Workforce Bulletin

On January 27, 2022, the California Supreme Court, in Lawson v. PPG Architectural Finishes, Inc. (Cal., Jan. 27, 2022) __ P.3d __, 2022 WL 244731, clarified the evidentiary standard for presenting and evaluating retaliation claims under California Labor Code Section 1102.5 (“section 1102.5 whistleblower retaliation claim”).   Lawson involved a workplace retaliation claim brought by a sales representative selling paint products to home improvement stores in Southern California. The plaintiff claimed his employer terminated him because he complained about being instructed to alter the tint of certain paint colors to avoid having to repurchase less popular paints from the retailer later.

In 2003, California lawmakers enacted Labor Code Section 1102.6, setting forth a framework for whistleblower retaliation claims that varied from the burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (“McDonnell Douglas”).  Despite section 1102.6’s enactment, some California courts continued to apply the McDonnell Douglas test to section 1102.5 whistleblower retaliation claims.

On January 26, 2022, the City and County of San Francisco released an updated Health Order No. C19-07y (the “Updated Health Order”), which addresses a number of rules issued in an effort to combat continued spread of COVID-19, including changes in exemptions to the universal indoor mask mandate.  Specifically, effective February 1, 2022, the Updated Health Order renews a previously-suspended masking exemption for vaccinated workplaces, with a few significant changes.

First, under the revised mask exemption, only employees who are “Up to Date” on vaccination (see below for definition) may go unmasked in the workplace, assuming the other conditions for the exemption are met.  Other individuals must wear masks at all times, subject to limited exceptions (e.g., alone, while eating).  Further, consistent with the Cal/OSHA definition of an outbreak, this exemption only applies if there have been no outbreaks (currently defined as three or more COVID-19 cases in an “exposed group” within a 14-day period) in the past 30 days.

On December 13, 2021, the California Department of Public Health (“CDPH”) announced new Guidance for the Use of Face Coverings (“CDPH Guidance”), implementing a mandatory mask mandate for individuals (employees and patrons) in all indoor public settings, irrespective of vaccination status, beginning on December 15, 2021 through at least January 15, 2022.  The CDPH Guidance requires that masks be worn by all individuals over the age of two, unless exempt for disability-related or medical condition-based reasons, and recommends the use of surgical masks or higher-level respirators.

FAQs issued by the CDPH specify that the CDPH Guidance applies to workplaces, and clarify that local public health regulations remain in effect for localities that have previously adopted face covering measures prior to issuance of the CDPH Guidance that apply regardless of vaccination status. That is, the CDPH Guidance only applies to local health jurisdictions that do not have existing indoor masking requirements.  Notably, the San Francisco Department of Public Health (“SFDPH”) has taken the position, in its updated Order and FAQs, that its own masking rules remain in place—including exemptions for “stable cohorts” with 100% vaccination rates, among other criteria.  Marin County and Contra Costa County have taken similar positions regarding the applicability of local health order mask exceptions.  It remains unclear whether local mask exceptions apply given the CDPH Guidance masking rules.

As we previously reported, the Centers for Medicare and Medicaid Services’ (CMS) interim final rule (“the Rule”) requiring full COVID-19 vaccination for staff and others at Medicare- and Medicaid-certified providers and suppliers (i.e., the “vaccine mandate”) has been challenged in the U.S. District Courts for the Eastern District of Missouri (“the Missouri Court”) and the Western District of Louisiana, Monroe Division (“the Louisiana Court”).  As of the date of this writing, both Courts have granted preliminary injunctions placing the Rule on hold.

On November 29, 2021, the Missouri Court granted a preliminary injunction of the Rule, which applies to the coalition of ten states [1] that filed the challenge there. The following day, the Louisiana Court entered a similar injunction, which applies to the remaining forty states.

The Decisions

On September 22, 2021, California Governor Gavin Newsom signed into law a groundbreaking bill that affects warehouse distribution centers (“covered employers”) and their employees.

Effective January 1, 2022, AB 701, requires covered employers to provide nonexempt employees with a written description of each quota that the employee is subject to, including the number of tasks to be performed, or materials to be produced or handled, and any potential adverse employment action that could result from failure to meet the quota. The disclosures must be made at the time of hire, or ...

On September 17, 2021, Los Angeles County Department of Public Health (LACDPH) announced a public health order (“the Order”) requiring proof of COVID-19 vaccination for all on-site employees and visitors at indoor bars, breweries, wineries, distilleries, nightclubs, and lounges throughout the county. Effective Thursday, October 7, 2021 at 11:59 P.M., proof of vaccination will be required to enter these establishments, and will be strongly recommended, although not required, for restaurants with indoor dining. Patrons who do not provide proof of vaccination may still be ...

Counties across California are making a detour on the road to easing COVID-19 restrictions.

Los Angeles County  

On July 16, 2021, Los Angeles County issued an Order of the Health Officer (“the Order”) that requires all persons to wear face masks while in all indoor public settings, venues, gatherings, and businesses (i.e., office workplaces, retail, restaurants, theaters, meetings), with limited exceptions.  In indoor settings where there is close contact with unvaccinated individuals, the Order recommends that people consider wearing a higher level of protection, such as ...

As we previously reported, on June 9, 2021, the California Occupational Safety and Health (“Cal/OSHA”) Standards Board (“the Board”) withdrew its prior proposed revisions to the Division of Occupational Safety and Health’s (Cal/OSHA) COVID-19 Emergency Temporary Standards (“ETS”), effectively returning to the original ETS approved in November 2020.  A week later, however, on June 17, 2021, the Board approved revisions to the ETS (“Revised ETS”) which, among other things, align with current guidance from the California Department of Public Health ...

It has been an active week in California with the release of new statewide face covering guidance, the alignment of Los Angeles County and San Francisco with this guidance, and the withdrawal of the revised Cal/OSHA Prevention Emergency Temporary Standards by the California Division of Occupational Safety and Health Standards Board (the “Board”).

Of most importance, covered employers and workplaces must continue to comply with the more restrictive original Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) that have been in place since November 2020, not

On May 21, 2021, consistent with Governor Newsom's intention to fully reopen California by June 15, the California Department of Public Health (“CDPH”) released “Beyond the Blueprint for Industry and Business Sectors” (“Beyond the Blueprint”), outlining the state’s latest reopening guidelines and restrictions.  Importantly, as reflected in the CDPH’s announcement, most employers (as discussed below) must still follow the more restrictive Cal/OSHA COVID-19 Prevention Emergency Temporary Standards (ETS) (“ETS Standards”) (which we wrote about ...