Updates to Cal/OSHA’s COVID-19 ETS Will Take Effect January 14, 2022

On December 16, 2021, Cal/OSHA’s Standards Board (OSHSB) voted to readopt a revised version of the COVID-19 Emergency Temporary Standards (ETS). This updated ETS will take effect January 14, 2022, and will remain in effect until April 14, 2022. An updated set of FAQs about the ETS will likely be released in the coming weeks.

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Important Changes

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Face Coverings

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As always, California employers are required to adhere to the most protective guidance, which may come from state (CDPH) and local (Los Angeles County) authorities. On December 17, the California Department of Public Health added a universal requirement for masking indoors, which is effective until January 15, 2022. Los Angeles County continues to require universal indoor masking until further notice (which will likely extend past the State’s current January 15 expiration date).

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The updated ETS adds a new requirement that face coverings “not let light pass through when held up to a light source,” unless they are clear masks used for accommodations purposes.

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Close Contacts: Testing, Exclusion, and Return to Work

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Cal/OSHA made several changes to bring the ETS in line with CDPH testing and exclusion recommendations. Importantly, after a close contact with a COVID-19 case and during an outbreak, employers must make COVID-19 testing available at no cost and during paid time to employees who were fully vaccinated before the close contact occurred, even if they are asymptomatic. During outbreaks and major outbreaks, employers must now make weekly testing (outbreaks) or twice-weekly testing (major outbreaks) available to asymptomatic fully vaccinated employees in the exposed group.

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Employees who have recently recovered from COVID-19 and those who are fully vaccinated are not required to be excluded from the workplace after a “close contact” but must wear a face covering and maintain six feet of physical distancing for 14 calendar days following the last date of contact.

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Employees that are not documented as fully vaccinated who had a close contact and do not develop COVID-19 symptoms may return to work 14 days after their last known close contact, or may return early under the following conditions:

  • 10 days after their last known close contact, the asymptomatic employee may return to work if they wear a face covering and maintain 6 feet of distance from others while at the workplace for 14 days.
  • 7 days after their last known close contact, the asymptomatic employee tests negative for COVID-19 using a specimen taken at least 5 days after the last known close contact, and wears a face covering and maintains 6 feet of distance from others while at the workplace for 14 days.

Updated Definitions: COVID-19 Testing and Fully Vaccinated

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COVID-19 Test

Under certain circumstances, employees are required to test for COVID-19. These tests may no longer be both self-administered and self-read, unless they are observed by the employer or an authorized telehealth proctor.

Fully Vaccinated

Under the revised ETS, individuals who mix-and-match vaccine doses are considered fully vaccinated two weeks after receiving the second dose of any combination of two doses of a COVID-19 vaccine that is approved or authorized by the FDA, or listed as a two-dose series by the WHO. The second dose of this mix-and-match series must not be received earlier than 17 days after the first dose.

Generally, compliant vaccines must either have emergency use authorization from the FDA or be listed for emergency use by the (World Health Organization) WHO. Under certain circumstances, employees who were vaccinated as part of a clinical trial will be considered fully vaccinated under the updated ETS.

Resources for California Employers

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View a revised version of Cal/OSHA’s COVID-19 ETS here.

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View the California Department of Public Health’s Guidance for the Use of Face Coverings here.

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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 MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

Our Annual Update Has Arrived!

The Maloney Firm’s Employment Law Department is excited to release our annual employment law update, which introduces the new laws and cases that will most significantly impact California employers, businesses, and attorneys in 2022.

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Meet the Authors:

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Lisa Von Eschen counsels businesses and non-profit organizations on employment law compliance issues, including exempt classifications, leaves of absence, payroll, discipline, grievances, terminations, and reductions in force. Her practice includes advising companies and executives on employment contracts, commission and bonus plans, restrictive covenants, trade secret and confidentiality issues, and severance agreements.

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Patrick Maloney represents clients in business disputes. He has served as lead trial counsel in bench and jury trials in state and federal courts and in arbitration. He has represented companies in antitrust and patent matters, shareholder and partnership disputes, employment disputes, and in disputes between clients and lawyers in malpractice, fiduciary duty claims, and fee disputes.

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Nicholas Grether is an attorney in the Employment Law Department. He has represented dozens of clients in arbitration, and state and federal court, concerning alleged violations of state and federal employment laws. Nick also works with clients to update their policies to stay current with the ever-changing world of employment law.

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Samantha Botros represents and counsels employers and management in many aspects of employment law, including discrimination, sexual harassment, privacy issues, and California wage and hour matters. Her
practice also includes advising clients on severance agreements, employee handbooks, and personnel policies. She also conducts preventative training sessions on harassment.

Congratulations to Maloney Firm client George Kambosos Jr. on his victory against Teofimo Lopez, Jr.

Last Saturday, boxer George Kambosos Jr. triumphed over Teofimo Lopez, Jr. to become the unified world lightweight champion. After several months of legal battles and scheduling conflicts, the two renowned fighters took to the ring at Madison Square Garden. Kambosos upset the otherwise undefeated Lopez to score a split decision victory, claiming the WBO, WBA, IBF, and WBC franchise lightweight championships. Congratulations to Kambosos and his team on an incredible win.

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Read more about Kambosos’ victory here.

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Patrick Maloney Nominated to Los Angeles Business Journal’s 2021 Leaders in Law Awards

Congratulations to Patrick Maloney on his nomination to the Los Angeles Business Journal’s 2021 Leaders in Law Awards! Join us in celebrating Patrick and his fellow nominees at an awards ceremony hosted by the Journal on November 17, 2021 at 2:00pm.

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Register for the webinar at this link: https://us02web.zoom.us/webinar/register/WN_a8riSMCrSpGDOYEH24yQLA

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The Los Angeles Business Journal’s annual Leaders in Law Awards recognize attorneys for their exceptional legal skill and achievement across the full spectrum of responsibility, exemplary leadership, and contributions to the Los Angeles community at large. A business litigator and founder of the Maloney Firm, Patrick has been nominated as a Los Angeles “Leader in Law” for the second consecutive year.

LA City Passes Expanded Vaccination Verification Mandate

On October 6, 2021, the Los Angeles City Council passed an ordinance expanding vaccination verification requirements for certain indoor businesses that present a high risk for COVID-19 transmission, such as restaurants and fitness and entertainment centers. Covered businesses will be required to verify patrons’ vaccination status starting November 4, 2021, and to display notices informing patrons of these impending requirements by October 21, 2021.

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This mandate comes in the wake of Los Angeles County’s September 17 order, which took effect October 7 and requires bars, breweries, wineries, distilleries, nightclubs, and lounges to verify the COVID-19 vaccination status of both patrons and employees for indoor service.

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Click here to access Los Angeles County’s Business Toolkit, which contains guidelines for implementing vaccination verification requirements. Learn more about LA City’s expanded vaccination verification requirements below.

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Covered Businesses

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A wider range of indoor facilities are covered by LA City’s new order, including:

  • Establishments where food or beverages are served
    • Such as: restaurants, bars, fast food establishments, coffee shops, tasting rooms, cafeterias, food courts, breweries, wineries, distilleries, banquet halls, and hotel ballrooms
  • Gyms and fitness venues
    • Such as: gyms, recreation facilities, fitness centers, yoga, pilates, cycling, barre, and dance studios, hotel gyms, boxing and kickboxing gyms, fitness boot camps, and other facilities used for conducting indoor group fitness classes
  • Entertainment and recreation venues
    • Such as: movie theaters, music and concert venues, live performance venues, adult entertainment venues, commercial event and party venues, sports arenas, convention centers, exhibition halls, museums, malls, shopping centers, performing arts theaters, bowling alleys, arcades, card rooms, family entertainment centers, play areas, pool and billiard halls, and other recreational game centers
  • Personal care establishments
    • Including: spas, nail salons, hair salons, barbershops, tanning salons, estheticians, skin care and cosmetology services, body art professionals, piercing shops, and massage therapy, except as medically required

This order only applies to businesses with indoor facilities; patrons are not required by this order to verify their vaccination status for outdoor service.

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Provisions

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Beginning November 4, 2021, covered businesses must require eligible patrons to provide proof of full vaccination upon entering the indoor portion of their facility. Businesses must also cross-check patrons’ proof of vaccination against their photo identification if they appear to be 18 years of age or older.

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View LA County’s Guidance for Verifying Proof of COVID-19 Vaccination here.

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View LA County’s Guidance for Verifying Proof of a Negative COVID-19 Test here.

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Some patrons may be exempt from the above vaccination verification requirements for qualifying religious and medical reasons. If a business determines that a patron has met the requirements for an exemption, or if a patron otherwise does not provide proof of vaccination, the patron may use the outdoor portion of the facility. If there is no outdoor portion, exempted patrons may enter the indoor portion of the facility by providing proof of a negative COVID-19 test and photo identification. For more information on exemptions, click here and navigate to page 6 of the order.

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The order also extends vaccination verification requirements to city facilities and large outdoor events with between 5,000 and 9,999 attendees. Large indoor events are subject to vaccination verification requirements under a Los Angeles County order.

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Resources for California Business Owners

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Click here to access the full draft text of LA City’s COVID-19 vaccination verification order.

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Learn more about LA County’s vaccination verification requirements here.

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Click here to access Los Angeles County’s Business Toolkit for Complying with Health Officer orders.

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View LA County’s Guidance for Verifying Proof of COVID-19 Vaccination here.

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View LA County’s Guidance for Verifying Proof of a Negative COVID-19 Test here.

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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 MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

LA County Implements New Vaccination Verification Guidance

On September 17, 2021, the Los Angeles County Department of Public Health issued new COVID-19 vaccine verification and testing guidance for food and drink facilities. Beginning October 7, 2021, bars, breweries, wineries, distilleries, nightclubs, and lounges will be required to verify the COVID-19 vaccination status of patrons and employees for indoor service. Other restaurants are encouraged to similarly reserve indoor services for those who are fully vaccinated against COVID-19.

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Verifying Proof of Vaccination

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For the purposes of this order, individuals are considered “fully vaccinated” against COVID-19 two weeks or more after they have received either the second dose in a 2-dose series (e.g., Pfizer-BioNTech or Moderna) or a single-dose vaccine (e.g., Johnson and Johnson [J&J]/Janssen). Los Angeles County has issued guidelines for how businesses may verify individuals’ vaccination and testing statuses:

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View LA County’s Guidance for Verifying Proof of COVID-19 Vaccination here.

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View LA County’s Guidance for Verifying Proof of a Negative COVID-19 Test here.

Requirements for Bars, Breweries, Wineries, Distilleries, Nightclubs, and Lounges

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The Health Department’s new vaccination verification requirements apply to the following facilities:

  • Bars, Breweries, Wineries, and Distilleries, defined as:
    • Bars that have a low-risk food facility public health permit, and
    • Breweries, wineries, and distilleries with a #1, #2, #4, #23, and/or #74 state alcohol license that do not possess or that are not required to have a public health permit to operate.
  • Nightclubs and Lounges that are open only to persons 18 years of age or older, defined as:
    • Nightclub means a commercial establishment dispensing beverages for consumption on the premises and in which dancing is permitted or entertainment is provided, and/or has as its primary source of revenue (a) the sale of alcohol for consumption on the premises, (b) cover charges, or (c) both.
    • A lounge is defined as a business that operates primarily for the preparation, sale, and service of beer, wine, or spirits.

Effective October 7, 2021:

  • Bars, Breweries, Wineries, and Distilleries must require patrons who are 12 years of age or older to provide proof of their COVID-19 vaccination status for entry.
  • Nightclubs and Lounges must require patrons and on-site personnel to provide proof of their COVID-19 vaccination status for entry.

Between October 7, 2021 and November 3, 2021:

  • All patrons of Bars, Breweries, Wineries, and Distilleries and Nightclubs and Lounges must provide proof they have received at least one dose of COVID-19 vaccination for entry into the facility to obtain indoor service.

Beginning November 4, 2021:

  • Bars, Breweries, Wineries, and Distilleries must require patrons who are 12 years of age or older to provide proof of full vaccination against COVID-19 for entry into the facility to obtain indoor service.
  • Nightclubs and Lounges must require patrons to provide proof of full vaccination for entry into the facility to obtain indoor service.
  • All onsite employees of bars, breweries, wineries, distilleries, nightclubs, and lounges must provide their employer with proof of full vaccination against COVID-19.

Eligible on-site employees may be exempt from the above vaccination requirements for qualifying religious and medical reasons. Exempted employees must be tested for COVID-19 at least once per week and wear either a surgical mask or higher-level respirator at all times while in the facility. Click here and navigate to page 10 for more details on employee vaccination exemptions.

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Individuals—not including on-site employees—who do not provide the required proof of vaccination may be served in and/or use the outdoor portions of the facility. These individuals may not remain inside the facility unless they wear a well-fitted maskand are entering the facility for one of the following reasons:

  • As part of their employment to make a delivery or pick-up, provide a service or repair to the facility, or for an emergency or regulatory purpose.
  • To get to the outdoor portion of the facility or to use the restroom.
  • To order, pick-up, or pay for food or drink “to go.”

Recommendations for Restaurants

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Under this order, restaurants are defined as indoor venues that serve food or drink indoors and are required to maintain a valid public health permit to operate. The County Health Officer strongly recommends, but does not require, that restaurants reserve and prioritize indoor seating and service for fully vaccinated patrons. These restaurants are encouraged to verify the full vaccination status of all patrons 12 years of age or older who are seated indoors for food or beverage service, and to serve patrons who cannot provide proof of full vaccination in outdoor portions of the facility.

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Resources for California Employers

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Employers that wish to implement vaccine verification and other COVID-19 prevention-related requirements for their workers, contractors, or other visitors should consult with counsel to develop a clear, written strategy, and, as always, be prepared to adjust to further regulations from local, state, and federal entities. Businesses within the City of Los Angeles should also stay tuned for a potential vaccine verification mandate for indoor restaurants and fitness facilities.

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View the full text of Los Angeles County’s updated public health order here.

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View LA County’s Guidance for Verifying Proof of COVID-19 Vaccination here.

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View LA County’s Guidance for Verifying Proof of a Negative COVID-19 Test here.

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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 MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

California Appellate Court Affirms Trial Court’s Ability to Assess Manageability of PAGA Claims

By Lisa Von Eschen, Esq., The Maloney Firm, APC

On September 9, 2021, a California Court of Appeal in Wesson v. Staples, Cal. App. 5th (Cal. App., Sept. 9, 2021) affirmed the lower court’s decision striking the alleged PAGA claims, holding that “trial courts have inherent authority to ensure that PAGA claims will be manageable at trial, and to strike such claims if they cannot be managed.”

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Context

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The Private Attorneys General Act (PAGA) enables employees to file lawsuits on behalf of themselves, other employees, and the State of California for Labor Code violations. In 2009, the California Supreme Court ruled that PAGA actions are not subject to the same rigorous certification procedure required for bringing class action suits.

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Instead, for a representative PAGA claim to advance to trial, it must be “manageable,” or subject to a form of “common proof,” in order to protect the allegedly infringing employer’s right to due process. A PAGA claim’s manageability comes into question when individualized inquiries for a large number of employees are required to determine whether any Labor Code violations have been committed.

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The Issue

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In Wesson v. Staples, Wesson filed a representative PAGA claim alleging that Staples had misclassified himself and 345 other former and current store general managers (GM’s) as exempt executives. Staples moved to strike Wesson’s claim, arguing that litigating their affirmative defense that each GM was properly classified would be unmanageable, as Staples would need to conduct individualized investigations and present proof at trial for each GM.

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The trial court invited Wesson to create a trial plan demonstrating the manageability of his claim. During a subsequent hearing on Staples’ motion, the parties estimated that it would take eight years—six trial days per each of 346 GMs—to litigate Staples’ defense. After Wesson continually insisted that the court lacked the authority to ensure PAGA actions are manageable, and failed to address how to manageably litigate Staples’ affirmative defense, the court granted Staples’ motion to strike the PAGA claim.

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The Appellate Court’s Decision

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In its decision, the California Court of Appeal affirmed the trial court’s ruling, concluding that:

(1) courts have inherent authority to ensure that PAGA claims can be fairly and efficiently tried and, if necessary, may strike claims that cannot be rendered manageable; (2) as a matter of due process, defendants are entitled to a fair opportunity to litigate available affirmative defenses, and a court’s manageability assessment should account for them; and (3) given the state of the record and Wesson’s lack of cooperation with the trial court’s manageability inquiry, the court did not abuse its discretion in striking his PAGA claim as unmanageable.

Staples presented evidence, which Wesson did not contest on appeal, that the significant variation in Staples GMs’ work experiences would require ‘individualized assessments of each GM’s classification and would lead to “an unmanageable mess” that “would waste the time and resources of the Court and the parties.”’ As the trial court was not presented with any “apparent way to litigate Staples’s affirmative defense in a fair and expeditious manner,” the appellate court affirmed that “the trial court did not abuse its discretion in striking Wesson’s claim as unmanageable.”

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Nonetheless, the appellate court asserted that PAGA claims will not always be struck if they are found to be unmanageable, and that courts “should work with the parties to render a PAGA claim manageable by adopting a feasible trial plan or limiting the claim’s scope.” The appellate court further clarified that it did “not hold that a PAGA misclassification case can never be managed through common-proof methods,” but that “Wesson’s lack of cooperation with the trial court’s inquiry in this regard stymied the court’s efforts to devise a plan that would allow the action to proceed.”

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The Takeaway

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Wesson is the first California appellate decision to acknowledge a trial court’s ability to dismiss unmanageable PAGA claims, but its application may be somewhat limited by its facts. Although it recognized the trial court’s interest in ensuring an efficient and fair trial, the Court of Appeal did not provide guidance or factors for determining which PAGA claims – short of those that would take eight years in trial – are not manageable.

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The court also did not address whether plaintiffs bear the burden to prove manageability (as in class actions), or if defendants must prove unmanageability. While Wesson is not an open door to dismissal of representative PAGA actions, a trial court’s ability to assess manageability may help employers reduce the breadth of potential claims as well as supply defensive strategies and settlement leverage.

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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 MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

Biden Expands Vaccine Mandate to Include Employers of 100+ Employees, Amongst Others

On September 9, 2021, President Biden introduced a far-reaching, six-part strategy to combat the continuing spread of COVID-19 across the country. Significantly, the plan will soon require more employers, including all public and private employers with over 100 employees, to ensure all workers are either fully vaccinated or tested weekly. This mandate is expected to impact over 80 million American workers.

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The United States Occupational Safety and Health Administration (OSHA) will soon release an Emergency Temporary Standard (ETS) codifying this requirement. In the meantime, California employers should begin reevaluating their COVID-19 prevention plans to comply with these impending mandates.

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Covered Employers and Provisions

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Although President Biden has encouraged all businesses and entities in the private and public sectors to do their part to encourage vaccination, the federal vaccination verification and/or testing requirements have been expanded to include the following employers and workers:

  • All Employers with 100+ Employees,
  • Federal Workers and Specified Contractors that Do Business with the Federal Government, and
  • Health Care Workers at Medicare and Medicaid Participating Hospitals and Other Health Care Settings

Employers with 100+ employees who are subject to this upcoming vaccination mandate will be required to ensure that their workforce is either fully vaccinated or require any unvaccinated workers to produce a negative test result on at least a weekly basis. These employers must also provide their workers with paid time off to get vaccinated and to recover post-vaccination.

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President Biden’s plan further encourages, but does not require, entertainment venues (such as sports arenas, large concert halls, and other venues where large groups of people gather) to require that their patrons be vaccinated or show a negative test for entry.

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Covered employers should monitor OSHA’s website for further guidance on implementing these vaccine verification and testing requirements.

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Existing Guidance for Implementing Vaccine Verification and Testing Requirements

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As we noted last week, the California Department of Public Health (CDPH) has issued limited guidance on how organizations in California may implement their own COVID-19 vaccine verification processes.

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The CDPH has advised the following:

When seeking confirmation of COVID-19 vaccination status, organizations may manually review a paper or digital copy of individual’s COVID-19 Vaccine Record Card or use a SMART Health Card-compatible reader to confirm the information contained in the digital vaccine record, with the individual’s consent.

As part of that process, California recommends that organizations adhere to the following standards and principles for COVID-19 vaccine verification:

  • Records should be verified through a private and confidential process. 
  • Verification should not create or perpetuate social or health inequities or lead to discrimination.
  • Verification should not create barriers to essential services or restrict access based on a protected characteristic. 
  • Workers who are not fully vaccinated, or for whom vaccine status is unknown or documentation is not provided, should be considered unvaccinated. 

The California Department of Fair Employment and Housing (DFEH) has also released guidance on how employers may comply with the Fair Employment and Housing Act (FEHA), which prohibits workplace harassment, while implementing vaccine verification and other COVID-19 prevention-related policies. Access this guidance here.

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Resources for California Employers

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Employers that wish to implement vaccine verification and other COVID-19 prevention-related requirements for their workers, contractors, or other visitors should consult with counsel to develop a clear, written strategy, and, as always, be prepared to adjust to further regulations from local, state, and federal entities. California employers should also stay tuned for anticipated vaccination requirements for visitors of some indoor venues imposed by local jurisdictions.

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View President Biden’s Path Out of the Pandemic here.

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View the CDPH’s Guidelines for Implementing a COVID-19 Vaccine Verification Process here.

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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 MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.

The Buck Stops Here: Retainer Agreements Cannot Grant Attorneys The Right To Enter A Settlement Agreement Over Their Client’s Objections

By Carl Mueller, Esq., The Maloney Firm, APC

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On August 30, 2021, the Cal. Court of Appeal published Amjadi v. Brown (2021 WL 3855831), which clarified that attorneys cannot use retainer agreements to prospectively grant themselves the right to enter into settlement agreements over the objections of their clients. The appellate court has referred the attorneys involved in the action to the California State Bar for discipline due to several violations of the California Rules of Professional Conduct (“CRPC”).

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The Issue

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Before trial, the attorney-client relationship between Plaintiff and her counsel, Kevin Jolly of Jolly Berry Law, soured, causing Jolly to file a motion to withdraw, which was denied by the trial court. Subsequently, Jolly approached Defense’s counsel regarding renewing their offer—which was previously rejected by Plaintiff—to settle the case for $150,000. After Defense counsel renewed their offer, Jolly informed Plaintiff that he was signing the offer on her behalf. Although Plaintiff objected to the settlement offer and ordered Jolly to sign a substitution of attorney form, Jolly signed the settlement agreement.

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The trial court accepted the settlement and dismissed Plaintiff’s subsequent declaration objecting to the settlement and dismissal. The trial court based its decision on the following provision within the settlement agreement between Plaintiff and Jolly:

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CLIENT agrees that if a settlement offer is tendered in the case by any defendants and the ATTORNEY believes in good faith that the settlement offer is reasonable, and the acceptance of the offer is in the CLIENT’s best interest, and should be accepted, CLIENT authorizes ATTORNEY to accept said offer on CLIENT’s behalf, at ATTORNEY’s sole discretion.

The Appellate Court’s Decision

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The Court of Appeal rightly held that this provision of the retainer agreement runs afoul of CRPC 1.2(a), which states that “a lawyer shall abide by a client’s decision whether to settle a matter.” While the commentary of CRPC 1.2 does allow advance approvals of settlements, it does not authorize attorneys to “settle a case over a client’s contemporaneous objection.” As such, because the provision was illegal and invalid, the order approving the settlement was overturned. Indeed, the Court of Appeal doubted that such a blanket authorization would be sufficiently specific to be valid, particularly in the absence of a waiver.

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Additionally, the Court of Appeal found that the provision created an immediate and “direct conflict of interest under [CRPC] 1.7 (c)” when a client does object to a settlement. To wit, and additionally, the Court of Appeal referred the attorney to the State Bar for investigation for potential violations of CRPC 1.6, 1.7, and 1.9.

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The Takeaway

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A necessary consideration not within the text of the Amjadi decision is whether or not the rest of the contingency fee agreement retains validity in light of the finding that the provision at issue is illegal. In this case, the retainer agreement will likely be rendered invalid. As such, if the client voids the agreement, the attorney will no longer be entitled to a contingency fee, but only to a “reasonable fee.” Gutierrez v. Girardi (2011) 194 Cal.App.4th 925; Flannery v. Prentice (2001) 26 Cal.4th 572.

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A further note for any attorney still considering seeking advance authority to enter settlement agreements on behalf of their clients: it can be done legally, but it is difficult to do. As the Court of Appeal ruled in Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, a retainer agreement that granted an attorney the right to settle upon receipt of minimum offer of $150,000 was not facially invalid. The specific circumstances, importantly the minimum amount of the offer, were key in determining the validity of that retainer agreement provision. However, that case still resulted in the attorney facing a potential conflict when the client objected to the final settlement.

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Therefore, any attorney seeking advance approval from their clients in their retainer agreements to enter settlement agreements should proceed with caution.

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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.

Testing and Vaccine Verification Requirements Across California

On Monday, August 30, 2021, California Assemblymember Buffy Wicks announced that her proposed vaccine verification bill, which would require all California employers to impose testing or proof of vaccination mandates on their employees, will not move forward in the State Legislature until 2022. Nonetheless, several local governments and businesses have implemented or are considering vaccine verification requirements for both employees and patrons of indoor businesses. Learn more about existing and impending proof of vaccination mandates across California below.

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State of California

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California’s Department of Public Health has issued a patchwork of vaccine verification and testing mandates for visitors and workers in certain healthcare and other high risk settings, workers in schools, and other state employees. The department has also recently issued limited guidance on how organizations may implement their own COVID-19 vaccine verification processes. While a more comprehensive, statewide proof of vaccination mandate looks to be off the table this year, California continues to encourage “private businesses and local governments across the state to follow the state’s lead and adopt vaccine verification systems for their employees.”

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City and County of San Francisco

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On August 12, 2021, the City and County of San Francisco issued an order requiring certain businesses to check for proof of full vaccination from both patrons 12 years and older and staff. Although the order “strongly urges” all businesses and governmental entities to consider implementing vaccine verification measures, only the following businesses are currently subject to this order:

  • Food Services: Operators or hosts of establishments or events where food or drink is served indoors—including, but not limited to, dining establishments, bars, clubs, theaters, and entertainment venues.
  • Fitness Services: Gyms, recreation facilities, yoga studios, dance studios, and other fitness establishments, where any patrons engage in cardiovascular, aerobic, strength training, or other exercise involving elevated breathing.

For the purposes of this order, individuals are “fully vaccinated” two weeks after completing the entire recommended series of vaccination with a vaccine authorized to prevent COVID-19 by the FDA or the World Health Organization (WHO).

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For eligible patrons, these vaccine verification provisions took effect on August 20, 2021. Eligible staff must provide proof of full vaccination by October 13, 2021.

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The order also expands California’s August 5, 2021 vaccination and testing requirements for workers in high-risk settings and healthcare facilities to include healthcare personnel in adult care facilities, adult day programs licensed by the California Department of Social Services, and dental offices.

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Certain attendees, staff, and performers of “large” and “mega” indoor events are subject to new, more stringent vaccine verification requirements under the order as well.

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For more information on San Francisco City and County’s order, navigate here.

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Los Angeles Area

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In early August, Los Angeles City and County indicated that they are considering similar requirements, which would likely require patrons and workers to provide proof of vaccination in certain indoor businesses. While Los Angeles has not yet released such a mandate, nearby jurisdictions, including Palm Springs and Cathedral City, have issued vaccine verification requirements for indoor bars and restaurants.

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Resources for California Employers

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California employers should be prepared to adjust to more regulations from both local jurisdictions and the State, as the rapid spread of the highly contagious Delta variant continues to necessitate more stringent COVID-19 prevention measures.

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View the City and County of San Francisco’s Health Officer Order here.

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View the California Department of Public Health’s Guidelines for Implementing a COVID-19 Vaccine Verification Process here.

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View all guidance documents from the California Department of Public Health here.

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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 MaloneyLisa Von EschenSamantha Botros, or Nicholas Grether.