Episode 104: Most Popular Questions From HR Seminar

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chambers Executive Vice President and General Counsel. And joining me on the podcast today are two of Cal Chambers employment law experts and my training buddies, Matthew Roberts and Bianca Saad. Welcome, Bianca and Matt, how are you this morning?

Doing well, Erica. Thanks for having us.

Happy Friday, Erica. Good morning.

Good morning, my pleasure. Well, we do have a reason to celebrate to some extent because we just finished our annual Employment Law Update seminar and in non Covid times, we would have spent the month of January traveling throughout the state of California presenting in different locations all the updates, all the new laws and regulations and court cases that came about in 2020. This year that was a little bit different. We still presented and informed all of our customers, attendees, members, but this time it was through our virtual live seminar. And we've been doing quite a bit of live virtual seminars since COVID 19 hit. So little different format, but still, boy did we have a lot of information to cover. And as to be expected, COVID 19 did take center stage, even though we had so much more to talk about. So we thought that we would use this podcast as an opportunity to just share with all of our listeners some of the topics that generated the most interest during our seminars. From questions that were entered, we probably received on average about 200 questions for each event, maybe more. And oftentimes many of the questions were very similar. So we thought we would just have a very conversational discussion today, sharing our thoughts on, you know, what were the nuances of the seminar, what were the particular laws that people were most concerned about and had the most questions about. So I'll just go ahead and kick it off. One of the things that we had talked about was the Family First Coronavirus Response act mandate to provide the leave expired at the end of December, December 31st. However, part of the stimulus plan that Congress passed and then President Trump signed in December allowed employers to continue voluntarily offering the leave banks and continue to claim that tax credit through the end of March. And a lot of questions. I was very it made me smile to see that there are still a number of employers that are going to continue voluntarily offering this leave. But we did have a lot of questions as far as can we slice and dice? Can we offer just the emergency paid sick leave part or can we offer just the emergency family leave part? Because there's still many families whose kids are distance learning. So I thought that was really interesting. I don't know what your thoughts were.

Yeah, that's definitely a common question that I'VE seen, not only in the seminars, but that we've been getting on our helpline as well. And it's one that we actually don't have a direct answer. Or two, unfortunately, we've seen there were a couple of FAQs that were added by the Department of Labor addressing the fact that it is voluntary for employers to provide the leave beyond December 31, 2020 at this point, but no actual discussion as far as kind of giving that green light, at least as far as employers picking and choosing, perhaps only providing the emergency paid sick leave, which we know is that 80 versus the longer amount of time which some employers are more concerned about, which is the Emergency Family Leave act, which can be up to 12 weeks. So we really don't have a direct answer to that. And so it's. The tax credit is for those employers that are following the ffcra. Right. Which is inclusive of both the EPSL and the EFMA.

Yeah. So what we've been telling our seminar attendees and also on the Labor Law helpline is it's, it's really take it or leave it, it's all or nothing. There's no provision that allows you to slice and dice. The intent is if you're going to continue voluntarily offering it, you're voluntarily offering FFCRA in its entirety. Now, of course, things can change. President Biden was just sworn in. There could be other changes. The Department of Labor could issue additional FAQs. So, as we've been saying throughout 2020 and now into 2021, issues surrounding COVID 19 continue to evolve. And it's really important that employers stay up on checking and looking for updates to any guidance that had been issued previously. Another topic that actually raised quite a bit of questions had to do with California's mask requirements. I know, Matt, you received a number of questions yesterday. I received a number of questions when I had called into question whether gaiters, you know, were permissible. I don't know. What were your thoughts about some of the questions that were received over the mask requirements?

Yeah, Erica, this looks like, you know, as the issue has been fairly divisive, I would say, over the course of the pandemic about what to do with masks, you could see that there's still a lot of confusion going on in the workplace about when do we have to wear them, when can we not wear them? Do we have to require employees to wear them? So it was really fascinating to see that, you know, in a nutshell, the California Department of Public Health, our state level public health department, is the one that's really driving the ship on what the rules are with regards to the mask mandates. And then, of course, Cal OSHA is picking it up. And so it's really important for employers to continue to stay up to date on these rules because the mask mandate, like just about everything else in this pandemic, has evolved over time. And so we got into some situations where, like I mentioned in our last employment law update, you know, your. You're going to have to wear your mask indoors. And kind of a general statement, of course, that generated a lot of questions. And what it boils down to is, do I have to wear it in my individual office? What if I'm by myself? And it's important to clarify those rules. So, for example, you know, there's an exception to the mask mandate when you are in your own office or you are in the room by yourself. But what kind of changed over from the initial mask mandate in the summer is that if you're indoors and physically distanced, but you're in a room with somebody else, the mask mandate now requires you to wear it. When you're talking about the gaiters, while the mask mandate doesn't specifically mention it altogether, CDC guidance says double up the gaiters. And what we've seen with Cal OSHA and cdph, the California Department of Public Health, is that they continue just to follow along with what CDC says. So if we're going to use things like gaiters or other kinds of equipment that are outside what a traditional face covering looks like, we need to make sure we stay up to date on what the standards are. So it was really fascinating.

And I think just to kind of put a quick bow on this, yeah, we can discipline employees for not putting their masks on. It's uncomfortable. We hate wearing them. We know that. But it's part of our health and safety rules. And as with any other health and safety rules, employers not only need to implement and enforce it, but they can do so with disciplinary actions.

That's absolutely right. Now, we do know, though, to add another bow to this topic, there are circumstances, however, where employers do want to be mindful of those that may need a reasonable accommodation to the mask requirement. Naturally. And that's going to involve that interactive process that we go through, regardless of whether we're talking about a mask, who needs an accommodation because of a disability. But, yeah, it was interesting to see, as always, when we do these seminars, but it's always interesting to see of all the topics that we talk about and we talked about everything Naturally, from COVID to the expansion of the California Family Rights act, to the minimum wage increase, to paying employees for going through security searches. You know, the Apple case from last year. It's always so fascinating to see what topics actually generate the most interest. And sometimes it's what you least expect, such as, you know, the comment about wearing the mask inside or whether or not gators are okay. Bianca, what did. What did you think?

Yeah, I, you know, like, I echo everything that you and Matt have said so far. I mean, it was really interesting. I was surprised, actually, to see how many questions were gener on the topic of masks, just because that actually isn't something that's new, so to speak. Now, of course, it is part of the COVID 19 regulations, and that was definitely another hot topic as far as these new regulations that went into effect November 30th of last year, it includes a number of requirements for employers. They have to have that written COVID 19 prevention plan. We had a lot of questions about that. Some people were confused as to whether or not that needed to actually be distributed to all of the employees. And actually it does not have to be distributed to all employees. However, it is going to be important that employers make sure they have that written COVID 19 prevention plan that's under the regulations. It includes 11 topics, one of which, of course, is face coverings. That's another place where we see that compliance issue come up.

And so you definitely want to make sure that you've got that in place. The dir, the Department of Industrial Relations website, does have a model plan for employers to use. So that's really going to be the best place to start and kind of fill in the details as they pertain to the workplace. So there's so much more to the regulations I could talk about. I don't know if there's any else that jumped out to either of you as far as, you know, the compliance piece. Right. Because we have not only the plan, we have, you know, notice requirements. We have testing that comes into play with the Cal osha. So there was certainly a lot there.

Yeah. And, you know, we've talked about these Cal OSHA emergency temporary standards related to COVID 19 workplace safety rules. We've talked about it a few times on this podcast, and naturally it did say a number of questions, and that is of no surprise. We actually did anticipate that to be one topic that we needed to devote a large amount of time over just because there's so much in those emergency regulations. And it was a great segue from the mask mandate to talking about these. Because yes, I do. We did see quite a bit of questions related to testing. You know, is it required? Do we have to pay the employee for the testing? Is it sufficient to send an employee to a community based testing center? So there definitely was a lot to it.

Right. I thought that the testing questions came in pretty hot and heavy once we got to that section. And really on the subject matter of returning employees to the work site. Right. And requiring a negative test to return to work. And what we've seen over the course of the evolution of these rules over the last year is that government, government agencies like the CDC and Cal, OSHA and DPH have all been kind of moving away from requiring a negative test to return to work and instead have been focusing on those time based strategies. Right. We're isolating people for a period of time, or if they're a positive test, they've got to stay out for a period of time. But once they meet that time, they're eligible to come back. And there's no requirement for the negative testing. So it's an important thing to note that that's really what the return to work requirements are looking at. More so than say, a negative test to return to work, which may not be the most accurate way to get them back to the work site.

Yes. And picking up on that piece of the return to work provisions, there definitely is the time based standard that are contained in the Cal OSHA regulations as far as how long an employee needs to be away from the workplace. And there's almost two categories. If they actually are a COVID 19 case as defined in the regs, or they've been exposed. And we did have a number of questions regarding those time frames. Very easy to get a little bit confused and overwhelmed when you're listening to someone describing it. We have been directing our attendees, our members, to the Cal OSHA FAQ website. The FAQs were just updated as early as a week ago from the date that we're recording this podcast. And they do have a lot of helpful information. And the other thing too is the actual language of the regulations are also available, which does outline what that timeframe is when you have either someone who has tested positive with COVID or displaying, has a medical diagnosis of having Covid or has simply been exposed. Just kind of round out the show today. Two other new laws that took effect this year that did generate questions, one of which was the California's new payday reporting obligations. And that is something new for employers. It applies to employers with 100 or more employees. Those employers have already had a similar obligation under federal law. It's the EEO one. But we did get a number of questions about that. And we also have just recently received additional FAQs from the Department of Fair Employment and Housing.

Yeah. So one thing that we did see in the terms of questions was clarification. You know, as far as how are you calculating your employees? Do you count? You know, when you're looking at that 100 employee threshold, are you looking at your employees out of state? You are going to count your total employees that you've got on payroll, but you are going to be focusing on for purposes of reporting, you're reporting the data on your California employees. And that's for your employees that are not only located in California, but if you have out of state employees that are reporting to a California located establishment, then those employees need to be included as well.

All good stuff. All good stuff. And then lastly, we do have it's in the realm of harassment prevention, but it is not a change to the current state mandate for employers of five or more to be providing training to their employees, which by the way, that we just had that first training deadline of January 1, 2021. But we do have a new bill. It hasn't given much attention and I think we're going to do a separate podcast just devoted to this issue, A.B. 1963 regarding mandatory reporters. This really is speaking to those employers again with five or more who actually have minors working for them. But Matt, I know you did receive a number of questions regarding that bill.

Yeah, it's fascinating. I mean, we always hear the phrase mandatory reporter kind of in passing and it's not something we've ever had to really worry about in the employment loan context for the most part. But now this bill really, you know, expands upon who a mandatory reporter is in the workplace. And you know, as we're going to tease it here and go into it in a future podcast, the bill really establishes a couple things. One is it sets forth who is now a mandatory reporter in the workplace, which is an HR professional at a workplace who employs minors and supervisor who directly supervises the work of a minor. That's the first aspect of 1963 to know. And then the second would be that there's a training component to it. And so for those of us at workplaces that employ minors who have minors who are performing work at our workplace, stay tuned because AB 1963 has some important criteria for us to know as.

We move into the new year well, thank you both. It certainly, as always is so enjoyable to be able to be doing these seminars with you. We have a really good time and the audience was fantastic and very patient with really the format that we had of being virtual. And one of the things that we certainly missed was seeing the faces of familiar faces that we see on an annual basis this year. We couldn't see them, but they were able to see us. So onwards and upwards and we'll continue to do our seminars in our virtual fashion and keep clicking along as 2021 progresses. Thank you for joining us on the Workplace for those of you who were unable to attend one of our Virtual Live Employment Law Updates seminars, we are offering a Reader's digest of the Update on Thursday, January 28th at 10:00'. Clock. There's spaces still available. You can go to Cal Chamber Store and register for the webinar. It is 90 minutes. We'll be covering the topics that we today on this podcast and more. So if you missed our live, there's still a chance for you to catch us via the Internet through our 90 minute webinar. And as always, thank you again for joining us on this workplace podcast. Please comment, share and subscribe. Subscribe to Cal Chambers podcast by visiting calchamber.com.