COVID 19, Imminent Hazard to Employees, Closure, and Notice

On September 17, 2020, California Governor Gavin Newsom signed legislation (AB 685) authorizing the California Division of Occupational Safety and Health (division) to mandate the closure of, and prohibiting entry to, a workplace where the exposure to COVID-19 is an imminent hazard to employees. Closure is limited to immediate area where the imminent hazard exists. The division will provide an employer with a closure notice that it must conspicuously post in the workplace and only the division can remove it when the workplace is safe with the required safeguards in place. However, workplace entry is permitted, so long as with the division’s knowledge and permission, to eliminate the dangerous conditions. This COVID-19 imminent hazard provision is repealed on January 1, 2023.

On August 28, 2020, the U.S. Department of the Treasury issued guidance to address President Trump’s August 8^th memo authorizing the deferral of the withholding, deposit, and payment of Social Security payroll tax obligations for affected taxpayers. Employers are not required to defer the payment of Social Security taxes, the deferral is optional, but any deferred taxes must be repaid. The guidance and the memo do not address whether employees can elect to defer (or decline the deferral of) this federal payroll tax. 

On August 12, 2020, the U.S. Department of Labor (DOL) released guidance for the Lost Wages Assistance (LWA) program that is administered by states through a grant agreement with FEMA. FEMA does not pay benefits directly to individuals, instead the states distribute the funds through their UI system as a supplemental payment.

On September 4, 2020, California Governor Gavin Newsom signed legislation (AB 2257) expanding the exemptions to the state’s ABC test, which is used to determine whether an individual is an employee or an independent contractor (worker classification) under the California Labor Code, Unemployment Insurance code, and Industrial Welfare Commission wage orders.

On July 24, 2020, the California Department of Fair Employment and Housing released an updated guidance for employers about COVID-19 addressing:

On July 31, 2020, the California Department of Public Health updated its COVID-19 Employer Playbook For a Safe Reopening to require employers to contact the local health department in any jurisdiction where an employee lives when there is a COVID-19 workplace outbreak. An outbreak is three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.

On August 4, 2020, the California Department of Fair Employment and Housing releasedsexual harassment and abusive conduct prevention training for supervisory employees. This training meets the legal requirement that employers with five or more employees provide at least two hours of sexual harassment prevention training and education to all supervisory employees in California by January 1, 2021.

Employers of all sizes have extensive obligations when it comes to sponsoring employee health and welfare benefit plans. Having compliant written plan documents is essential and has become even more important as plan audit and enforcement activities have increased in recent years. It isn’t a matter of “if” a plan is audited, but “when.”