Join us for an Employment Law Update webinar that will provide practical advice on how to comply with new requirements that California employers need to know in 2022. We will discuss, among other topics: COVID-19 Health and Safety Issues Equity in the Workplace Compensation and Wage and Hour Leave, Benefits and Accommodations

1. 2022 Employment Law Update
Private & Non-Profit Employers
January 11, 2022

2. 2
Presenters
David M. Middleton
Associate
(619) 330-1737
dmiddleton@meyersnave.com
Angelica M. Pe Benito
Associate
(510) 808-2000
apebenito@meyersnave.com
Arlene R. Yang
Principal
(619) 330-1729
ayang@meyersnave.com

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• Please note the information in this
presentation is subject to change
• This is an informative presentation
and not intended as legal advice
• Please consult with an attorney
for assistance with a particular issue
or problem

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1. COVID-19 Health and Safety
2. Equity in the Workplace
3. Compensation and Wage & Hour
4. Leaves, Benefits, and Accommodation
5. Questions
Agenda

5. COVID-19 Health
and Safety

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• November 2020 – adopted first COVID-19
Prevention Emergency Temporary Standards (ETS)
• Revised ETS goes into effect on January 14, 2022
Cal/OSHA Updates Emergency Temporary Standards
!

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Key Changes to the ETS
New Rule:
Employer is required to make COVID-19 testing available
at no cost, during paid time, to all employees who had a
close contact with a COVID-19 case
COVID-19 Testing for All Regardless of Vaccination Status

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Updated Rule:
Employers must notify employees, employee
representatives and any other workers at a worksite
of possible COVID-19 exposures within one business day
Key Changes to the ETS
Notification of Exposure in the Workplace

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Face Coverings
Key Changes to the ETS
New Rule:
Employees who are exempted from wearing a face
covering due to a medical or mental health condition,
or disability and cannot wear a non-restrictive alternative
must physically distance at least six feet from others and
either be fully vaccinated or tested at least weekly for
COVID-19

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Return to Work Criteria
Amended Rule: On January 6, 2022, Cal/OSHA updated its ETS to incorporate
California Department of Public Health guidance on isolation and quarantine:
Key Changes to the ETS
• Five (5) days to ten (10) isolation
• Test after 5 days
• Face covering requirement
• Workplace setting rules for asymptomatic employees
• Local public health officers and local health jurisdictions

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• Review COVID-19 prevention plans and ensure that they are
in compliance with the emergency standards as revised
Key Changes to the ETS
Employer
Takeaways:
Public
Employers:
• The Cal/OSHA ETS applies to both private and public employers
https://www.dir.ca.gov/dosh/coronavirus/COVID19FAQs.html#iso

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12/13/2021– California Department of Public Health (CDPH) guidance temporarily
required masks to be worn in all indoor public settings, irrespective of vaccine status
until 1/15/2022
1/5/2022 - Due to a recent increase in cases, CDPH extended order to 2/15/2022.
New Temporary Indoor Mask Mandate
Employer
Takeaways:
Public
Employers:
• Modify policies to require masks to be
worn in the workplace, unless one of the
limited exemptions apply
• Local jurisdictions may have more
protective rules (ex. L.A.)
• These requirements apply to both public
and private employers

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Federal vaccine and vaccine or test mandates are being litigated:
1. Private employers with 100+ employees
OSHA - Fully vaccinated or test for COVID-19 weekly by 2/9/2022 (S. Ct. review)
Cal/OSHA – to issue its own regulations
2. Healthcare workers
Requires vaccinations for most healthcare workers/facilities that receive
Medicare/Medicaid reimbursements (S. Ct review)
3. Federal contractors and subcontractors
Exec. Order mandates vaccination (on hold - 6th Cir.)
4. Federal employees:
Fully vaccinated by 11/22/2021 (in litigation)
Status of Federal Vaccine Mandates

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• Courts will decide fate of vaccine
mandates
• Consider developing policies to
gathering vaccine information from
employees
• Consult with legal counsel
Vaccine or Test Mandate for 100+
Employer
Takeaways:
Public
Employers:
• In California, public employers with 100 or more employees
will likely be covered by the vaccine-or-testing mandate

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Recommendation:
Based on current science and public health agencies’ trends, revise “fully vaccinated”
to mean “received booster if booster eligible”
Employer Vaccine Policies
Many employers require employees to be “fully vaccinated” to enter the workspace

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• Americans with Disabilities Act of 1990 (15+ employees)
• Title VII of the Civil Rights Act of 1974 (15+ employees)
• California Fair Employment and Housing Act (5+ employees)
• Reasonable Accommodation
 Disability
 Sincerely Held Religious Belief
• Do not retaliate against anyone for engaging
in protected activity, such as requesting a
reasonable accommodation
Exemptions to the Vaccine Mandates

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Exemptions to Vaccine Mandates
Employer
Takeaways:
Public
Employers:
• Written policies for handling requests for
reasonable accommodations
• Train personnel who receive accommodations requests
• Applies to public and private employers
• Consult your Memorandum of Understanding (bargaining)

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Managers should look for signs of counterfeiting:
 Absence of key information, including
manufacturer, lot number, date of vaccination,
and location of vaccination clinic or site
 Vaccination dates that are inconsistent with
CDC guidelines
 Misspellings
Counterfeit Vaccine Cards and Falsifying Vaccination Status
 Cards printed on flimsy or poorly cut paper
 Illegible government seals, or the lack thereof
 Cards that appear to be entirely printed with no handwritten information
 Uniformity of handwriting for a multi-dose vaccine, suggesting the card may
have been completed on a single date

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• Review policies regarding workplace safety and
employee conduct
• Refer to policies for questions about the legitimacy or
accuracy of an employee’s vaccination record or status
• Reinforce consequences for falsifying health records,
up to and including termination
• Warn employees that falsifying vaccine records is a
federal crime punishable by fines and/or imprisonment
Counterfeit Vaccine Cards and Falsifying Vaccination Status
Employer
Takeaways:

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• Ensure polices and procedures comply with Cal/OSHA standards
• Review site-specific workplace safety hazards to avoid citations
for violations
SB 606: Strengthens Cal/OSHA’s Enforcement Authority
Employer
Takeaways:
Public
Employers:
• Cal/OSHA has jurisdiction over almost every workplace in California,
including all state and local public agencies
• Communicate with Cal/OSHA about the timeline for producing
documents or information requested during an inspection
• Be mindful of any requests received from Cal/OSHA during the
course of an inspection and avoid citations
• Cooperate with Cal/OSHA to minimize the likeliness that the
agency will seek injunctive relief

21. Equity in
the Workplace

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Serial plaintiffs allege websites are not accessible
 Blind or low-sighted – website coding design not
compatible with screen readers
 Deaf or hard of hearing – no closed captioning in
videos (and for public entities – live or pre-recorded
public meetings)
ADA Litigation Related to Website Compliance
• Follow generally recognized industry standards for website
accessibility, such as the Web Content Accessibility
Guidelines (Version 2.1)
Employer
Takeaways:
Public
Employers:
• Business and public entities must comply with the ADA
• Public entities – ADA Title II; Businesses – ADA Title III

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SB 331 - “Silenced No More Act” amends two laws that govern settlement
and non-disparagement agreements in the employment context
SB 331: “Silenced No More Act”
1) Settlement agreements cannot prevent disclosure
of facts surrounding a claim of workplace
discrimination or harassment based on any
category protected under the FEHA, or a claim of
retaliation for reporting or opposing such an act
2) Employers cannot require employees to sign either
a release or a non-disparagement agreement in
exchange for a raise or bonus or as a condition of
employment or continued employment

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SB 331: “Silenced No More Act”
Employer
Takeaways:
• Update forms and think carefully about resolving potential or
ongoing litigation
• Agreements with an employee for receipt of a raise, bonus,
new or continued employment, or separation from
employment:
 Remove non-disparagement provisions that restricts the
employee’s ability to disclose information about
unlawful acts in the workplace
• Separation agreement:
 Inform the employee of their right to consult an attorney
 Give the employee at least five business days to do so
• SB 331 applies to settlement agreements entered into by
public and private employers

25. Compensation and
Wage & Hour

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The fate of AB-51
• In 2021, AB-51 banned mandatory arbitration
• U.S. Chamber of Commerce v. Bonta (9th Cir.)
• Currently stayed
Can California’s Private Attorneys General Act Claims Be Arbitrated?
• Does the Federal Arbitration Act permit arbitration agreements to prevent
employees from raising representative claims, including under PAGA?
• 12/15/2021, U.S. Supreme Ct. will hear Viking River Cruises, Inc. v. Moriana
Arbitration Agreements – Expect Changes in 2022

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Don’t Delay to Pay Arbitration Fees
• Since 2020, employer waives right to compel arbitration for failure to pay
arbitration fee within 30 days after due, with monetary and other possible sanctions
(SB 707)
• SB 762, now requires that the arbitrator:
 issue invoices for fees and costs to all parties
on same day and same means, and
 make the payment due upon receipt, unless
arbitration agreement expressly provides
otherwise
(Civ. Code § 16557.1; Code Civ. Proc. §§ 1281.97, 1281.98.)
Arbitration Agreements – Expect Changes in 2022

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Arbitration Agreements – Expect Changes in 2022
Employer
Takeaways:
Public
Employers:
• Include arbitration agreements in handbooks
• Update arbitration agreements
• Plan arbitration fees within 30 days of issuance of the invoice
• Be ready for changes to the law in 2022
• Arbitration agreements generally are not used by
public employers
 Arbitration agreements can be a valuable tool for employers
 Reduce cost, risk, and baseless claims

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Minimum Wage Increase/Increase in Salary for Exempt Employees
• Effective January 1, 2022
• California minimum wage increases
 25 employees or less - $14 per hour
 26 or more employees - $15 per hour
• Also affects minimum salary requirements for exempt
employees to qualify for the white collar exemptions
 25 employees or less equals $58,240 per year
 26 employees or more equals $62,400 per year
• Localities may impose their own minimum wages
 San Jose – now $16.20 per hour for all employees

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• Update minimum wage payments and postings to reflect
state and local increases
• Ensure that exempt employees, including part-time
exempt employees, are being paid according to minimum
salary requirements
Minimum Wage Increase
Employer
Takeaways:
Public
Employers:
• Minimum wage requirements
are applicable to public and
private employers

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• Intentional theft of wages, including gratuities, in an amount greater
than $950 from any one employee, or $2,350 in the aggregate from
two or more employees, by an employer in any consecutive 12-month
period punishable as grand theft.
AB 1003: Expansion of Criminal Penalties for Wage Theft
Employer
Takeaways:
Public
Employers:
• AB 1003 applies to both
public and private employers
• Managers can be held criminally liable for theft of wages
• Take steps to ensure wage and hour compliance
• Train managers and employees
• Provide written policies on meal and rest breaks, overtime,
and off-the-clock work
• Any waivers must be in writing

32. Leaves, Benefits & Accommodation

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SB 95: Expiration of COVID-19 Supplemental Paid Sick Leave
• Consult with legal counsel to determine
whether there are any other local laws
governing COVID-19 paid sick leave
• Employees are entitled to take time off
to receive the COVID-19 vaccination or
get tested for COVID-19 if employer’s
policies require them to do so
• When in effect, SB 95 applied to both
public and private employers

34. Questions