At this year’s Mid-Year Employment Law Update, attendees were once again privileged to hear from Paul Falcone, Chief Human Resources Officer and author. Paul spoke on Effective Hiring and Motivation, post pandemic. Paul emphasized that effective hiring and motivation starts early on, as early as the interviewing stage. In true Paul fashion, he was able to share great interview questions and techniques that enable the employer to start the engagement process at the early stages. Paul provided information which included the onboarding stage at 30, 60, 90 days and employee development all in the hope of resulting in self-motivation, accountability and gratitude.
After Paul, Chris Olmsted, Shareholder and attorney from Ogletree Deakins provided a legal update, which, not surprisingly, included the most current information regarding the pandemic. Chris talked about the newest regulations from Cal-OSHA and the updates to mask-wearing in the workplace.
While Chris confirmed what most of us already knew (vaccinated employees are no longer required to wear a mask indoors and that unmasked employees must continue to wear a mask when indoors), Chris was also able to address many of the attendees’ questions surrounding this. Questions that included:
What if unvaccinated employees refuse to wear a mask? Can we, should we or are we required to document employees who are vaccinated? Is requesting vaccination documentation or an attestation from an employee a violation of HIPAA?
Chris shared that for those employees who refuse to wear a mask, this could be treated as a disciplinary issue. Chris confirmed that yes, Cal-OSHA regulations require an employee to provide proof of their vaccine if they choose not to “mask-up” at work and sign an attestation. While the employer is required to request proof of vaccine, the employee does not have to provide that information if they choose not to. Those employees who choose not to share their vaccine status will be treated as non-vaccinated employees and must continue to wear a mask at work. Chris also confirmed what has become a big topic of conversation; asking for vaccination status does not violate any HIPAA laws. In addition, the EEOC has confirmed that asking about vaccine status does not violate anything under the Americans with Disabilities Act as long as the questioning stops there.
Chris also addressed the elimination of social distancing as we know it and new guidance on exclusion of exposed workers, COVID-19 pay, workers’ comp presumption and the obligation of employers to provide masks for unvaccinated employees who request them.
While everything COVID-related remains a hot topic, Chris provided a review of the California Family Rights Act that went into effect January of 2021 for all employers in California with five or more employees, encouraging employers to make sure their policies are updated. Wage and hour continues to be a hot topic. Chris shared a recent case, Donohue vs. AMN Services, LLC. In Donohue, a unanimous decision from the California Supreme Court, found AMN Services in violation of California’s meal period requirements due to their rounding practices. Chris reminded the attendees that the Labor Code requires a minimum 30-minute unpaid meal period. Rounding practices open all sorts of issues with this requirement. Chris’ advice: Don’t round meal period punches. Other wage and hour updates included how to pay non-resident employees in California, how to display overtime correctly on employee paystubs and more news on the Dynamex Case and the ABC Test for independent contractors.
Chris wrapped up with some pending legislation that employers should be aware of. Proposed employment laws included AB 1003 – criminal liability for fraudulent and knowingly unlawful conduct in violation of the Labor Code and AB 1041 which would expand the definition of “family member” to include one designated person per 12-month period under the California Family Rights Act.
Benjamin Franklin famously stated “…nothing can be said to be certain, except death and taxes”, we can pretty safely include changing legislation and employment laws, especially in California. We hope to see you at our Annual Employment Law Update in January 2022.
A huge Thank You to our sponsor MediExcel Health Plan. Because Your Health is First.