragraph 15 of Executive Order N-40-20 extended the 3304, subdivision (d) one year statute of limitations by 60 days.

The governor’s extension of the one year statute of limitations effectively amends or alters existing statutory law. As a result of Judge Heckman’s decision and permanent injunction, the 60 day extension for concluding investigations of public safety officers likely is invalid. Given the Gallagher et al. v. Gavin Newsom decision, agencies should not rely on the 60 day extension, particularly if such reliance would take the investigation and discipline outside of the one year statute of limitations set forth in Government Code section 3304, subdivision (d).