On May 18, 2021, Los Angeles County passed an urgency ordinance requiring some employers to provide additional paid leave for employees to receive COVID-19 vaccinations. This leave is to be provided if employees exhaust the COVID-19 supplemental paid sick leave required by the State.

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Eligibility

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This legislation applies to all private employers in the unincorporated areas of Los Angeles County. Both full-time and part-time employees are covered under this ordinance.

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Provisions

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Eligible employers must provide paid leave that includes time spent for:

• traveling to and from a COVID-19 vaccine appointment,
• receiving the COVID-19 vaccine injection, and
• recovering from any symptoms related to receiving the COVID-19 vaccine that prevent them from being able to work or telework.

For the purposes of this ordinance, “Full-time employees” are defined as those employees the employer considers to work full-time or who worked or were scheduled to work, on average, at least 40 hours per week in the two weeks preceding this leave. Full-time employees are entitled to a maximum of 4 hours of additional paid leave per vaccine injection. Part-time employees—defined as any employees that are not full-time—are entitled to the prorated amount of four hours per injection based on their normally scheduled work hours over the two-week period preceding the injection.

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Employees must be compensated at their normal rate of pay, calculated based on their highest average two-week pay during the period between January 1, 2021 through May 18, 2021.

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This paid leave is only available if employees exhaust all available supplemental paid sick leave mandated by the State of California, and must be provided in addition to any other job-protected paid leave employees are entitled to under California’s Healthy Workplace Healthy Family Act.

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Notification and Record-Keeping Requirements

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Covered employers are required to post a written notice, which will soon be created by the Los Angeles County Department of Consumer and Business Affairs, in a conspicuous place where employees work. Affected employers must also maintain records demonstrating compliance with this ordinance, including payroll records for each employee.

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Effective Time Period

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As an urgency ordinance, the above provisions took effect immediately. The ordinance applies retroactively to January 1, 2021 and will expire on August 31, 2021.

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Resources for California Employers

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Read the full text of the urgency ordinance here.

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Monitor the LA County Department of Consumer and Business Affair’s website for a posting of the required written notice associated with this ordinance here.

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Access information on Los Angeles County’s Unincorporated Areas here.

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Learn more about California’s recently expanded supplemental paid sick leave requirements here.

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If you have questions regarding the application of LA County’s newly mandated COVID-19 Vaccine Leave 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.

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On May 21, 2021, the California Department of Public Health (CDPH) released updated guidance for moving beyond the Blueprint for a Safer Economy, confirming the State’s June 15 reopening date. Amongst the most significant changes is the withdrawal of physical distancing and capacity limit requirements in all settings. California businesses will still be subject to Cal/OSHA’s Emergency Temporary Standards (expected to be revised on June 3, 2021), and potentially more stringent local requirements.

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Restrictions

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When the state progresses past the Blueprint on June 15, 2021, most COVID-19 restrictions imposed by the State of California will be lifted. Certain limitations will stay in place for “mega events,” as noted below.

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Capacity Limitations and Physical Distancing

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All physical distancing requirements and capacity limitations in both indoor and outdoor settings will be lifted, meaning that businesses across all sectors may choose to open at full capacity.

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Masking

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Individuals will be required to follow the updated CDPH Guidance for Face Coverings, which is aligned with CDC guidance and differs for vaccinated and unvaccinated individuals.

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Vaccine Verification and Negative Testing

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Although businesses (and local governments) may still impose their own requirements, California will not mandate vaccine verification or negative testing requirements for any activities (with the exception of some mega events).

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Traveling

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Although all restrictions on travel outside of California will ostensibly be lifted, the CDPH notes that travelers must adhere to CDC recommendations and CDPH travel restrictions.

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Exceptions for Indoor/Outdoor Mega Events

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Mega events are broadly defined as “planned public or social occasions that include over 5,000 participants or spectators indoors and over 10,000 outdoors.” Different restrictions will apply for indoor and outdoor mega events. Requirements and recommendations for negative testing/vaccine verification will be in place effective June 15, 2021 through October 1, 2021, with the option to extend them further.

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For indoor mega events, attendees will be required to verify their fully vaccinated status or pre-entry negative test results. For more information on acceptable verification methods and acceptable testing requirements, navigate to the CDPH guidance’s footnotes. For more information on who is considered “fully vaccinated” by the CDPH, click here.

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For outdoor mega events, verification of vaccination or pre-entry negative test results is strongly recommended, but not required, for all attendees. Outdoor venues will be required to make masks available for all attendees.

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In addition to general public health recommendations, all mega events must also adhere to notice/communications and masking requirements imposed by the CDPH. Information must be prominently placed on all communications, including the reservation and ticketing systems, to ensure guests are aware of the applicable recommendations and requirements set out by the CDPH.

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Potentially More Stringent Precautions

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Cal/OSHA’s Emergency Temporary Standards

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The California Occupational Safety & Health Standards Board is scheduled to release a proposal to update the COVID-19 Emergency Temporary Standards (ETS) on May 28, 2021, and will likely reconvene to vote on these revisions on June 3, 2021. In the meantime, employers are still subject to the November 2020 ETS.

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Local Laws

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Businesses may still be subject to more stringent restrictions posed by individual cities and counties, and should monitor local guidance.

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Resources for California Employers

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View the CDPH’s Beyond the Blueprint announcement here.

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View the CDPH’s Beyond the Blueprint Q&A here.

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As California’s targeted reopening date on June 15, 2021 fast approaches, employers should stay tuned for newly updated guidance from Cal/OSHA and other regulatory agencies. If you have questions regarding the CDPH or Cal/OSHA’s updated guidance, 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.

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As we approach our ninth anniversary on June 1st, the attorneys at the Maloney Firm would like to extend our warmest thanks to our clients and friends. Since Patrick Maloney established the firm in 2012, it has grown into an eight-lawyer boutique specializing in all facets of business disputes and litigation. We are immensely privileged to have provided successful representation to hundreds of clients, and look forward to continuing to offer significant legal expertise without significant cost.

The California Occupational Safety & Health Standards Board met May 20, 2021 to consider enacting sweeping updates to Cal/OSHA’s emergency temporary standards (“ETS”) for COVID-19 prevention. In spite of mounting pressure to either update or eliminate the ETS, which were originally enacted in November 2020, the board did not vote to act on the proposed changes. They are expected to reconvene on June 3, 2021 to further discuss revisions. For now, the most up-to-date guidance for employers from Cal/OSHA comes in alterations to the ETS’s FAQs. Learn more about these revisions, which primarily affect fully vaccinated workers, below.

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On May 3, 2021, the California Public Health Department (CPHD) released updated public health recommendations for fully vaccinated people. Significantly, the guidance states that fully vaccinated non-healthcare workers are no longer required to quarantine after a known workplace exposure to COVID-19 if they are asymptomatic. In response, the California Division of Occupational Safety and Health (Cal/OSHA) updated their recommendations for fully vaccinated employees in the workplace.

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CPHD Guidance: Eligibility Requirements and Provisions

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These recommendations from the CDPH only apply to non-healthcare workers that are fully vaccinated. For the purposes of this guidance, employees are considered “fully vaccinated” against COVID-19 two weeks or more after they have received either a single-dose vaccine or the second dose in a 2-dose series of a vaccine authorized for emergency use by the Food and Drug Administration. Currently, the only vaccines authorized for such use are the Pfizer-BioNTech, Moderna, and Johnson and Johnson/Janssen COVID-19 vaccines. The guidance will be updated as additional vaccines are approved.

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Under these updated recommendations, eligible employees that are exposed to the COVID-19 virus in the workplace do not need to quarantine if they are asymptomatic. The CDPH emphasizes that employers subject to Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (ETS) must still ensure that all employees are following applicable face covering and testing requirements.

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Cal/OSHA: Updates to Emergency Temporary Standards FAQs

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On May 5, 2021, Cal/OSHA updated their ETS FAQs to reflect this change. Under the ETS, employers must still exclude fully vaccinated employees that “are COVID-19 cases or have had a COVID-19 exposure and exhibit COVID-19 symptoms” from the workplace. However, fully vaccinated, non-healthcare employees who do not develop symptoms of COVID-19 after a known exposure are no longer required to quarantine.

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The FAQs have also been updated to reflect that, when an employer learns (in a non-outbreak setting) that one or more of their employees was exposed to COVID-19 in the workplace, the employer must:

“exclude from the workplace employees who test positive for COVID-19, and exclude employees with COVID-19 exposure unless they are fully vaccinated and do not show any symptoms of COVID-19, and follow the requirements for preserving their pay and benefits.”

Resources for California Employers

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Access the CPHD’s updated recommendations here.

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Access Cal/OSHA’s updated COVID-19 Emergency Temporary Standards FAQs here.

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As California’s targeted reopening date on June 15, 2021 fast approaches, employers should stay tuned for newly updated guidance from Cal/OSHA and other regulatory agencies. If you have questions regarding the CDPH or Cal/OSHA’s updated guidance, 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.

On May 10, 2021, the United States Department of Health and Human Services (HHS) announced that the anti-discrimination provisions in Section 1557 of the Patient Protection and Affordable Care Act (Section 1557) cover discrimination on the bases of sexual orientation and gender identity. Learn more about what this updated guidance means for California employers below.

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Background and Enforcement

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Section 1557 prohibits discrimination on the grounds of race, color, national origin, sex, age, and disability in certain health programs and activities that receive federal funding. As of May 10, 2021, the HHS now interprets and enforces Section 1557’s ban on sex discrimination to include discrimination on the bases of gender identity and sexual orientation. The HHS’s Office for Civil Rights (OCR), which enforces Section 1557, has jurisdiction over any health program or activity that receives federal financial assistance from the HHS, or is administered by HHS or any entity established under Title I of the Affordable Care Act.

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This announcement reverses a policy enacted by the previous administration, which rolled back anti-discrimination protections in healthcare for transgender individuals, and is part of a larger federal initiative to “fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation.” In January, President Biden released an Executive Order instructing federal agencies to interpret civil rights laws that prohibit sex discrimination to encompass discrimination on the bases of gender identity and sexual orientation. The Order codified and extended the 2020 verdict in Bostock v. Clayton County, in which the U.S. Supreme Court ruled that employers who terminate a worker for identifying as gay or transgender violate Title VII’s prohibition on sex discrimination. Learn more about that ruling here.

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Implications for California Employers

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Employers—particularly those who receive or whose employee health plans receive HHS funding—should review their plans to ensure that they are in compliance with the HHS’s newly interpreted anti-discrimination policies.

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Access the HHS’s Notification of Interpretation and Enforcement of Section 1557 here.

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Access a summary of Section 1557 of the Patient Protection and Affordable Care Act here.

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Learn more about President Biden’s Executive Order here.

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If you have questions regarding the application of the HHS’s updated guidance 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.

On April 16, 2021, Governor Newsom signed Senate Bill (SB) 93, which requires employers in the hospitality industry to offer employees laid off due to the COVID-19 pandemic preferential hiring. As a budget bill, SB 93’s provisions take effect immediately. The bill’s provisions will expire on December 31, 2024.

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Covered Employers

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This ordinance applies specifically to employers in the following hospitality-related industries:

• Hotels
• Private Clubs
• Event Centers
• Airport Hospitality Operations
• Airport Service Providers
• Building Services (including janitorial, building maintenance and security services) provided to office, retail and other commercial buildings

Significantly, SB 93’s provisions apply when an employer relocates within California, and to successor employers when there has been a change in ownership or control.

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Covered Employees and Provisions

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The bill requires covered employers to offer qualified laid-off employees vacant positions based on a preference system. Laid-off employees are considered qualified for a position if they held the same or a similar position at the time of the layoff. Under SB 93, a laid-off employee is defined as any employee who:

• was employed by the employer for 6 months or more in the 12 months preceding January 1, 2020, and
• was most recently separated from active service due to a reason related to the COVID-19 pandemic, including a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, nondisciplinary reason related to the COVID-19 pandemic.

Covered employees must be offered reemployment in order of seniority with the employer, and must be given 5 business days to respond to offers of reemployment.

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Employers are prohibited from refusing to employ, terminating, reducing compensation, or taking other adverse action against any laid-off employee for seeking to enforce their rights under these provisions.

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Record-Keeping and Enforcement

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All positions that become available after April 16, 2021 must be offered to qualified laid-off employees. Employers must offer a qualifying employee reemployment within 5 days of establishing a relevant position. This offer must be delivered in writing by hand or home delivery, and by email and text. Employers that do not offer a laid-off employee reemployment on the grounds of lack of qualifications, and hire someone other than a laid-off employee, must provide the laid-off employee written notice within 30 days detailing the reasons for the decision and the length of service of the employee hired instead.

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Employers are also required to retain records that enable them to contact laid-off employees when positions become available, including:

• the employee’s full legal name
• the employee’s job classification at the time of separation from employment
• the employee’s date of hire
• the employee’s last known address of residence, email address, and telephone number
• a copy of the written notices regarding the layoff provided to the employee
• all records of communications between the employer and the employee concerning offers of employment made to the employee under this bill.

The Division of Labor Standards Enforcement (DLSE) has sole jurisdiction to enforce SB 93. Laid-off employees may file a complaint with the DLSE for violations of the provisions of this bill, and employers may face civil penalties for noncompliance.

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Resources for California Employers

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View the full text of Senate Bill 93 here.

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Access the DLSE’s website here.

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If you have questions regarding the application of SB 93 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.

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“You’ve got to know when to hold ’em, know when to fold ’em,”¹ and know when to call a technology consultant: Comment 1 to Cal. Rules of Professional Conduct Rule 1.1 now requires all lawyers to keep abreast of technological resources and risks.

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By Carl I. S. Mueller and Colin Dunn

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Access a PDF version of this article here.

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As of March 22, 2021, the California Supreme Court’s alteration to Rule 1.1 of the California Rules of Professional Conduct (“CRPC”) went into effect. The change does not alter the text of the rule, but rather adds the following language as “Comment 1” to the rule:

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The duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.

For those who are unfamiliar, CRPC Rule 1.1 sets out the duty of competence for all attorneys in their representation of clients. It requires that “[a] lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” Id. at 1.1(a). Further, if a lawyer lacks competence in a subject matter necessary for the representation of a claim, the lawyer must either personally gain competence in that subject matter, associate in another lawyer with competence, or refer the case to another lawyer that is competent. Id. 1.1(b).

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This change clarifies the advice previously set out in the California State Bar’s Standing Committee on Professional Responsibility’s Formal Opinion No. 2015-193, which advised counsel to “associate with or consult technical consultants” to become competent in the requirements of e-discovery and related issues. Some of those issues include, at least:

• initially assess e-discovery needs and issues, if any;
• implement/cause to implement appropriate ESI preservation procedures;
• analyze and understand a client’s ESI systems and storage;
• advise the client on available options for collection and preservation of ESI;
• identify custodians of potentially relevant ESI;
• engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
• perform data searches;
• collect responsive ESI in a manner that preserves the integrity of that ESI; and
• produce responsive non-privileged ESI in a recognized and appropriate manner.

The language of the newly revised Comment 1 to CRPC 1.1 extends the duty of competence beyond e-discovery issues to apply broadly to any “benefits and risks associated with relevant technology.” However, the intersection between litigators and this new comment to the rule will most commonly crop up around e-discovery issues, especially those related to the e-discovery services and ESI searches attorneys recommend, or fail to recommend, to their clients.

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As such, in order to meet the minimum ethical requirements of competence, attorneys who are unfamiliar with those areas of e-discovery highlighted in Formal Opinion No. 2015-193, addressed above, should find a technical consultant to rely upon for electronic discovery matters.  Just as clients rely upon their attorneys to keep abreast of recent developments in the law, attorneys should clearly communicate with their technical consultants to keep pace with new innovations and developments that apply to their practices.

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As no attorney or technical consultant can be omniscient and all-knowing in a constantly evolving world of technology, it is important that a consultant has their own stable of referral sources, or certified professionals, they can engage to gain access to information on the technological issues facing their clients.

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For instance, in the case of e-discovery, there are 2 important decisions an attorney must make, in collaboration with their technical consultant, to ensure the proper handling of the ESI at the onset of any new litigation:

• 1. Computer Forensic Imaging: After the sources of relevant ESI have been determined, it is important to engage the services of a certified forensics expert to ensure the defensibility of the collected data.  If opposing counsel disputes the manner of collection, the properly certified expert can then transition into a role in which they can testify to the technology and methods they used in the course of their computer forensic collection.  While this rarely occurs in the discovery phase of litigation, it is an investment in knowing the foundation of your discovery process is on solid footing.
• 2. Document Review Platform: Once the relevant data has been collected, it is important to work with the technical consultant to choose the appropriate review platform.  There are a number of platforms that are no longer “cost prohibitive” to engage for any size of law firm.  These innovative platforms arm firms with the technology they need to compete with the larger law firms that are already leveraging the review technology in the legal market. 

These 2 steps will ensure that the litigator is in a proper strategic position to 1) review their client’s data as efficiently as possible and 2) more than likely gain a strategic advantage over opposing counsel in terms of getting a better picture of the facts of the case.  Savvy litigators can then decide how best to direct the course of case, and potentially save money on attorneys’ fees.

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After resolving the above issues, the technical experts can engage their team of project managers to help facilitate the filtering/culling of the data prior to the review team needing to actually review documents.   In addition, some of the best platforms have artificial intelligence built in, which will allow the review teams to train their database to help find responsive documents and, thus, speed up their review process.

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In sum, the new Comment 1 to CRPC 1.1 spells out that attorneys must ensure that they keep abreast of technological issues that face their clients. For litigators, that likely means developing and maintaining a relationship with a technology consultant that at least has an understanding of the technology options and risks facing your clients, including available e-discovery tools, who can advise on how and when to access those tools. While there are many other areas of technology that will fall within the scope of CRPC 1.1, e-discovery is a good place for a litigator to start.

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Carl I. S. Mueller is an attorney with The Maloney Firm, APC, and his practice areas include all forms of attorney-client disputes, such as claims against attorney for breaches of fiduciary duties and legal malpractice.

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Colin Dunn is a senior discovery Consultant at iDiscover, which provides consulting services and e-discovery solutions for attorneys, including their proprietary e-discovery platform, Lumix.

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Upcoming MCLE Webinar: Attorney Competence in Technology

Learn about best practices for e-discovery in litigation while fulfilling your duty of competency under CRPC 1.1.

Register at this Eventbrite link.

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¹ “The Gambler,” Written by Don Schlitz, performed by Kenny Rogers.

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

The California Supreme Court’s calendar is unpredictable, but there are a couple of cases that bear watching for California employers in 2021. Both of these cases are fully briefed and are awaiting their time for oral argument in front of the California Supreme Court. Both have implications on the premium wages that employers must pay when employees do not receive a compliant meal or rest break.

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Naranjo v. Spectrum Security Services, S258966

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In this case, employees experienced a meal and/or rest break violation, but no premium wage was paid as a penalty. The Court is deciding if an employee is owed derivative penalties flowing from the failure to pay a premium wage.  One argument routinely made in wage and hour cases is that the failure to pay premiums for meal or rest break violations renders the wage statement inaccurate.  Employees would then be entitled to additional penalties when their wage statement is inaccurate. Similarly, an argument is made that any unpaid premium wages  subject the employer to a penalty for failing to pay all wages upon termination of employment.

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Employers, on the other hand, argue that the wage statement is accurate, as it shows what was actually paid to the employee. They also argue that there is usually a good faith dispute as to whether premium wages were actually owed, thus they could not possibly put this information on a wage statement.

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Additionally, attorneys for employees argue that, upon the end of employment, as a result of unpaid meal or rest break premiums, the employee has not been paid in full.  Thus, additional “waiting time penalties” are owed to employees who do not receive their final check in a timely fashion upon the end of employment, whether by termination or resignation. 

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Plaintiffs’ attorneys will surely be hoping that failing to pay a premium wage leads to these derivative penalties. Employers will hope that the court will not punish them for what is potentially a good faith dispute as to whether or not a premium wage is even owed. This case bears watching as a single violation may end up being worth a far more significant amount in damages.

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Ferra v. Loews Hollywood Hotel, S259172

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The primary issue in this case centers around determining how to properly calculate premium wages when an employee does not receive a compliant meal or rest break. Attorneys for the employer argued that any premium wage due should be calculated at the employee’s base rate of pay, without additional compensation built in. Unlike overtime, they reasoned that the premium wage for a missed break is not additional compensation for hours worked, so it should not be treated like overtime. The employees’ attorneys argued that meal and break premiums should be calculated the same way as the regular rate in the context of calculating overtime.

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In general, before calculating overtime, an employer must determine the employee’s regular rate. The regular rate of pay includes hourly earnings, salary, piecework earnings, flat sum bonuses, commissions, and any other non-discretionary income. As an example, if an employer gives a $100 bonus for working on the weekend, that has to be included in the regular rate, because that bonus would be additional wages earned by the employee for their work. Once the additional earnings are factored in to calculate the regular rate, employees earning overtime wages receive 1.5x or 2x that rate, depending on the number of hours worked that day or week.

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On the other hand, when a bonus is purely discretionary, those additional earnings do not have to be factored in to find the regular rate. Calculating premium wages in the same fashion would lead to higher premium wages owed when an employee does not receive a compliant meal or rest break.

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The Appellate Court agreed with the employer’s attorneys and found a distinction between the terms “regular rate of pay” and “regular rate of compensation.” This distinction meant that employees receive their base hourly rate for any meal/rest break premiums, absent any additional non-discretionary income.

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The California Supreme Court will clarify exactly what an employer must account for when it does pay a premium wage for a meal or rest break violation. Both sides have reasonable arguments, and while the going rate for premium wages may go up, this ruling will at least provide clarity for everyone involved.

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What Can Employers Do?

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Given that these cases have the potential to increase exposure for meal and rest break violations, employers should ensure they have policies and procedures in place to prevent violations and, when appropriate, pay the applicable meal or break premium to the employee. Providing proper meal and rest breaks to employees ensures that they are properly rested and serves as the best defense to such claims. Employers should also be mindful that if they include any non-discretionary bonuses when paying hourly employees, these may need to be included when calculating premiums owed. While employers likely are relying on the current state of the law in good faith, they should be prepared if the California Supreme Court reverses course.

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About the Author:

Nicholas Grether is an employment attorney in the Employment Law Department at The Maloney Firm, APC. If you have questions regarding this article, contact Nicholas Grether at ngrether@maloneyfirm.com.

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

In certain parts of the United States, including California, there are increasing numbers of lawsuits against business owners claiming that the businesses’ websites are not accessible to those with disabilities, and therefore violate the Americans with Disabilities Act (“ADA”). A recent decision by the 11^th Circuit of the United States Court of Appeals, Gil v. Winn-Dixie Stores, Inc.,____ F.3d _____ (11^th Cir. 2021), 2021 WL 1289906, held that “public accommodations are limited to actual, physical places,” in finding that the plaintiff, Juan Carlos Gil, a man with a visual disability, could not bring a claim against Winn-Dixie Stores, Inc. under the ADA on the grounds that Winn-Dixie’s website was not compatible with Gil’s screen-reader as a matter of law. To summarize, the Court considered two possible legal theories of liability and rejected both.

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First, the Court considered Gil’s claims that Winn-Dixie’s website was “a place of public accommodation in and of itself,” and therefore must comply with the requirements of the ADA. In making this inquiry, the Court considered the definition of “public accommodation” within the language of the ADA. Reviewing the examples of “public accommodations” therein, the Court found that “[n]o intangible places or spaces, such as websites, are listed,” and the Court would therefore not expand the language of the statute to include websites.

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Second, the Court considered whether Winn-Dixie’s website could otherwise violate the ADA, even if not a public accommodation. The ADA disallows “‘intangible barriers,’ that prevent an individual from fully and equally enjoying the goods, services, privileges, or advantages of a place of public accommodation.”  In short, the Court found Gil still could not make a case against Winn-Dixie because he admitted that his inability to use Winn-Dixie’s website did not result in a barrier to actually obtaining the services provided at Winn-Dixie’s brick-and-mortar locations. Notably, this determination rested on the fact that Winn-Dixie offered goods for sale only at its brick-and-mortar locations, and all services it offered via its website could still be obtained at its physical locations.

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However, the decision does not completely foreclose the possibility of website liability under the ADA for those within the jurisdiction of the 11^th Circuit. The decision specifically states that it rests on the premise that Winn-Dixie’s website does not allow the ability to make purchases, and no services are available through the Winn-Dixie website that are not otherwise available at Winn-Dixie’s stores. As such, ADA liability may still exist for those companies that offer sales or services through their websites. Considering the high number of companies that now offer such services as a result of COVID-19 limitations, ADA litigation could very well continue in the 11^th Circuit.

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Closer to home, the Gil v. Winn-Dixie Stores, Inc. decision will not directly affect California ADA litigation in the near term. California has explicitly adopted the “nexus” test as set out by the 9^th Circuit in Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9^th Cir. 2019), which will remain the law of the land in California until that standard is explicitly rejected by the California Supreme Court or the United States Supreme Court. See Thurston v. Midvale Corp, 39 Cal.App.5th 634 (2019). Under the same, Californians face liability under the ADA and Unruh Act for websites that are inaccessible to those with disabilities.

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For those keeping track, the current split for United States Appellate Circuits’ rulings for whether websites can create liability under the ADA are as follows: The Third and Eleventh Circuit do not allow for liability for website accessibility under the ADA. As an intermediate position, the Sixth and Ninth Circuits have found that a “nexus” must exist between the website and a physical place of public accommodation for an application of the ADA to occur. In contrast, the First, Second, and Seventh Circuits have created the most expansive application of the ADA, finding that there is no requirement for a physical location for the application of the ADA. In short, these varying rules, clearly discussed in the Gil decision, beg for clarification by the U.S. Supreme Court. Currently, a national business provider is left to deal with different restrictions in different jurisdictions.

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Litigators and business owners will be watching this case closely to see if this is the one that gets considered by the Supreme Court for the purposes of issuing a nationwide rule that will allow consistent application of the ADA (and by extension, California’s Unruh Act) to website accessibility.

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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.

On April 6, 2021, Governor Gavin Newsom announced that if California is able to maintain stable and low hospitalization rates and a sufficient vaccine supply, the state’s economy will fully reopen on June 15, 2021.

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While risk reduction measures such as contact-tracing, vaccination programs, and the statewide mask mandate will remain in place, California is now scheduled to move past the tiered reopening system under the Blueprint for a Safer Economy program to fully reopen the economy.

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California and COVID-19: Conditions for Reopening

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As of April 6, 2021, over 20 million COVID-19 vaccine doses have been administered in California, and over 30% of the state’s population is at least partially inoculated.¹ As the state’s immunization rates remain far below the estimated thresholds for herd immunity, all industries will be permitted to reopen on June 15, 2021 with common sense risk reduction measures such as vaccinations and required masking.

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According to the California Department of Public Health (CDPH), the state’s reopening schedule hinges on the following two conditions:

• 1. Equitable vaccine availability: If vaccine supply is sufficient for Californians 16 years or older who wish to be inoculated, and
• 2. Consistently low burden of disease: Hospitalizations are stable and low, and specifically, hospitalizations among fully vaccinated individuals are low.

The CDPH notes that these criteria will only be met if vaccination rates stay high, the vaccines remain effective against variants, and individuals continue taking precautions such as masking. California will continue monitoring hospitalization and vaccine access rates, as well as updated information on vaccine efficacy against variants, and, if necessary, adjust the June 15 reopening date.

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What will a “full reopening” of California’s economy look like?

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As the state’s economy fully reopens, “common-sense” public health policies, such as vaccination, testing, contact tracing, and required masking programs, will remain in effect. All sectors listed by California’s Blueprint for a Safer Economy program will be able to return to normal operations, in compliance with Cal/OSHA’s emergency standards and other applicable statewide guidelines. Public health restrictions, such as testing, masking, and testing or vaccination verification requirements for large, high-risk events such as concerts and festivals, will still apply.

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Workplaces

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Employers should promote policies in the workplace that reduce the risk of COVID-19 transmission, such as improving indoor ventilation and requiring mask wearing in indoor and other high-risk settings. Additionally, when it is possible without impacting business operations, employers are encouraged to allow remote work.

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Conventions

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Conventions will be limited to 5,000 attendees until October 1, 2021, unless the testing or vaccination status is verified for all attendees. International convention attendees may only attend if they are fully vaccinated.

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Educational Institutions

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The CDPH indicates that schools and higher education institutions should conduct full-time, in person instruction, in compliance with Cal/OSHA’s emergency temporary standards and other public health guidelines.

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Travelers

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Travelers and Californians in general will remain subject to CPDH and CDC travel restrictions.

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California will also be required to continue maintaining and updating its vaccination, testing, monitoring, hospital, and other public health and medical infrastructure.

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Resources for California Employers

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Find out more about Cal/OSHA’s temporary COVID-19 prevention standards here and the California DFEH’s COVID-19 related guidance here, and stay tuned for updated guidance from these and other California statewide regulatory organizations.

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Find Governor Newsom’s full press release here.

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Find the California Department of Public Health’s announcement here.

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If you have questions regarding the upcoming reopening of California’s economy, 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.

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^[1] https://covid19.ca.gov/vaccines/#California-vaccines-dashboard