On April 21, 2022, the California Occupational Safety and Health Standards Board (OSHSB) approved an updated third readoption of the Emergency Temporary Standards for COVID-19 Prevention (ETS). This iteration of the ETS will take effect on May 6, 2022, and will expire on December 31, 2022. Learn more about the most significant updates to the ETS below, and view a redlined draft copy of the updated ETS language here.

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Removal of Definition for “Fully Vaccinated” Employees

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Previous iterations of the ETS distinguished between fully vaccinated and not fully vaccinated employees for the purposes of testing, face covering, and other such requirements. Significantly, the readopted ETS removes the definition for “fully vaccinated” employees, which carries significant implications for face covering, respirator, and testing requirements, amongst others.

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Note: For high-risk settings and other specified circumstances, the CDPH continues to distinguish between individuals based on vaccination status in determining close contact, exclusion, return-to-work, and other requirements. Learn more below and at this link.

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Face Coverings/Respirators

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Employers must provide all employees, regardless of vaccination status, with respirators upon request, and provide these employees with effective training and instruction related to these respirators.

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Employees are required to wear face coverings when required by an order from the CDPH. Currently, employees are not required to wear face coverings in the workplace except when they are subject to certain return to work requirements or in certain outbreak settings. Employees who are not fully vaccinated are no longer required to wear face coverings while indoors or in vehicles unless they are subject to a CDPH order.

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Testing

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Employers must make testing available at no cost during paid time to all employees with COVID-19 symptoms, regardless of vaccination status, except for “returned cases.” (Learn more about “returned cases” below.)

New Definition: “Returned Cases”

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Although the readopted ETS eliminates the distinction between fully vaccinated and not fully vaccinated employees, it adds a new category for employees who are “returned cases.” A “returned case” is a COVID-19 case who returned to work pursuant to the applicable return to work requirements and did not develop any COVID-19 symptoms after returning. A person may only be considered a “returned case” for 90 days after the initial onset of COVID-19 symptoms, or for, individuals who never developed symptoms, for 90 days after the first positive test.

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Employers are not required to make COVID-19 testing available to employees considered “returned cases.” Further, asymptomatic “returned cases” are not required to test for COVID-19 after they are part of an “exposed group” in the workplace.

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Close Contacts, Exclusion, and Return to Work

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The new ETS defers to the California Department of Public Health (CDPH) to set the standards for responding to close contacts, and for exclusion and return to work requirements. View these standards on the CDPH’s COVID-19 website, linked here.

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Self-Administered COVID-19 Tests

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Under most circumstances, employees must take a COVID-19 test to satisfy the ETS’s return to work criteria. The new ETS allows these tests to be self-administered and self-read if another means of independent verification can be provided, such as a time-stamped photograph of the test results.

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Elimination of “Light Test” for Face Coverings

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Under the most recent iteration of the ETS, face coverings were required to be constructed of fabrics that “do not let light pass through when held up to a light source.” The updated ETS removes this requirement.

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Elimination of Cleaning and Disinfection Requirements

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The prior version of the ETS required employers to implement certain cleaning and disinfection procedures, such as cleaning areas and equipment used by a COVID-19 case during their high risk exposure period. The updated ETS eliminates these cleaning and disinfection requirements.

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Outbreaks and Major Outbreaks

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For the purposes of determining when an “outbreak” or “major outbreak” has occurred, the term “infectious period” has replaced “high-risk exposure period.” This update is not substantive; it simply aligns ETS language with CDPH language.

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Resources for California Employers

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In the coming weeks, employers should update their COVID-19 Prevention Plans to come into compliance with Cal/OSHA’s updated ETS, and continue monitoring the CDPH website for changes to exclusion, return to work, face covering, and other requirements. As always, employers should stay abreast of mandates from local jurisdictions, which may be more restrictive.

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Access a redlined draft version of the updated ETS here.

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Access the CDPH’s Guidance on Isolation and Quarantine for COVID-19 here.

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If you have questions regarding this article, please contact Patrick Maloney or Lisa Von Eschen of the Maloney Firm’s Employment Law Department.

The Maloney Firm is pleased to congratulate Gregory Smith, Elizabeth Schaus, and Carl Mueller on their selection to the 2022 Southern California Rising Stars list. Each year, no more than 2.5 percent of the lawyers across California are selected by the research team at Super Lawyers to receive this honor.

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Carl has now been named to the Southern California Rising Stars list for three years in a row. Elizabeth, who joined the firm this year, has been recognized on the list for the past four years. Greg has been named to the Rising Stars list for seven years in a row, and has earned the further distinction of being selected to the Up-and-Coming 100 list for the past three years.

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Firm attorneys Patrick Maloney and Lisa Von Eschen have also consistently been recognized by Southern California Super Lawyers.

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Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.

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The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers, visit SuperLawyers.com.

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On Thursday, March 3, President Biden signed into law HR 4445, the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” which prohibits mandatory arbitration for sexual assault and harassment claims in the workplace.

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The bill amends the Federal Arbitration Act (FAA) to allow employees and representatives of class or collective actions to choose to void pre-dispute arbitration agreements and joint-action waivers for all sexual harassment and sexual assault claims. While the law prohibits employees and other parties from being compelled to arbitrate their sexual harassment and sexual assault claims, these parties may still choose to arbitrate such claims after the dispute has arisen.

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Although the law applies retroactively to agreements that predate the enactment of the law, disputes and claims that arose or accrued before the enactment of HR 4445 are not covered by its provisions. Instead, HR 4445 applies “with respect to any dispute or claim that arises or accrues on or after” March 3, 2022.

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Importantly, courts—as opposed to arbitrators—must determine under Federal law the validity or enforceability of an applicable agreement, in spite of any terms within the agreement to the contrary.

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The bill defines “sexual harassment dispute” to mean “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, and State law.”  “Sexual assault dispute” is defined as “involving a nonconsensual sexual act or sexual contact.” Pre-dispute mandatory arbitration agreements of sex discrimination claims or claims based on other protected categories like age, race, or religion are not affected by the new law.

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If you have questions regarding this article, please contact Patrick Maloney or Lisa Von Eschen of the Maloney Firm’s Employment Law Department.

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In 2021, two appellate decisions expanded the generally strict one-year statute of limitations for legal malpractice cases under Cal. Code of Civil Procedure (“CCP”) § 340.6. Knapp v. Ginsberg (2021) 67 Cal.App.5th 504 and Michaels v. Greenberg Traurig, LLP (2021) 62 Cal.App.5th 512 both offer the potentially tardy filer of legal malpractice claims the potential to survive summary judgment, as set out below. Knapp addressed the actual injury requirement, and Michaels addressed tolling under the continuous representation rule.

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Knapp v. Ginsberg

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Knapp v. Ginsberg discusses the rule that tolls the statute of limitations for legal malpractice until the plaintiff suffers actual injury, found in CCP § 340.6(a)(1). Knapp brought a legal malpractice claim against her counsel, Ginsberg, claiming that Ginsberg should have been aware that a premarital agreement executed with her late husband was invalid, due to her husband not having counsel, under Family Code § 1615. The claim was dismissed on a motion for summary judgment in the trial court based on the statute of limitations.  

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By way of background, the premarital agreement at issue was drafted in 2004. Knapp’s late husband passed away in 2016. Thereafter, litigation ensued regarding the estate of Knapp’s late husband, involving the property addressed in the premarital agreement. Knapp grew concerned during that litigation that the premarital agreement was invalid, and even approached Ginsberg to seek a tolling agreement on the premarital agreement during that pending litigation. Knapp settled the litigation regarding her late husband’s estate, but she received less than she would have had the premarital agreement been valid.

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Ginsberg asserted that Knapp’s malpractice claim was time-barred, because the premarital agreement was drafted in 2004 and the claim for legal malpractice was filed in 2019. The malpractice claim specifically sought relief based on a term within the premarital agreement that granted a lien on certain real property. Ginsberg claimed that the malpractice cause of action accrued at any one of the following junctures: (1) when the premarital agreement was executed, as her late husband was obviously unrepresented; (2) when Knapp was forced to pay off the mortgage on that real property, rather than her late husband’s estate, because a tangible financial injury occurred; or (3) when litigation was filed against Knapp relating to property that was the subject of the premarital agreement. The Court did not accept any of these dates, instead finding that the injury occurred when Knapp’s late husband’s estate refused to honor her creditor’s claim in the probate court arising from the lien granted by the premarital agreement. Knapp, supra, 67 Cal.App.5th at 536. The Court strictly applied the actual injury doctrine requiring the injury to relate directly to the alleged malpractice.

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Michaels v. Greenberg Traurig, LLP

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Michaels v. Greenberg Traurig, LLP addressed the “continuous representation rule” under CCP § 340.6(a)(2), which tolls the statute of limitation while the defendant law firm continues to represent the plaintiff. In Michaels, the trial court granted summary adjudication on statute of limitations grounds. Jillian Michaels was represented by Greenberg Traurig in relation to the creation of multiple entertainment related contracts. The alleged malpractice arose out of concurrently drafting two of those contracts that contained contradictory terms. Litigation ensued in which Greenberg Traurig represented Michaels, but Greenberg Traurig eventually substituted out of the litigation. Greenberg Traurig took the position that the continuous representation tolling ended when Greenberg Traurig substituted out of the litigation, because “that usually terminates the attorney/client relationship.” Michaels, supra, 62 Cal.App.5th at 536. The appellate court disagreed. Rather, because Greenberg Traurig had “communicated and worked” on the file providing advice relating to the litigation, they were arguably continuing to represent Michaels in relation to the contracts that were the basis of the malpractice claims. As such, there was sufficient evidence to constitute a triable issue of material fact regarding continuous representation, requiring the court to overturn the summary adjudication finding.

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The Takeaway

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While the legal malpractice statute of limitations is often interpreted strictly by the courts, the Knapp and Michaels cases show that the Courts will also apply the tolling provisions of CCP § 340.6(a) when appropriate to protect clients. Both cases allowed malpractice cases to survive summary judgment, despite a first blush reading suggesting the cases were filed too late. As such, any practitioner in the legal malpractice arena must become familiar with the reasoning applied in both Knapp and Michaels as both will surely be cited and relied upon by plaintiffs lawyers and trial courts when the statute of limitations is invoked. 

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About the Author:

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Carl Mueller is a business litigation attorney that represents clients in all phases of civil litigation. Mr. Mueller’s practice has a focus on attorney-client disputes of all kinds. If you have questions regarding this article contact Carl Mueller at cmueller@maloneyfirm.com.

*CLIENT ALERT: On March 3, 2022, Los Angeles County revised its masking requirements to align with the CDPH’s February 28, 2022 guidance, which is outlined below. LA County no longer requires masking, regardless of vaccination status, in most indoor public settings and businesses. Access the full updated guidance here.

As of March 1, 2022, per updated guidance from the CDPH and an executive order from Governor Gavin Newsom, most Californians, regardless of vaccination status, are no longer required by the State to wear masks while indoors. Universal masking is still required in specified “high-risk” settings, such as public transit and healthcare settings, and some local mask mandates, such as in Los Angeles County, remain in effect.

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California workers and business patrons are still strongly recommended to wear masks while indoors, regardless of vaccination status. California businesses may continue to require masking for patrons and workers and adopt more protective measures against the spread of COVID-19 in the workplace.

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Resources for California Businesses

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As mask mandates and other COVID-19-related guidance across California continue to change shape, employers and businesses should be aware of and remain compliant with the most stringent and protective guidance. Employers should also monitor Cal/OSHA’s website for updated masking guidance and details on the pending readoption of its Emergency Temporary Standards for COVID-19 Prevention (ETS). 

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Access the full text of Governor Newsom’s Executive Order N-5-22 here.

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Access the California Department of Public Health’s Updated Masking Guidance here.

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Access Cal/OSHA’s site for the COVID-19 Prevention Emergency Temporary Standards here.

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If you have questions regarding this article, please contact Patrick Maloney or Lisa Von Eschen of the Maloney Firm’s Employment Law Department.

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On February 23, 2022 the Los Angeles County Public Health Department announced that, beginning February 25, 2022, businesses may choose to exempt fully vaccinated customers, visitors, and onsite workers from the County’s universal indoor masking requirements. In order to implement these exemptions, businesses must verify that all customers and onsite workers are either fully vaccinated or have recently tested negative for COVID-19 using a viral test.

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As of Friday, February 25, 2022, businesses in Los Angeles County may implement any of the following three policies to comply with the County’s masking order:

• Option 1: Businesses may allow both fully vaccinated customers/visitors and onsite workers to unmask while indoors, only if they:
  • Verify proof of either full vaccination against COVID-19 or a recent negative COVID-19 viral test for all customers/visitors and onsite workers prior to entry. See the chart below for more details.
• Option 2: Businesses may allow only fully vaccinated customers/visitors to unmask while indoors, only if they:
  • Verify proof of either full vaccination against COVID-19 or a recent negative COVID-19 viral test for all customers/visitors. See the chart below for more details.
• Option 3: Businesses may continue to require all persons, regardless of vaccination status, to mask while indoors.

Under Options 1 and 2, persons who are not fully vaccinated, or have not shown proof of full vaccination, may still enter indoor businesses, but must show proof of a recent negative COVID-19 viral test and wear a mask while indoors. Certain exemptions to the universal masking requirements, such as when persons are actively eating or drinking, continue to apply regardless of vaccination status.

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Resources for California Businesses

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Access Los Angeles County’s Business Toolkit for Complying with Masking Orders here. Businesses can find appropriate signage and more information on complying with the masking order at this link.

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Learn more about verifying full vaccination here.

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Learn more about verifying negative COVID-19 tests here.

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Access the full Responding Together at Work and in the Community Order here.

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If you have questions regarding this article, please contact Patrick Maloney or Lisa Von Eschen of the Maloney Firm’s Employment Law Department.

On February 9, 2022, Governor Newsom signed Senate Bill (SB) 114, reviving COVID-19 supplemental paid sick leave requirements for California employers. Beginning February 19, 2022, certain California employers will be required to provide qualifying employees with up to 80 hours of COVID-19-related supplemental paid sick leave (CSPSL).

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The bill applies retroactively to January 1, 2022, and will remain in effect until September 30, 2022. Learn more about California’s new CSPSL requirements below.

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Covered Employers and Employees

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SB 114’s CSPSL requirements apply to all California employers with 26 or more employees. All employees of covered employers, regardless of their length of service, are entitled to an amount of CSPSL that varies according to the amount of hours they regularly work.

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Qualifying Reasons for Taking Leave

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Covered California employers must provide employees with CSPSL when they are unable to work or telework due to any of the following reasons:

• Employee is subject to a quarantine or isolation period related to COVID-19, as defined by federal, state, or local orders or guidance.
• Employee has been advised by a health care provider to isolate or quarantine due to COVID-19.
• Employee is attending an appointment for themselves or a family member to receive a COVID-19 vaccine or booster, subject to some limitations.*
• Employee is experiencing symptoms, or caring for a family member experiencing symptoms, related to a COVID-19 vaccine or booster that prevent the employee from being able to work or telework, subject to some limitations.*
• Employee is experiencing COVID-19 symptoms and seeking a medical diagnosis.
• Employee is caring for a family member who is subject to a COVID-19-related quarantine or isolation order or guidance or who has been advised to isolate or quarantine due to COVID-19-related concerns.
• Employee is caring for a child whose school or place of care is closed or otherwise unavailable for reasons related to COVID-19 on the premises.
• Employee tests positive, or is caring for a family member who tests positive, for COVID-19.

*For each vaccination or vaccine booster, an employer may limit the total COVID-19 supplemental paid sick leave to 3 days or 24 hours unless the employee provides verification from a health care provider that the covered employee or their family member is continuing to experience symptoms related to a COVID-19 vaccine or vaccine booster.

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Duration of COVID-19 Supplemental Paid Sick Leave

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All employees are entitled to two separate “up to 40 hour” reserves of leave, adding up to a maximum of 80 hours of CSPSL:

• One reserve of up to 40 hours CSPSL is only available if the employee tests positive for, or is caring for a family member who tests positive for, COVID-19.
  • Importantly, employers may require employees and/or their family member to provide documentation of a positive test to utilize this leave. If an employee refuses to provide the employer with this documentation, the employer may refuse to provide this leave. Employers should consult with legal counsel to discuss the limitations of imposing this verification requirement.
• The second reserve of up to 40 hours is only available for other covered reasons, such as vaccine appointments and recovery, quarantine and isolation, and experiencing COVID-19 symptoms.

Full-Time Employees: Employees are entitled to 40 hours per bank of leave if they are considered “full-time” or are otherwise scheduled to work on average at least 40 hours per week in the two weeks before they take CSPSL.

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Non-Full-Time Employees: Employees who do not work “full-time” are entitled to CSPSL in an amount proportional to their hours worked. This leave is calculated as follows:

• If the covered employee has a normal weekly schedule, they are entitled to the total number of hours they are normally scheduled to work for the employer over one week per bank of leave.
• If the covered employee works a variable number of hours, they are entitled to seven times the average number of daily hours the covered employee worked for the employer in the six calendar months preceding the date the covered employee took COVID-19 supplemental paid sick leave per bank of leave.
  • If the covered employee has worked for the employer over a period of fewer than six months but more than seven days, this calculation shall instead be made over the entire period the covered employee has worked for the employer.
• If the covered employee works a variable number of hours and has worked for the employer over a period of seven days or fewer, they are entitled to the total number of hours the covered employee has worked for that employer per bank of leave.

Rate of Pay

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Nonexempt employees’ rate of pay must be calculated using one of the following methods:

• Calculated in the same manner as the regular rate of pay for the workweek in which the employee uses CSPSL, whether or not the employee actually works overtime in that workweek.
• Calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total nonovertime hours worked in the full pay periods occurring within the prior 90 days of employment—provided that (for nonexempt employees paid by piece rate, commission or another method that uses all hours to determine the regular rate of pay) total wages, not including overtime premium pay, must be divided by all hours to determine the correct amount of COVID-19 supplemental paid sick leave under this subdivision.

Employers must calculate exempt employees’ rate of pay in the same manner used for other forms of paid leave time.

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Effective Dates and Limitations

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Employees may take a maximum of 80 hours SPSL between January 1, 2022 and September 30, 2022. Employees eligible for exclusion pay under Cal/OSHA’s Emergency Temporary Standards (ETS) or Aerosol Transmissible Diseases Standard (ATDS) may not be required to first exhaust SB 114’s CSPSL before using exclusion pay.

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Notice Requirements

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The Labor Commissioner will soon create a CSPSL model notice poster, which will be available on their website and must be displayed by covered employers in the workplace. When employees do not regularly visit the workplace, employers may satisfy this notice requirement by distributing the notice electronically, such as by email.

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Employers will also be required to notify qualifying employees of the amount of leave they have already used (which may be zero hours) on their wage statements or in separate documents. This wage statement obligation will not be enforceable until the first full pay period after the bill’s effective date on February 19, 2022. Within these notice statements, COVID-19 supplemental paid sick leave must be set forth separately from other paid sick days.

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Resources for California Employers

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Look out for the California Labor Commissioner’s model notice poster and additional FAQs here.

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View the full text of Senate Bill 114 here.

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If you have questions regarding this article, please contact Patrick Maloney or Lisa Von Eschen of the Maloney Firm’s Employment Law Department.

On February 15, 2022, the California Department of Public Health’s (CDPH) universal indoor masking mandate will expire. Beginning February 16, 2022, the CDPH will require only unvaccinated individuals to mask in all indoor public settings, and will only require universal masking in certain higher risk settings.

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However, California employers must still comply with Cal/OSHA’s masking requirements, which are codified in the COVID-19 Emergency Temporary Standards (ETS), and with local County or City ordinances, which may carry more stringent restrictions. Learn more about CDPH and Cal/OSHA masking requirements below.

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Ongoing Masking Requirements from the CDPH

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The CDPH continues to require all individuals, regardless of vaccination status, in the following settings to wear a mask:

• On public transit and in transportation hubs
• Indoors in K-12 schools and other specified childcare settings
• Emergency shelters and cooling and heating centers
• Healthcare settings
• State and local correctional facilities and detention centers
• Homeless shelters
• Long Term Care Settings and Adult and Senior Care Facilities

All unvaccinated individuals are also required to wear masks in all indoor public settings and businesses. The CDPH recommends, but does not require, vaccinated individuals wear masks in indoor settings.

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In settings where only unvaccinated individuals are required to wear masks, businesses may choose to:

• Provide information to all patrons, guests and attendees regarding vaccination requirements and allow vaccinated individuals to self-attest that they are in compliance prior to entry;
• Implement vaccine verification to determine whether individuals are required to wear a mask; or
• Require all patrons to wear masks.

Revived Cal/OSHA ETS Masking Requirements

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Under Cal/OSHA’s ETS, fully vaccinated employees are not required to wear a mask. Unvaccinated employees may remove their mask under certain limited circumstances, such as when they are alone in a room or while eating or drinking and maintaining physical distancing. Employers must provide unvaccinated employees with compliant face coverings, and ensure they are worn indoors.

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Resources for California Employers

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As masking guidance remains inconsistent throughout the State, employers should remain vigilant and continue to follow more stringent masking and vaccine verification guidance from local authorities, such as Los Angeles County, which has not yet lifted its universal indoor mask mandate. The updated, loosened guidance from Cal/OSHA and the CDPH also do not prohibit California employers and businesses from implementing or maintaining more protective masking rules.

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View the CDPH’s Announcement lifting some masking requirements here.

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Learn more about Cal/OSHA’s recently updated COVID-19 ETS here.

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View the full text of Cal/OSHA’s Emergency Temporary Standards here.

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If you have questions regarding this article, please contact Patrick Maloney or Lisa Von Eschen of the Maloney Firm’s Employment Law Department.

On January 27, 2022, the California Supreme Court answered the Ninth Circuit’s certified question of California law in Lawson v. PPG Architectural Finishes, Inc., determining that trial courts must use the worker-friendly test established under California Labor Code section 1102.6 (§ 1102.6) to evaluate whistleblower retaliation claims.

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Importantly, the test only requires employees to prove that retaliation contributed to an adverse employment action, such as a termination or demotion. The burden is then shifted to the employer to prove that they would have taken the same action for legitimate, independent reasons. Previously, California courts were largely split on whether to evaluate whistleblower retaliation claims with the § 1102.6 test, or a more stringent three-part test established by the United States Supreme Court. Learn more about the case and its implications for California businesses below.

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Background

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Plaintiff Wallen Lawson worked for defendant PPG Architectural Finishes, Inc. (PPG), a paint and coatings manufacturer, from 2015 until 2017. His performance as an employee was evaluated using two criteria: his ability to meet sales benchmarks, and his scores on “market-walks,” during which PPG managers, including his own manager, Clarence Moore, observed his interactions with his client’s staff and customers. In the Spring of 2017, after his market-walk scores dipped and he was unable to consistently meet his monthly sales targets, Lawson was placed on a performance improvement plan.

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Around the same time that Spring, Lawson alleges that Moore ordered him to intentionally mistint slow-selling paints so that PPG could avoid buying back excess unsold products. Lawson openly refused to participate in Moore’s scheme, and filed two anonymous complaints with PPG’s ethics hotline, which triggered an investigation into Moore’s practices. While Moore was ordered to suspend this practice, he remained with PPG as Lawson’s direct supervisor.

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Months later, after he was unable to meet the standards contained in his performance improvement plan, Lawson was fired. Lawson then filed suit, alleging that PPG fired him because he blew the whistle on Moore’s fraudulent practices, in violation of California Labor Code section 1102.5 (§ 1102.5).

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The District Court’s Ruling

When evaluating Lawson’s claim, the District Court for the Central District of California used the three-part burden-shifting framework established by the United States Supreme Court in McDonnell Douglas Corp. v. Green. The three components of the McDonnell Douglas framework are as follows:

• 1. The employee must establish a prima facie case of unlawful discrimination or retaliation.
• 2. The employer bears the burden of articulating a legitimate reason for taking the challenged adverse employment action.
• 3. The employee then bears the burden of demonstrating that the employer’s preferred legitimate reason is a pretext for discrimination or retaliation.

Applying this framework, the district court ruled that, while Lawson established a prima facie case of unlawful retaliation based on his whistleblowing efforts, he was unable to provide sufficient evidence to satisfy the third step of the McDonnell Douglas test. As a result, he could not establish that the reasons given for his termination were pretextual. The court then granted summary judgement in favor of PPG.

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The Ninth Circuit Asks the California Supreme Court to Clarify California Law

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On appeal, Lawson argued that the district court should have instead applied the § 1102.6 test in assessing his claim. Under the § 1102.6 framework, Lawson would have only been required to prove that retaliation was a contributing factor in his termination, not that PPG’s stated reason for terminating his employment was pretextual.

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The Ninth Circuit ruled that, while the outcome of Lawson’s case hinged upon which framework the court used, it was not clear which framework rightly applied. The Ninth Circuit then asked the California Supreme Court to determine which test should be used to evaluate retaliation claims brought under California’s § 1102.5.

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The California Supreme Court Endorses Use of § 1102.6 Test

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In a landmark decision, the California Supreme Court determined that § 1102.6 supplies the evidentiary standard for presenting and evaluating retaliation claims brought under § 1102.5. The § 1102.6 test places the initial burden on the plaintiff to prove, by a preponderance of the evidence, that retaliation in response to an employee’s protected activity contributed to a contested employment action. Importantly, the Court determined that the plaintiff is not required to satisfy the McDonnell Douglas test to fulfill this requirement. If the employee meets the initial burden, then the burden shifts to the employer to demonstrate that the employer would have taken the contested adverse action for a legitimate, independent reason even if the plaintiff had not engaged in protected activity.

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The Court emphasized that the § 1102.6 framework was created to “encourage earlier and more frequent reporting of wrongdoing by employees…when they have knowledge of specified illegal acts” by bolstering “employee protection against retaliation.”

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If you have questions regarding this article, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick Maloney, Lisa Von Eschen, or Samantha Botros.

By Nicholas Grether, Esq., The Maloney Firm, APC

In November 2021, at the request of the Biden Administration, the federal Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (Federal ETS) requiring large employers with 100 or more employees to mandate vaccination or regular testing for their employees. A temporary injunction blocked the Federal ETS’s requirements before they were scheduled to take effect.

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On January 13, 2022, the U.S. Supreme Court reapplied the temporary injunction blocking enforcement of the Federal ETS. For now, enforcement of the Federal ETS remains “on hold” while the Sixth Circuit Court of Appeals—and potentially the Supreme Court—determine its constitutionality.

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Even if the Sixth Circuit Court of Appeals determines that the Federal ETS is valid in the coming weeks and allows its enforcement, the Federal ETS would likely face subsequent challenges in the Supreme Court. It appears that, for all intents and purposes, the Federal ETS will not take effect.

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While large employers are—for the time being—not required to impose vaccine-or-testing mandates, California employers are still permitted to implement vaccine or vaccine-or-testing mandates. The U.S. Congress and other federal agencies may also make additional rules related to vaccines and testing. We also note that OSHA’s rule requiring vaccination for most healthcare workers was upheld by the Court.

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As a reminder, Cal/OSHA’s updated Emergency Temporary Standards (ETS) for COVID-19 prevention took effect on January 14, 2022. While the ETS is already outdated in light of the CDPH’s recently revised masking and quarantine requirements, continuing adjustments and clarifications to the ETS can be found on Cal/OSHA’s Frequently Asked Questions page. Generally, California employers are subject to the most “protective” health and safety requirements, which may come from state authorities such as Cal/OSHA and the California Department of Public Health (CDPH) and local authorities such as Los Angeles County.

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If you have questions regarding the application of any of the updated COVID-19 prevention recommendations and mandates to your business, please contact one of the following attorneys in The Maloney Firm’s Employment Law Department: Patrick Maloney, Lisa Von Eschen, Samantha Botros, or Nicholas Grether.