Latest Cal/OSHA Rules

“I’m so confused about COVID precautions as my employees are returning to the office. What’s the latest?”

Your HR Survival Tip

By now, everyone is used to COVID-related information changing frequently. In fact, we are so used to the constant changes that we believe a lot of companies aren’t paying attention anymore. As vaccinations increase and positive cases go down, it’s understandable. However, Cal/OSHA is still trying to make the workplace safe and has issued new regulations that begin June 15th. Cal/OSHA is the California division of OSHA Occupational Safety and Health Administration.

We have provided a simplified list but it may pay to review all the regulations.

  • Masks, part 1 — Fully vaccinated people do not need to wear a mask anywhere… except when they are working indoors with unvaccinated coworkers. Unless everyone has been vaccinated, you must still adhere to wearing masks at work and maintaining social distancing.

  • Masks, part 2 — Companies are required to stock and provide N95 masks for employees who have not been vaccinated (at no cost to the employee). This new regulation requires you to offer only N95 masks at work. However, the use of the N95 masks is voluntary for employees who have not been vaccinated. This is the same mask that was in such demand by hospital personnel last year.

  • Social Distancing — This will no longer be required after July 31st, but you must continue social distancing until then.

  • Vaccination Proof — If you are dropping any COVID safety rules because your employees are “fully vaccinated,” you’ll be required to have proof from employees of vaccinations. There are still discussions going on as to what documentation is allowed or required but, for now, a copy of their vaccination card should work. Keep these in a confidential file as you would any other medical document.

  • Exposures and Symptoms — Fully vaccinated employees no longer need to be tested or quarantined even if they are exposed to COVID. Employees who have not been vaccinated must be provided company-paid testing and, possibly, paid time off to quarantine.

  • Notice to Employees — You are required to verbally inform certain employees about these new rules. If the employee has a limited ability to read published notices, tell them what the notice says to ensure understanding.

Compared to what we’ve gone through over the past 1.5 years, the new regs aren’t too bad. It is generally understood Cal/OSHA’s new regulations don’t exactly line up with CDC advice. However, if you have employees in California, Cal/OSHA rules.

Hybrid Work Stats

“I can’t decide what I want to do with my employees now that they can work in the office again. Any ideas?”

Your HR Survival Tip

This has been a huge topic of conversation among companies of all sizes. Employees have now gotten used to working remotely and are being more resistant than ever to returning to the office. Let’s look at a few statistics:

  • 90% of organizations will be changing to a hybrid model combining on-site and remote work.

  • 10% will continue fully on-site and only 3% will continue fully remote, even though they were fully on-site before COVID.

  • 68% of organizations still don’t have a detailed plan laid out for the hybrid model.

  • 36% are either discussing broad concepts or haven’t even started thinking about it.

  • 51% of employees significantly improved their personal productivity when working remotely.

  • 35% of customers felt there was a significant improvement in customer service.

  • 50% of leaders have ideas on how managers should lead remote workers differently and have been training those managers.

If you feel like you’re falling behind on getting a plan in place, you’re not. While everyone is thinking about it, not everyone is ready with a plan. However, the time is now. Start with assessing your processes and determine which changes need to be implemented to make those processes work well in a hybrid company. You also need to give serious thought to communication within your organization because it will need to be more deliberate than it was when everyone was on-site.

One of the other changes you’ll need to make is teaching your leads and managers how to manage remotely, measure productivity, and develop their teams. Communication by phone, chat, or email is much harder because the body language is missing and those visuals represent a great deal of the message itself. Even if you didn’t provide manager training previously, we believe it is a wise investment for the future.

Rescinding Offer Letters

“I gave a candidate an offer letter but they haven’t yet accepted and I want to move on to another candidate. How do I make the switch?”

Your HR Survival Tip

A written offer letter is often desirable because it can protect your company by ensuring your offer is not misunderstood. In some situations, such as when you want to run a background check, California requires a written offer letter to be provided first. In that case, you add a contingency clause.

An offer letter may be viewed as a contract between your company and the candidate. This is why you want to be comfortable with the offer and confident this candidate is the right person for the job. Many candidates will provide notice to a current employer once they have the offer in hand and, after that, it’s very hard for the candidate to reverse the resignation and still have a good working relationship with that employer.

Once your offer has been sent to the candidate, there are only a couple of ways to easily rescind the offer with no real risk:

  • Your offer should have a response deadline. We prefer three calendar days because that’s plenty of time if the candidate is truly interested in the job. They had time to learn about your company throughout the interview process prior to receiving the offer. If the candidate is unsure or waiting for an offer from the other company that interviewed them, you want to be able to move on as quickly as possible to your next candidate. Or you can offer an extension if the deadline passes and the candidate has provided reasonable justification for needing more time. We have clients whose offer letters state the candidate should not give notice or assume the offer is final until they get confirmation from the company.

  • One of the contingencies in the offer didn’t turn out as you hoped. If you run background checks, remember California is very particular about how and what information on that report can be used to rescind your offer. Consider using other or additional types of contingencies, such as reference checks, employment confirmation (per what they listed on the application), or confirmation of degrees or certifications.

If your reason for rescinding the offer is based on you having second thoughts about the candidate, the timing could make a big difference. As mentioned, once that candidate informs their current employer, you now may be the cause for the candidate having no job at all. The candidate could claim you broke the “contract.” Doing your due diligence in the interview process should help avoid second thoughts after the offer has been sent.

There will be times when you’re excited about the candidate when you make the offer but the candidate’s behavior then starts giving you second thoughts. Behaviors that worry us a bit include a lack of excitement from the candidate about the offer, failure to communicate what and why they need to think about it, or their method and timing of communications to you. Often, but not always, you may have missed these clues during the interviewing process. Adding more questions during the interview about what the candidate wants, whether they are considering other offers at this time, what issues might delay their acceptance of any offer, their timing for starting a new job, etc. may help avoid any awkwardness once the offer is made.

Overall, it’s best to avoid putting yourself in a situation where rescinding an offer is necessary or desirable. Right now candidates are calling the shots so don’t be surprised if a candidate accepts your offer, then informs you they are accepting a different offer. We can’t do anything about it when the candidate changes their mind but you could be held responsible for any negative results when you rescind an offer. Take just a little more time upfront to be confident about your choice when making an offer.

Masks On or Off

“I know many places are no longer requiring masks but I’m confused about how to make it safe for employees.”

Your HR Survival Tip

COVID’s evolution has kept all of us confused for nearly 1.5 years. The latest information from the CDC (Centers for Disease Control) is great news for those who have been vaccinated. However, masks and distancing are still strongly recommended for those refusing or unable to get vaccinated. Also, California is still enforcing the mask mandate until June 15th so don’t drop those masks too early.

While some companies are no longer requiring masks at work, you need to decide for yourself whether or not this is in your favor. California still has several laws and regulations in place making it the company’s responsibility to pay for quarantines and report cases to workers’ comp carriers. If you no longer require masks, will your risk and costs increase? Those vaccinated will be protected but what about the unvaccinated?

Some companies are choosing to follow the mask mandate in general. However, if an employee chooses to share their vaccination proof with the company, they will be allowed to work without a mask. This means some vaccinated employees will continue to wear masks if they don’t want to provide proof of vaccination, but that’s their choice. This makes sense but will people feel targeted? And who gets assigned to be the mask enforcer?

Technically, it’s fairly easy to segregate those without vaccinations from those who have been vaccinated. Legally, will it appear the unvaccinated are being discriminated against? You can offer the unvaccinated the opportunity to continue working remotely so they aren’t at risk. However, what if they don’t want to, or what if you actually need them in the office?

When we look at our options, there is no clear answer. We have heard of ultimatums to be vaccinated or fired. We have heard of companies trying to keep everyone remote. We have heard of companies setting a return to the office deadline. Companies are trying to decide what works best for them and their employees and that’s what you need to do. Start by reviewing what the company needs, then look at what the employees would like… do they match up, or are decisions needed?

Catching Up

“I know there are things I need to be doing so I’m in compliance but I haven’t had time yet. What are the priorities?”

Your HR Survival Tip

If you haven’t yet become compliant with California’s deadlines and new laws, you aren’t alone but need to make time or potentially face fines and penalties. The immediate list is short so this isn’t too painful but it is critical.

Sexual Harassment Prevention Training
If you have more than 5 employees anywhere, you were required to provide sexual harassment prevention training to all employees before the end of 2020. It is paid time so be sure to plan the training to avoid overtime. Supervisory employees have a mandated 2-hour training and non-supervisory employees have a mandated 1-hour training. Your employees must then be trained again every 2 years from their previous training date. New employees must be trained within 6 months of hire. We offer online, on-demand training at CAhumanresources.com but the state also offers training compliant with this law. Failure to provide this training will be most noticeable (and most financially painful) when or if you have a harassment complaint before completing the training.

Protected Family Leave
California changed the California Family Rights Act (CFRA) to be effective for companies of 5 or more employees, reduced from the previous 50 or more employees. This was a huge change and we’ve noticed many smaller companies are failing to understand the law and their role. This law went into effect on 1/1/2021 and provides protected time off of up to 12 weeks per 12-month period. It can be used for a variety of reasons, including time off for the employee’s health or baby bonding. Even if you’ve had an employee off for a few weeks this year, the protected 12-week period doesn’t begin until you have given the employee the proper paperwork. Failure to provide this leave can harm you in two ways: (1) a lawsuit or claim because you denied the leave to an employee who was legally entitled to it or (2) failure to provide timely paperwork could result in a much longer leave for that employee than was necessary.

There are other compliance items but they usually don’t affect the majority of your employees like these do. The training is easy because you can immediately schedule and complete it. The protected leaves require more knowledge, paperwork, and tracking so your immediate work is preparing for a leave and knowing how to handle it. If desired, we can provide leave management for your company or train someone in your company.

Not a Hostile Work Environment

“I have an employee who has filed a complaint with me about a hostile work environment. When I asked her to describe the situation, she told me her supervisor yelled at her about something she had done wrong. How do I handle this?”

Your HR Survival Tip

We have found the phrase “hostile work environment” to be very overused and misunderstood. Regardless of what you might think actually happened, you must take the complaint seriously and learn more. If you are current with your harassment prevention training, you already know a legal claim of a hostile work environment must include harassing behavior against a protected class of employee(s) that happens frequently over a period of time or as a severe single incident.

CA human resourcesAllowing your supervisory staff to yell at their direct reports for any reason is a bad management style that should not be condoned. As the business owner, it is up to you to ensure your supervisors understand how to get results without frustration and raised voices. Yelling stops people from listening so there is no advantage to it… and it can lead to a claim you must take time to investigate.

The first thing when getting a claim like this is to understand what the yelling was about. If you discover the supervisor was yelling over a work mistake, it’s possible the situation is just an example of poor management style and not actually illegal. If you discover the supervisor only yells at the women (or another protected class), you may have a bigger problem. If it’s a one-time situation and was about the employee’s error with their work, someone needs to be capable of explaining why this isn’t a true claim of hostile work environment. However, you also need to work with the supervisor to let them know they need to work on being a better manager or face disciplinary action.

Yelling at work does happen more frequently than it should. However, just like you hold the supervisor accountable for getting the right results from their employees, the company is accountable for ensuring the supervisors have the tools they need to get those results. The tools are learned methods of coaching employees, training employees, and providing feedback. Without these tools, you’ll find supervisors have one or two conversations with a problem employee, then start to get frustrated with the employee and end up shouting.

While yelling at an employee may not currently be against the law or a hostile work environment, it reflects on your company because you allow it. The employees care about the work environment or they wouldn’t be making these claims. You should care just as much. Your time and money is better spent training supervisors rather than investigating claims.

When a Writeup is Needed

“I usually just have talks with my employees about any problems. When is it necessary to write them up instead?”

Your HR Survival Tip

When you have problems with employees, you need to do something to correct their behavior or actions. A conversation is the first step and, if you’re lucky, it’s the only step needed. Problem fixed! However, that’s not always the case.

If the problem continues, you now have to decide what you’ll do next. Having another conversation seems to be popular but may not be effective if you’re just repeating what you said in the first conversation. If the employee didn’t get it then, why would you think they would act differently upon hearing it a second time? However, you can help lock in the information by asking the employee to write a summary of the problem and the agreed upon solution. If they didn’t really understand, they won’t be able to write a summary or will need to ask questions. Either way, it helps get the message delivered.

CA Human ResourcesWe are not a fan of progressive discipline policies because you’re legally forced to follow the steps, regardless of the problem. Discretionary discipline policies allow you to choose the appropriate disciplinary action to fit the issue. They have similarities though. The first step is inevitability the conversation informing the employee of a problem.

Writeups aren’t legally required… but they are very highly desirable and recommended for two reasons. One is to lower the company’s legal risk if the problem should eventually lead to a termination. The other reason may keep you from having to go there. A writeup provides a second way to get your words absorbed by the employee. People learn and understand by different methods. Some are good listeners (so they should understand what you’re saying), others are visual (where a writeup actually is easier for them to comprehend), and then there are those who actually learn by by doing (so you demonstrate or watch while they do the work). These are just examples so you get the idea.

If you have a problem that isn’t being corrected with the first conversation, then it’s your job as the supervisor to figure out other ways to help the employee understand. So you’ve tried the conversation, tried having the employee summarize the conversations, and still have a problem. Now is the time to put it more officially on paper. Include the problem, why it’s a problem, your desired solution, and a doable deadline. You’ll also want to have the employee sign and date this writeup.

It’s strange, but employees generally take something in writing much more seriously than when it’s verbal. This writeup is your effort to make them understand YOU are serious about correcting this problem. If you are feeling this may be your final attempt, end the writeup with “Failure to correct this issue may lead to further disciplinary action, including termination.” If a termination does result, you’ll find it much easier (and safer) to do when the employee has been warned of the possibility.

Vaccination and Mask Update

“I’d like to make sure all my employees are vaccinated and even continue wearing masks to protect everyone but what can and can’t I do?”

Your HR Survival Tip

Even as more people are getting vaccinated, we still struggle with how to handle the COVID-related questions and policies in the workplace.

Masks are still strongly recommended by the CDC (Centers for Disease Control) even after vaccination, unless you are surrounded only by others who have been vaccinated. Continuing to wear a mask protects everyone around you and your company can have a policy requiring masks at work, just like before the vaccinations began. If you have a policy in place but find some employees are not following it, you’ll want to find out why they are not following the policy, ensure they understand it, reinforce your reasons for it, and let them know disciplinary action may follow if they do not adhere to it. Employees won’t take the policy seriously if you don’t.

Conversations about whether or not someone is vaccinated and whether they plan to be are common. In the workplace, you want to be careful about those questions. While employees may chat amongst themselves about it, make it clear employees do not have to respond to other employees who may be casually curious.

Those same questions take on a different tone when they come from anyone in management and shouldn’t be asked casually. Decide why you care about employees being vaccinated. A simple yes or no question about whether an employee is vaccinated if fine but make sure the employee understands you do not want any information about medical conditions.

  • If you have decided you need proof of vaccination, ask only for a copy of their vaccination card and keep it in their medical file. This is confidential information and shouldn’t be shared with others.
  • You cannot treat employees who are and are not vaccinated differently without providing valid justifications for those differences.
  • Do not ask any questions about why the employee has not been vaccinated, how a vaccination affected them, or anything that can’t be answered with a simple yes or no. This could lead to you receiving personal medical information that you do not want or need and could put the company at risk.

Keep in mind that carelessly asking about reasons or vaccinations can potentially open your company up to legal obligations under ADA (Americans with Disabilities Act) or even GINA (Genetic Information Nondiscrimination Act). This is a time when you really want to avoid having too much information about your employees. If you need to know about vaccinations, create a policy and a process for collecting and tracking the information so no one is asking the wrong thing.

Hit After Hit

Is it a surprise to anyone that our payroll taxes will be increasing to cover the huge unemployment hit from COVID? Or that California has a new bill going through the legislature that could be very costly to employers?

Job Killer Bill

A bill, AB 1192, has been deemed by the California Chamber of Commerce as a job killer. This bill would require employers to provide annual reporting of wage and hour data and employee benefits for all employees in the

U.S. The plan is to then share that information on the web so employers will be publicly shamed for not providing more pay or benefits… even when they are not legally required to do so. The expectation is this would result in frivolous litigation and settlement demands.

Unemployment Fund Depletion

HR JungleWhen California runs out of money in their unemployment fund, they borrow from the feds. California’s unemployment fund is nearly $22 billion in debt to the federal government based on what was paid out through early April, 2021. The expectation is that our unemployment fund will go further in the hole by the end of this year… to a negative $40 billion. Even during the Great Recession, the debt was only $10 billion and it took nearly a decade to pay off that loan with increased payroll taxes.

There are only 20 states that went into unemployment debt because many used some of the CARES Act funding to lower their debt. However, California didn’t do that and now we lead the pack with the highest debt. The runner up is New York with $10.2 billion in debt… less than half of our debt. The other 18 states are mostly under $1 billion in debt.

What does this mean to your company? Based on current laws regarding our two consecutive years of fund insolvency, tax increases will begin in 2023 and will continue until the fund is again solvent. Normally, when there is a plus amount in the unemployment fund, you pay 0.6% unemployment tax for the first $7000 each employee earns. But each year we continue to be in the hole, we’ll see that tax increase by 0.3%. After 18 years, we will max out on those tax increases but the difference we’d be paying would be $420 (the max) per $7000 versus the $42 we paid before the fund went into the hole.

Higher payroll taxes often affect a company’s willingness to hire. However, you know we’ll bite the bullet if it becomes necessary to hire to fully recover from the devastation experienced over the past year. The federal government is unlikely to provide assistance or forgiveness for the amount owed but people are reviewing the language of the American Rescue Act to determine if there might be some help there. We can only hope!

Time to Start Saving

“I’m trying to decide whether it’s best to add a 401(k) plan to my benefits or use CalSavers. Is there a benefit to either?”

Your HR Survival Tip

CalSavers is the retirement plan California has created that allows employers to offer a way for employees to save toward retirement. Actually, the state is trying to force people to save but this is one of those occasions where their plan is a good idea overall. There are benefits from both a 401(k) plan and the new CalSavers plan so which you choose will come down to which benefits you prefer.

HR JungleIf your company does not have a 401(k) or similar retirement plan in place, you will be required to register for CalSavers. The deadlines for registering are staggered: 9/30/2020 for companies with 100+ employees; 6/30/2021 for those with 50+ employees; and 6/30/2022 for companies with 5+ employees. If you have a retirement plan in place, you do not need to register but you might try just to confirm the state knows you have a plan.

CalSavers — VS —  401(k)-Type Plans

  • It is free to register your company and participate. VS There is an annual administrative fee.
  • There are no costs involved when employees participate. VS There is a per participant cost.
  • Employee participation is automatic unless the employee opts out. VS Employees must meet eligibility requirements before being allowed to participate.
  • Employees may opt out but, if they participate, the contribution is 5% to start. VS Participating employees can choose to contribute any percentage or dollar amount, within limits.
  • You upload employees when you first start the program and then add new hires within 30 days so they can participate. VS You may set an eligibility period, such as one year, before employees are eligible to participate.
  • CalSavers contacts each employee to discuss the program with them. VS Usually the plan has a financial planner who can discuss options with employees.
  • You are not allowed to add money to an employee’s account or offer a company match. VS You can add bonuses or a match to your employee’s account.
  • Employees are responsible for ensuring they do not contribute more than legally allowed each year (or it will be returned and taxed). VS Your TPA (third party administrator) helps monitor the account balances and make needed adjustments.
  • The state chooses the terms of the IRAs and which investments are offered. VS You have fiduciary responsibility for the funds/stocks available in the plan but you can offer a wide selection.
  • Employees maintain control of their account when they terminate so they can choose to keep it or add their next employer. VS Employees may keep their money in your plan upon termination or choose to roll it out to another plan or IRA.

Any retirement plan is a benefit to your employees. As the employer, you just need to determine whether CalSavers or an independent plan best serves your purposes. Often the high earners want a plan but they also really like a company match, which is only possible with an independent plan. However, if you don’t see spending the money on an independent plan as a good use of your benefit dollars, CalSavers allows you to offer a plan at no cost to you.