By Vicky Boyd
Since the coronavirus pandemic hit the state in March, state and federal regulations governing employee health and safety as well as COVID-related leave have been coming fast and furiously with little end in sight.
San Joaquin Farm Bureau Second Vice President Jake Samuel said the continuing stream of regulations has overwhelmed him and has added to his expenses.
“We have five full-time guys on the ranch and another 10 during the season when we’re in full swing, and we have over 30 in the cherry plant,” said Samuel, who grows cherries and walnuts with his family near Linden and also is involved in their dried cherry processing plant. “I’ve had to hire somebody with HR experience to keep up with everything I used to do myself. It’s changing every three to four months, and there are more changes to come. It’s never ending, and it’s very difficult to keep up with day in and day out.”
Fortunately, Samuel said, he had the employee base that allowed him to add an HR specialist to handle the ever-increasing compliance chores.
“It’s going to cost you money,” he said. “Our time is worth something. If you hire somebody, it’s worth something. We can’t raise the prices on cherries or ask another $1 a pound on walnuts. That’s just the world we live in.”
Bryan Little, chief operating offer of Farm Employers Labor Service, acknowledged that trying to comply with the myriad rules and regulations can be daunting, especially when some are contradictory to one another.
“You’re asking employers to parse legal language as if they’re lawyers, and in most cases, they’re not,” he said. “What we’ve been telling the agencies is you’re already piling a lot of stuff on people and then you just pile more on them.”
To help Farm Bureau members understand the ever-changing worker safety landscape, FELS continues to hold webinars. Most recently, an online presentation lasted more than 2½ hours, attracted more than 250 attendees and spurred more than 50 questions.
As FELS has done in the past, the California Farm Bureau Federation affiliate included legal experts to address some of the rules and regulations. The Zoom presentation was designed to provide a general overview and was not to be construed as legal advice, said Taylor Arnold, a presenter and attorney with Hanna Brophy. For specific questions, he advised attendees to contact a labor attorney.
Among the health-related regulations the presenters touched on were:
- Senate Bill 1159, which became effective immediately after the governor signed it Sept. 17, 2020. Under the law, workers are presumed to have been injured by the coronavirus in the course of employment and can apply for and receive workers’ compensation. But first workers must exhaust their paid sick leave before receiving benefits. Employers can contest the presumption that the infection was workplace related within 45 days of diagnosis.
The bill applies to workplaces that experience specified levels of positive coronavirus infection and to employers with five or more workers. For employers with fewer than 100 employees, an outbreak consists of at least four COVID-positive workers. For employers with more than 100 workers, the threshold is 4% infection. The bill remains in effect until Jan. 1, 2023.
- SB 1383, which amended the California Family Rights Act to apply to much smaller private employers with five or more workers compared to the previous threshold of 50 employees. It also removed the requirement that those 50 employees work within 75 miles of the worksite to qualify, said Seth Mehrten, an attorney with Fresno-based Barsamian & Moody.
In addition, SB 1383 expands the list of family members for whom a worker can take time off to care to include siblings, grandparents, grandchildren, children of domestic partners and adult children — whether or not they are still dependents.
Previously, CFRA only granted leave to employees to care for themselves or a spouse, registered domestic partner, minor son or daughter, or parent with a serious health condition.
- Assembly Bill 685, which requires employers provide written notification to all employees at a worksite when an employee tests positive or there is potential COVID-19 exposure. But under the Health Insurance Portability and Accountability Act, you cannot share any personal or identifying information about the ill workers except to certain local, state and federal health departments.
As part of the notification, the employer must inform employees of COVID-19-related benefits and safety measures that will be undertaken at the worksite because of the potential exposure.
In addition, employers are required to notify local public health agencies of all workplace outbreaks, defined as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.
AB 685 also gives Cal-OSHA authority to shut down an entire worksite if it deems an imminent hazard related to COVID-19.
- The Federal Family First Coronavirus Relief Act, which is for employers with 500 or fewer full- and part-time employees nationwide. It provides up to two weeks of paid leave to workers who test positive, must quarantine because of possible COVID exposure, are caring for an individual under quarantine or are caring for a child where schools or childcare has closed.
The legislation was scheduled to expire Dec. 31, 2020, unless the government stepped in to extend it.
California has a similar supplemental COVID paid sick leave program except it covers employers with more than 500 workers. That, too, was expected to expire Dec. 31, but Little said Gov. Gavin Newsom could extend it and possibly expand it to also cover employers with 500 or fewer workers.
“An executive order would not be very surprising, based on the governor’s past behavior,” Little said.
- COVID-19 Emergency Temporary Standards, which the California Occupational Safety and Health Agency adopted Nov. 30, 2020. It expires Oct. 1, 2021.
The National Retail Federation, along with a group of small retailers, has filed a lawsuit against Cal-OSHA, saying the agency didn’t follow due process and overstepped its authority by requiring free testing and paid leave. That is the domain of the Department of Labor Standards Enforcement and the division of Workers’ Compensation, the groups said in the suit.
Although Little said he has yet to finish reviewing all of the requirements contained in the standards, he said they appear to be similar to the written injury and illness prevention plan already required of employers.
Cal-OSHA has a template on its website for employers to download to create a customized disease-prevention plan based on their individual workplace.
The standards include extensive requirements for employee training, disease prevention and sanitation, employee screening, employee testing, record keeping and reporting. If, for example, one employee tests positive, the standards require employers to offer free testing to all workers who may have been exposed and paid leave for those infected or exposed to the coronavirus.
The requirements change during an outbreak, defined in the standards as three or more positives during a 14-day period. If there is a major outbreak, defined as 20 or more positive cases during a 30-day period, then the employer must also provide twice weekly testing until no positives are returned during a 14-day period.
In addition, the standards require extensive record keeping, Little said. Much like Cal-OSHA has stepped up enforcement of heat illness prevention rules, he said he expected the agency to beef up enforcement of the COVID standards.
Although they are temporary, Little said he expected Cal-OSHA to eventually develop a broader infectious disease standard.
- Cal-OSHA Wildlife Smoke Permanent Regulations, which require employers to provide respiratory protection, such as N95 masks, when the Air Quality Index hits 151 or greater for PM 2.5 particulate matter. It also requires employers provide NIOSH-approved particulate respirators when the AQI reaches 500 or more for PM 2.5.
Little said he wouldn’t be surprised if Cal-OSHA in the coming years didn’t reduce the smoke PM 2.5 thresholds to 100 AQI for N95 masks and 300 AQI for industrial respirators.
- CalSavers opt-out payroll retirement savings, which requires all employers to offer an IRS-qualified retirement savings plan. Employees must opt out to not participate in this state-run and state-funded program, which is based on individual retirement accounts.
Employers are responsible for providing employees information, setting up payroll deductions and keeping records of employee contributions.
The program also requires mandatory registration for employers not offering a qualified retirement savings plan. Those with more than 100 employees had to register by Sept. 30, 2020. Those with 50 to 100 employees must register by June 30, and those with five or more workers must register by June 30, 2022.
The California Farm Bureau Federation and Nationwide Insurance have partnered to offer a qualified retirement savings program for county Farm Bureau member-employers that would exempt them from having to register.