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Nearly eighteen months later and the largest topic of discussion is still COVID-19 and the pandemic that has uprooted life as we know it. The summer brought promise, with vaccination numbers rising and positivity rates and masks mandates lowering. We started to gather again. We went out to eat, visited family we hadn’t seen in a year and actually saw people’s faces. However, the Delta variant quickly entered the scene, has spread like a California wildfire, and fueled outbreaks worldwide. 

The Centers for Disease Control and Prevention (CDC) states that the variant is as contagious as chickenpox and is strongly recommending that all individuals, regardless of vaccination status, remain masked while indoors. Many local jurisdictions have re-implemented mask mandates and legislation has been passed at both a federal and state level requiring vaccines for certain industries. Several large companies have entered the conversations mandating vaccinations or required testing for workers. 

Companies that have been operating on a remote or hybrid basis may have been in the full swing of bringing employees back to the office. Workers may have already been back in and are now requesting to remain remote based on increased numbers. The specifics of return-to-work plans are unique to the companies and the parts of the country in which they are located, but one thing that is the same for nearly all of us is that we are back to trying to find our footing. We are juggling the current and revised rules and regulations and trying to determine how we accommodate our teams, keep them safe, and follow guidelines, all while maintaining efficiency and profitability. 

Suddenly, our picture of a “return to normal” has shifted, very quickly, again. So how is this impacting our workplace?

Masking:

Depending on where you are located, masks may be recommended or required. Several California counties (representing nearly half the state’s population) have gone back to requiring masks indoors. Employers in these jurisdictions are required to mandate masks regardless of vaccination status. Some employers (outside of these areas) are, in a move of caution, implementing the same requirements. 

Right now it is not only critical to be up to date on local regulation but to know your population. 

· Are your teams fully vaccinated? 

· Are they comfortable being back in the workplace mask free? 

This answer will vary based on each organization and it is important to communicate with your teams. We suggest you take a survey on how your employees feel about masks and their level of comfort with in-office work. A proactive approach can help maintain culture. You are letting your employees know that they are valued, and their concerns are considered when making decisions. 

Vaccinations:

We have seen an increase in big-name employers (Amazon, Facebook, Disney, Walmart) taking the stance that vaccinations will be a requirement of employment. Other industries and sectors are required to be vaccinated or submit to weekly testing (federal workers). Most recently, California announced that effective August 13, 2021, all school teachers, and school workers are required to be vaccinated or submit to weekly testing no later than October 15, 2021. New York City has rolled out the “Key to the NYC Pass” program that will take effect September 13, 2021, and requires patrons provide proof of fully vaccinated status before being allowed entry to specified facilities (indoor restaurants, entertainment venues and gyms).  

Where does this leave other employers? 

The Equal Employment Opportunity Commission (EEOC) has stated that it is within the employer’s right to mandate vaccination. However, before we roll out a vaccination policy, there are serious things to consider…

· Why are you making this a requirement of employment?

o Is it based on a health and safety concern in the workplace?

o Are you a high-risk industry?

o Are you located in a high-transmission area?

o Are your employees requesting a vaccination policy?

· Do you have a unionized workforce?

o What is in your collective bargaining agreements (CBAs)?

· How will you address accommodations?

o Accommodations for medical disabilities under the Americans with Disabilities Act (ADA) or sincerely held religious beliefs or practices under Title VII of the Civil Rights Act will have to be considered.

· What will your employee population do? 

o Are they vaccinated? 

o Are they planning to be vaccinated? 

o If not, will you terminate? 

o How will you address the loss of employment during a challenging time to find and retain employees?

· How will you track and record this information?

o Will you use a self-attestation form or require a copy of the vaccine card?

o Where will this information be securely and confidentially stored?

Sitting down with leadership and tackling these questions will help you form a plan that is best suited to your organization. There is no one size fits all solution.

Return to work plan:

Again, this will vary based on your industry and the type of organization you are operating. Some employers do not have the option of remote work, making it all the more important to address masking and vaccination head on. Others have the capability to consider a continuation of remote work. 

Here is where some of us may need to dig deep and reevaluate our thoughts on working from home. Prior to the pandemic most employers did not have remote work options or policies. We felt that certain jobs could only be completed in the office. And while that may be true in certain instances, we have all been forced to acknowledge that this is not a hard and fast rule. Research shows that working hours have increased (exponentially in many cases) due to working at home (and being essentially locked in). 

I get that we are all eager to return to “live and in person” but it may not be the best option for everyone. Talk to your teams, evaluate your business, and make the best decision for your organization. Culture may be just as heavily impacted by being in the office as it seems to be by not being in the office.

Regardless of your stance, the Delta variant likely provided a shake-up to your plans, and it is okay to ease back to a plan of action. We are all figuring this out as we go. There is no rush to declare the future because it may change again. It is important that we are adaptive while being honest. It is okay to let employees know that things are a work in progress. We can all appreciate that these are challenging times and none of us have all the answers. 

Build a target roadmap and get employee buy-in. Have open dialogue about target dates based on the information we currently have but with the caveat that it may change. 

One thing that cannot be up for discussion are our policies if we create them. This is not to say that they cannot change, but more that if we require or mandate masks or vaccinations these must be applied consistently (pending any required accommodations). This means, if we require something across the board, we cannot make exceptions for so and so in department B, because that is just “who they are”, or require that some employees, but not all, adhere to a required policy or procedure. 

If tracking updates, regulations, mandates and procedures seems like it has become a full-time job, that is because it has. Know that you have available support at TPPS. We are here to assist and guide you through these challenging times.

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I think that it is safe to say that most managers dread the annual reminder email, “Performance evaluations are due.” But why are these so abhorred? For many people, evaluations are daunting, a task that has to be marked off the list that is time consuming and (if not done with intention) holds little to no weight. Where is their ROI? Managers spend time going through an exercise to be met with one of the following: (1) an employee that does not care; (2) an employee that is defensive, or everyone’s favorite; (3) an employee that is only expecting more money. 

Many employees dread this time just as much as the manager conducting the evaluation. 

“Why do I have to sit through this?” 

“This isn’t constructive or positive, and it focuses on what I lack with no solution.” 

”Am I getting more money?”

So, with everyone unhappy and going into this process with trepidation, why are we still forcing these? 

That is the exact question that we as leaders need to answer. 

Let’s find the “why” behind evaluations and create a philosophy that fits our organization and drives us toward our strategic goals and objectives. That is the game plan after all.  We are all trying to determine how we get from point A to point B with the right people, in the right place, for the right price, and advance our mission. Without an evaluation of what we are doing and how we are doing it, we will not have a clear understanding of how we can improve as a whole. 

It’s challenging to measure performance on a path that is not defined. How do we get there if we do not know where we are going? This is why a performance evaluation philosophy cannot be “canned” or mass produced because we are all heading in unique directions. What works for me, may not work for you. In simpler terms, we have to start at the beginning. We must know as an organization, what our mission, vision, and values are, and use these as the foundation to build our strategic plans and then build our performance evaluations around how we accomplish these goals. Evaluations have the ability to be either helpful (growth and goal setting) or harmful (evaluations that are performed to “check a box”), so they should be thoughtful, focused, true to the work being assessed, and strategic. We can create a paradigm shift within our culture and develop a philosophy and new approach to restructure our evaluations so that they align with, and contribute to, our organizational goals.

When developing an organization’s performance evaluation philosophy and structure, there are specific items that can be identified to assist in building a program that best fits the objectives of the organization:

· Establish what will be measured. Determine if these evaluations will be used to measure essential job performance, tracking against key objectives and goals, impact on organization’s culture or other objectives identified that are related to the job description and the organization’s mission.

· Identify how often performance will be evaluated. There has been a shift in recent years for more frequent and consistent reviews, often referred to as CFRs (Conversation, Feedback and Recognition). The thought is that more frequent assessment and feedback provides the opportunity for a more focused target and ideal result while establishing a consistent level of accountability. Again, this decision will need to be made with the organization’s culture in mind. 

· Create strategic alignment. Performance evaluations should always be tied to essential job functions, but should also incorporate the organization’s mission, vision and values and become a strategic component for accomplishing your “why.” 

· Focus on Enhancement. Performance evaluations are a pain point in many organizations. They can be time consuming and, if they lack direction and are not used to identify objectives and key results, they can run the risk of losing impact and become an exercise in futility. We all want employees that perform well in their position, but we should also strive to develop employees that enhance our culture.

· Provide Transparency. Evaluations can be a time of transparency and can be used to bring employees into the fold. Ensuring that employees understand what is being evaluated, why it is being tracked the way it is, and how their specific role contributes to the overall success of the organization, creates buy in. This can also be a time to discuss career paths and compensation structures. 

A thoughtful and developed evaluation process can also serve the following organizational functions:

· Guide HR decisions. Evaluations should assist in making determinations for promotions, terminations, performance improvement plans, revisions to job descriptions, new positions that may need to be created, and forecast future employment needs. With that said, we also should not wait for annual reviews to take action to correct behavior, talk to employees about performance (good and bad), implement performance improvement plans, etc. 

· Reward and motivate employees. This one can be challenging as we do not believe that each evaluation has to be accompanied by a pay increase. That said, we believe compensation should be based on performance, making evaluations an integral part of compensation decisions. Evaluations can also provide intrinsic rewards by way of positive reinforcement and recognition. 

· Promote personal development. As individuals we need feedback so that we can improve. Accurate and timely evaluations can facilitate learning and eagerness for growth and improvement. 

· Identify training needs. A well-designed evaluation can identify gaps where an individual may require additional training. It should also aid in establishing the abilities and skills needed for each job and setting the performance levels and qualifications may tie into job description updates. 

· Create career paths. Employees want to know where they are headed and what upward mobility is available. Intentional evaluations assist in the development of career paths. This can also aid in creating compensation structures or salary ranges if the organization does not already have something in place. 

Now it is time to roll up our sleeves and get strategic. This will look different for each organization, but there are a few launchpad items that can assist us in implementing change.

· Decouple evaluation and compensation. Employees have the expectation that a performance evaluation equals more money in the bank, because oftentimes we place them so close together. We have unintentionally blurred the lines. Change it. There is no rule that states when evaluations have to occur. If salaries are reviewed in Q4 for increases in Q1, move evaluations to Q2. Provide feedback in the second quarter so that when the fourth quarter comes around, we have some tangible evidence and data to analyze, and we make business and cash-flow based decisions that are not under the scrutiny of expectation.

· Increase the cadence. This will be determined by the size of your organization, your capacity, and your culture. If you are a large operation and annual evaluations make the most sense, test informal check ins that occur bi-annually. If you are smaller and have the bandwidth, hold quarterly evaluations. Again, there is nothing governing when these have to take place. If there is an issue with performance standards, do not wait until an evaluation to address it. A performance evaluation should never be the first time an employee is hearing improvement is needed.

· Get interactive. Evaluations can be used to learn more about employee needs and ‘asks’ from the organization. Our goal is not only to hire great people but to retain them. Turnover is costly and losing great people can dramatically impact our bottom line. Use evaluations as a time to check the pulse of your employee population, ask questions on how the company can improve. Making this interactive can provide us with valuable information and targets on how we keep our innovators. 

· Review your system. How are you evaluating? Is there a classification procedure ranging from outstanding to poor on key identified items? Ranking, rating or graphic rating scales, paired comparison, forced choice… the list goes on.  Knowing what will be completed honestly and effectively is key. Just because something was done in the past doesn’t make it right for the future, it is okay to switch it up and change. 

· Focus on your mission. Askhow are our employees positively contributing to our mission? Your mission should be the foundation of what you do each day, and this includes performance evaluations. Making this the focal point to build your evaluation on provides the solid foundation needed to create meaningful interactions and evaluations.

Reaching a destination without a map is a more challenging task than arriving at a desired location with clear directions. It doesn’t mean we can’t arrive; it just may take us longer and potentially lead us down roads better left untraveled. Let’s shake things up and revamp our process so that evaluations become a tool, rather than a task, and a marker on our roadmap to success. 

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In March of 2021, the U.S. House of Representatives passed the Protecting the Right to Organize Act of 2021 (PRO Act). The PRO Act is said to represent the most dramatic rewrite of federal labor laws in decades and poses significant changes and consequences for both non-union and union employees. The Bill is currently in the Senate for consideration and if passed, will strengthen the ability of unions to form and collectively bargain. 

The PRO Act brings its fair share of political controversy and, it appears to many, that organized labor has arrived and is unpacking its bags for a long-term stay. 

During his presidential campaign, Biden promised to be, “the strongest labor president you have ever had” and that, “you can be sure you’ll be hearing that word, ‘union’, plenty of times when I’m in the White House.”

Marty Walsh, former union president and Boston Mayor, was sworn in as the Secretary of Labor in March of 2021 and is the first former union official to hold office in nearly 50 years.

In April of 2021, President Biden formed a task force dedicated to strengthening workers’ ability to organize. 

Biden has also nominated two former union lawyers to the National Labor Relations Board (NLRB) and effective August 28, 2021, the Democrats will have the majority in the NLRB with a strong union hold. The NLRB is an independent federal agency responsible for enforcing the provisions of the National Labor Relations Act (NLRA). The NLRA guarantees the right of most private sector employees to organize, engage in concerted efforts to improve their wages and working conditions, make determinations on whether to have unions as their bargaining representatives, engage in collective bargaining, and/or refrain from any of these activities. 

So, the PRO Act is on the table, and we see a strong push for union footing. But what does this mean for employers?

The PRO Act encompasses more than 50 significant changes to current law and aims to overhaul the NLRA for the first time in 70 years. Here are some of the most notable changes:

· Effectively overturn state “right to work laws.” Currently there are 27 states that have legislation in place that prohibits employers and unions from entering into “fair share” agreements, in which employees are required to pay “fair share fees” to unions that represent their interests. In right to work states, employees cannot be required to pay union dues. Under the PRO Act, employers and unions could enter agreements and employees could be required to pay unions dues in unionized workplaces even if they are not members of the union. 

· Codify the ABC Test. For us Californian’s this is nothing new, however this would be implemented country wide. Under the ABC Test, a worker is presumed to be an employee unless the employer can show that all three of the outlined conditions are satisfied. This means that many more workers would potentially become employees. 

· Limit the ability of employers to contest union elections. The PRO Act would allow coercive tactics for unions that have long been held as unlawful.

· Implement steep fines for employer retaliation against organization. The PRO Act has a provision that employers would face fees ranging from $50,000.00-$100,000.00 for firing an employee that is trying to organize a workplace. 

· Employers would be prohibited from holding mandatory “captive audience” meetings. Listing these as “meetings of fear”, the PRO Act would eliminate the ability of employers to hold meetings that employees are required to attend in order to dissuade union action. 

· Increase the time in which union-employer contracts come together. The PRO Act provides a timeline for the collective bargaining process and, in the event that an agreement cannot be reached, requires timely mediation and a tripartite arbitration panel. 

· Require reclassification of employees. The PRO Act restricts the definition of “supervisor” and prevents employers from treating many frontline leaders as members of their management team. This means that many more employees would be subject to NLRA coverage and potential union representation. It also limits these individuals’ rights to exercise Section 8 free speech rights under the NLRA and communicate about unionization.

· Require changes in business structure. Under the PRO Act the NLRA would amend the joint-employer definition as one who “codetermines or shares control over the employee’s essential terms and conditions of employment.” This has the potential to impact staffing agencies with contingent workers, as well as franchise brands among others. 

· Provide employees with the right to use employer’s electronic systems for non-business reasons. The PRO Act would permit employees to use employer’s communication systems and technology to organize or engage in other protected concerted activity. 

· Eliminates mandatory arbitration agreements. Employers that have arbitration agreements signed upon hire to prevent an employee’s right to participate in a collective or class action lawsuit will need to make changes. The PRO Act prevents employers from entering these agreements with employees. 

· Union organizers would have access to employee contact information. The PRO Act will require employers to provide a voter list to the labor organization seeking to represent employees. This would include employees home addresses, work locations, shifts, job classification and, if available, cell phone and personal email addresses. 

Remember that this is the “highlight reel” of the PRO Act provisions and the potential changes to how we are currently operating could be drastic. With the Democrats solidifying their majority in the NLRB an aggressive pro-union agenda is expected that may impact both union and non-union employers. So buckle your seat belts, we are in for more change. 

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California Supreme Court Rules that Meal & Rest Period Premiums are Required to be Paid at Regular Rate of Pay

On July 15, 2021, in Ferra v. Loews Hollywood Hotel, LLC., the California Supreme Court has issued a ruling that may largely impact California employers. The Court held that employers are required to calculate premium pay (a.k.a. meal penalties) for missed/late meal and rest periods based on the employee’s “regular rate of pay” and that the term “regular rate of compensation” under Labor Code section 226.7 (applicable to premium payments) has the same meaning as “regular rate of pay” under section 510 (applicable to overtime).

California requires that when an employee works overtime (more than eight hours in a day or 40 hours in a week) that the rate is calculated based on the employee’s “regular rate of pay.” 

What exactly does “regular rate of pay” entail?

Regular rate of pay includes hourly compensation as well as any additional non-discretionary payments (e.g. bonus or commission), shift differentials and/or any variable rates of pay. It is worth noting that this includes non-discretionary payments and bonuses that are issued on any basis -outside of the normal pay period. This means that these amounts are required to be included (even retroactively) into the total compensation used for calculating regular rate at the time the overtime or premium pay is earned/required. 

The ruling, after examining the history of the terms “pay” and “compensation” under California and federal law, determined that the terms are used interchangeably and will apply regular rate of pay/compensation to premium pay for meal and rest breaks premiums/penalties. The decision will apply both prospectively and retroactively. 

What are the Meal & Rest Requirements?

Meal Period:

  • Non-exempt employees working more than five (5) hours in a day are entitled to an unpaid, off-duty, thirty (30) minute meal break. This is required to be taken no later than the end of the fifth hour.

*Employees working no more than six (6) hours may waive this meal period, and the employer should obtain a written waiver.

  • Non-exempt employees working more than ten (10) hours in a day must be provided with an additional thirty (30) minute meal period.

* Employees may waive the second meal period if:

-They are working less than twelve (12) hours; and

-They did not waive the first meal period.

Rest Period:

  • Non-exempt employees are entitled to a rest period of at least ten (10) minutes for every four (4) hours or substantial fraction thereof, that the employee will work. These rest breaks must be counted as time worked and are required to be paid. 

What does this mean?

Anytime an employee that is entitled to a meal or rest period is unable to take that break, a premium payment is owed. Employees are entitled to one hour of premium pay (a.k.a. penalty) for missed/late meal and rest break. This payment is now required to be calculated and paid at the employee’s regular rate of pay/compensation. 

What now?

  • TPPS strongly recommends all employers review and update payroll policies and procedures related to the premium payment for missed meal and rest periods. This includes updating payroll system calculations – MOST PAYROLL SYSTEMS DO NOT AUTOMATICALLY CALCULATE THE REGULAR RATE. 
  • Additionally, employers should run an audit of all meal and rest periods and their payment calculation each pay period to ensure that these are calculated and paid correctly. 

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Los Angeles City employers, there is a new leave in town called COVID-19 Vaccine Paid Leave.  If you are an employer with 26 or more employees, this may have limited impact because there are only new provisions for this leave if all other required leaves have been exhausted. The COVID-19 Vaccine Paid Sick Leave Order (the Order) was signed by Mayor Eric Garcetti on June 24, 2021 and applies retroactively to January 1, 2021. The Order will remain in effect until September 30, 2021 and requires that all private employers within the city of Los Angeles to provide COVID-19 Vaccine Leave (CVL).

What is covered?

Employers are required to provide paid sick leave for absences by employees related to the COVID-19 vaccine. For purposes of this leave, an employee is defined as a person that performs work within the City of Los Angeles and has been employed by the same employer for 60 days or longer. 

Employees are entitled to leave to receive, or recover from, COVID-19 vaccination injections. This includes time to travel to and from injections.

How much time is available?

The amount of CVL an employee is entitled to is dependent on two (2) criteria:

1. Does the employer employ 25 or fewer employees; and

2. Is the employee full-time or part-time?

Employers of 25 or fewer employees:

· Full-time employee is entitled to–

o up to four (4) hours per injection (is inclusive of travel time); and

o up to eight (8) hours for vaccination recovery.

· Part-time employee is entitled to-

o Leave prorated based on the average number of hours worked in the 60 days preceding the injection or recovery. This amount is up to four (4) hours for injections and up to eight (8) hours for recovery.

Employers with 26 or more employees:

Under Labor Code section 248.2 and Mayor Garcetti’s Supplemental Paid Sick Leave (SPSL) Order, these employers are already required to provide paid leave for vaccine purposes. If these leave options have been exhausted, then employers are required to provide additional time as outlined above for full-time and part-time employees.

What is the Rate of Pay?

Non-exempt employees must be compensated at the highest of the following rates:

1. The employee’s normal rate of pay for the workweek in which the leave was taken.

2. The City of Los Angeles’ hourly minimum wage of $15 per hour; or

3. The employee’s average hourly pay for the preceding 60 days (excluding overtime).

Exempt employees’ wages should be calculated in the same manner other forms of leave are calculated. The Order caps pay at $511/day ($255.5 for each 4-hour period), or $1,022 in the aggregate, unless the federal government established a higher pay amount. 

What is the Retroactive Provision?

CVL is retroactive to January 1, 2021, meaning employees that took leave for reasons that would qualify under CVL and were paid less than what the Order has established, may be entitled to additional compensation. If an employee makes a request, either verbally or in writing, the employer is required to adjust payments by the next full pay period. If employees were forced to use vacation, sick or other paid benefit or unpaid time-off, then upon the employee’s request, this time us required to be reclassified with the necessary restoration adjustments made. 

Any reclassification, restoration, or adjustment of other leaves previously taken, as well as the remaining balance under CVL are required to be reflected in the employee’s paystub on or before the next full pay period following the employee’s request. 

Can I Offset?

If employers already provided supplemental benefits for leave taken on or after January 1, 2021, that were (1) payable for the same reasons as CVL; and (2) compensated the employee in an amount equal to or greater than the required amount under CVL, then the hours provided may offset the required new Order. 

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 Minimum Wage changes in the Golden State effective July 1, 2021… 

CA Minimum Wage
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“Please make sure you take all your belongings with you when you exit this ride…”  

Is this rollercoaster finally returning to the station? Yesterday, June 17, 2021, California Occupational Safety and Health Administration’s (Cal/OSHA) Standards Board met (again) and voted (again) on the Emergency Temporary Standards (ETS) that are governing COVID-19 regulation for our workplaces. The seven (7) member panel listened to two (2) hours of public comment prior to making their decision where they voted in favor of the most recent revised version of the Emergency Temporary Standards. Rather than these revisions making their way to the Office of Administrative Law for a 10-day review period, Governor Gavin Newsom penned an Executive Order within the hour making these new guidelines effective immediately. 

If you have found it hard to keep up with the constant transformations, you have come to the right place, because TPPS has been keeping our fingers on the pulse of COVID-19 regulations in the workplace. Below is a review of where we have landed and what life in the workplace can look like effective June 17th.

Face Coverings. This has been a huge topic of discussion as the state ‘reopened’ on June 15thand permitted fully vaccinated individuals to shed their masks in nearly all settings. But until the 17th,employers were still required to mandate masks for all employees in the workplace. 

  • Fully vaccinated employees: As of the signing of the Executive Order on June 17th, fully vaccinated employees can be mask free (regardless of the entire population’s vaccination status) so long as it is permitted by the state and the employer (masks are still required for public transit).
  • Unvaccinated employees: Are required to remain masked indoors or in vehicles but can be without masks in outdoor settings. 
  • Face coverings: Employers are required to provide face coverings for unvaccinated employees that request them. This includes N95 respirators. There is currently no clarification on the potentially required training and fit testing of these N95 respirators, nor how this will impact the supply chain. Stay tuned. 

Vaccination Status. The revised ETS requires that employers gather and maintain information regarding employee vaccination but does not specify how such documentation must be obtained and stored. It does, however, provide that employers can gather this information by self-attestation. It is important to remember that this information, once received, must be stored securely and confidentially and any forms, be it self-attestation or copies of vaccination cards, should be kept separate and apart from general personnel files (within a medical file). 

Physical Distancing. The revised ETS has removed all physical distancing guidelines to better align with Governor Newsom’s reopening guidelines. 

“Exposed Group” replaces “Exposed Workplace”. This revision makes a clear delineation from previous guidance and now provides that when there is a COVID-19 exposure in the workplace, only those in the exposed group are required to be excluded. Employees that are fully vaccinated with no symptoms, or those that have recovered from COVID-19 within 90 days and do not develop symptoms, are not required to be excluded. Previously this extended to the entire workplace. 

Testing. Testing for workplace outbreaks will now apply only to those in the exposed group.

· Minor outbreaks– are defined as three (3) or more confirmed COVID-19 cases that live in separate households within a 14-day period. The following are exempt from testing in the event of a minor outbreak:

  • Fully vaccinated employees that are symptom free;
  • Individuals that have fully recovered from COVID-19 within the last 90 days and have returned to work with no development of symptoms; and
  • Individuals that had COVID-19 within the past 90 days and were asymptomatic.

· Major Outbreaks-are defined  as 20 or more confirmed COVID-19 cases in an exposed workplace within a 30-day period. All individuals in the exposed group are required to be tested, regardless of vaccination status. 

Now what? Organizations need to make the decision on what they will do. It is absolutely within your rights to maintain a face mask policy for all employees. If you will be permitting fully vaccinated employees to go mask free, prepare a self-attestation for employees to sign and make sure that this information is stored correctly and safeguarded. If you have questions, reach out to TPPS for guidance. We are here to support you.

It is expected that continued communication will be coming from Cal/OSHA and frequently asked questions (FAQs) have been updated on the site with more on their way. Remember that TPPS is here to decipher this information for you and guide you through these business decisions.  Until this ride has come to a complete stop, please remain seated.

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Restrictions across the country are lifting and easing and there is a myriad of regulation that varies from state to state, city to city, and/or county to county.

Currently as many as 13 states have legislation either in play or pending related COVID-19 vaccines and what can, or cannot, be required. We have leaves of absence and paid sick time for COVID-19 related reasons that range from voluntary to required, and again can change as quickly as the city or county line. 

If this seems like a lot to manage, that is because it is and if the pandemic has taught us anything it is that change is our one true constant. So, as employers how do we prepare to return to the workplace safely while maintaining our teams and our culture? With studies providing information on employees wanting to remain fully remote, or at the very least a hybrid schedule, how do we accommodate and make the best business decision? What are the top items we should be reviewing, considering, managing, and planning for as we make this shift?

· Realize this will not be easy. Life has been hard for the past 15 months and the return to the office will not be any different. It is perfectly okay for us to sit down and admit this is going to be a challenge. We discuss the pain points and ‘burning’ items for our specific group, and then… we strategically plan.

· Identify the pain points. These may very well look different from organization to organization, location to location, or even department to department. 

  • Remote/Hybrid and in the workplace: Many of us were of the mindset that certain jobs could not be done remotely, and then COVID happened. We ate a piece of humble pie as we adapted to make things work. Others of us quickly learned that we were right in our thinking, and that certain jobs are required to be conducted in the physical work location.  
  • Loss of connectivity: We may be challenged with a workforce that wants to remain fully remote, while as operators we are struggling with the loss of connection rather than productivity. 
  • Wage & Hour Issues: While working from home, many of us struggled to stop working. The ‘there is nothing on TV so I guess I can knock out these emails or this pending project’ way of life may be leading to issues with wage and hour compliance. We are not there to physically monitor and oversee working time or meal and rest breaks. For our hourly and non-exempt population, this can create significant issues. 
  • Safety Concerns: Even though the reopening is upon us, we have all been living a very different life for more than a year and not everyone is roaring to mingle. Concerns about safety in the workplace are a real issue.

· Lean on your Resources. There are rules and regulations that were passed at warp speed and continue to change. Remember Cal/OSHA’s Emergency Temporary Standards and the revised rules that were declined, passed, and then withdrawn. There is a lot to navigate here, and prior to making any final decisions, these plans should be reviewed and discussed with TPPS or other trusted advisors. 

· Strategize as a Team. Have the tough conversations and create a plan together. Getting buy-in and opinion from your teams and employees will make this transition smoother. This is not to say that we concede to things that do not serve the business needs but listening to our employees here can be a critical turning point in our planning. When we cannot accommodate, communicate. Let employees know that they are heard and that we are striving to make the best business decisions and provide reasoning for those decisions if necessary. 

Remember that these are unprecedented times and that you are not alone. TPPS is here to assist and to build this roadmap with you. 

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a wooden sign with the words retirement on it

California Senate Bill 1234 (SB-1234) was signed into law way back in 2016 and requires California employers, that do not sponsor an employee-retirement plan, participate in the state administered retirement program, CalSavers.  

The requirement has had a staggered rollout with the ‘pilot’ phase being launched in 2018 and the phase-in period that began in 2020. By June 30, 2021, the mandate will require employers with 50 or more employees, with one or more of these employees being over the age of 18, to comply.

Mandate Rollout:    

  • September 30, 2020– Employers with 100+ employees are required to have enrolled OR offer a qualified plan
  • June 30, 2021– Employers with 50-99 employees are required to have enrolled OR offer a qualified plan
  • June 30, 2022– Employers with 5-49 employees are required to have enrolled OR offer a qualified plan

Employers that fail to offer a qualified retirement plan or enroll in CalSavers may be fined by the California Franchise Tax Board.

What does this mean?

Employers with 50 or more employees are required to:

A. Offer a qualified retirement plan; or

B. Enroll in CalSavers.

What if I already have a plan in place?

· Employers that offer a qualified retirement plan may have received notification from CalSavers requesting enrollment. If this is the case:

  • Log on to the CalSavers site.
  • Have your Federal Employer Identification or Tax Identification Number, business address and/or phone number available.
  • Register for the exemption.

· If you did not receive notification from CalSavers and want to ensure that the exemption is in place, call CalSavers to confirm the qualified plan is listed and the exemption has been applied.

The registration for your company exemption only needs to be completed once unless you eliminate your plan. If you eliminate your qualified retirement plan, you will then be required to replace it or enroll with CalSavers.

What if I do not have a plan? Am I required to enroll in CalSavers?

  • No. You can opt to offer your own qualified plan and TPPS recommends that you explore these options as private qualified retirement plans are often more favorable for your employees.
  • However, if you do not plan to offer a qualified retirement plan, you are required to enroll in CalSavers. Log on to the website and register your company using the information provided as well as your Federal Employer Identification or Tax Identification Number, business address and/or phone number.

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a news logo with the words coronavirus update

Buckle up because the changes keep coming our way. In a special meeting held Wednesday, June 9, 2021, California’s Occupational Safety and Health Association’s (Cal/OSHA) Standards Board voted to withdraw the revisions to the Emergency Temporary Standards (ETS) that had been submitted on June 3, 2021

So, let’s travel back and look at how we got here, what this means, and where we are going…

· November 30, 2020-Cal/OSHA issues Emergency Temporary Standards (ETS) effective immediately that bring with them a laundry list of rules, regulations and required notices.

· May 7, 2021-Cal/OSHA submits significant revisions to the ETS for May 20, 2021 vote by the Standards Board.

· May 19, 2021- in a last-minute request, Cal/OSHA asks the Standards Board to hold on the vote and push this to the June 3, 2021 scheduled meeting.

· May 20, 2021- The Standards Board listens to three (3) hours of discussion and public comment on the proposed revised ETS.

· June 3, 2021- The Standards Board in a 4-3 vote is  in opposition of the revised ETS and then minutes later returns with a unanimous passing of the revised ETS. The revised ETS is sent to the Office of Administrative Law for a 10-day review period and set to take effect June 14, 2021, just one day prior to the state’s ‘reopening’. 

· June 9, 2021- In a special meeting held to consider the latest guidance from the Centers for Disease Control (CDC) and California’s Department of Public Health (CDPH), the Standards Board listened to over two hours of public comment and again did a complete 180 and voted (unanimously) to withdraw the revised ETS.

If all of the back and forth had you feeling like you were watching a tennis match, we are right there with you. 

So, what now?

Cal/OSHA will review new mask guidance and bring forward any new recommendations or revisions to the Standards Board. The Board will consider these revisions, possibly as early as the next meeting scheduled for June 17, 2021. Until then, the original emergency temporary standards are in play. This means it is business as usual (or at least ‘usual’ as provided from November 30, 2020 and on).

Emergency Temporary Standards (a review):

· Applies to all employers within the state of California that have one of more employees and have in person contact with the following exemptions:

  • Workplaces with only one employee that does not have contact with other people.
  • Employees who are working from home; or
  • Employees who are covered by the Aerosol Transmissible Disease regulation.

· Requires a written COVID-19 Prevention Program (CPP) for all employers that are covered under the ETS.

· Previous definitions remain in play (not the proposed revised definitions from the now rescinded updated ETS):

  • Exposed workplace verses exposed group as provided in the proposed, now rescinded, revised ETS. This means COVID-19 exposure potentially impacts all individuals in the workplace.
  • COVID-19 exposure, employees are to be excluded from the workplace. 
  • No carve out for fully vaccinated or recovered individuals as provided by the revised ETS. 

But wait, there is more…

In the name of change, the California Department of Public Health (CDPH) also met on Wednesday, June 9th and provided updated guidelines for the general public that will be in effect from June 9, 2021 through June 14, 2021with the potential to be extended. 

Guidance:

· Fully vaccinated persons are no longer required to wear face coverings outdoors with the exception of being  at specific crowded events like concerts, music festivals, etc.

· Non-vaccinated persons are required to wear face coverings outdoors when physical distancing cannot be maintained.

· Indoors facemasks are required regardless of vaccination status.

· Fully vaccinated persons are permitted to go mask free when:

  • Visiting with other fully vaccinated persons (indoor and outdoor).
  • Visiting with non-vaccinated people from a single household who are at low-risk for severe COVID-19 disease in indoor and outdoor settings.

· The specific settings are exempt from wearing face coverings when:

  • Persons are in a car alone.
  • Persons are working alone in an office with the door closed.
  • Persons obtaining a medical procedure that prevents mask wearing.
  • Persons that wear respiratory protection; or
  • Persons who are specifically exempted from wearing face coverings by other CDPH guidance.

What now?

If you are asking what this means for you… status quo. The reason we want to wait, take a breath, and let things play out is because (a) no one likes knee jerk reactions, and (b) the name of this game has been constant change from the start. 

Until the 15th everyone coming into our workplaces should be, according to CDPH, wearing face coverings. Employees are to remain masked (regardless of vaccination status), training is still required, and the CPP is still active pending further notice from Cal/OSHA.

So, sit back, throw the popcorn in the microwave, and watch but do not get too comfortable because there is more change ahead of us. We are not out of the weeds as it relates to regulation and updates from our governing bodies. Good news, TPPS is watching this for you and will continue to push out updates and be here to support your needs.

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