Author: Stephanie Hill

On November 19, 2020, the California Occupational Safety and Health Standards Board (Cal/OSHA) unanimously adopted emergency temporary standards to protect workers from workplace hazards related to COVID-19.

When do the emergency standards go into effect?
The newly adopted emergency standards will go into effect on November 30, 2020. Employers should review their COVID-19 prevention plans and ensure that they are in compliance with the emergency standards. Prior to the adoption of these emergency standards, Cal/OSHA had primarily recommended that employers follow its general and industry-specific guidance in order to minimize their employees’ risk of exposure to COVID-19 in the workplace. However, the new emergency standards will be enforceable against most California employers. Non-compliance with these regulations may result in employers having to pay fines in accordance with Cal/OSHA’s penalty structure.

Who does it apply to?
All employees and places of employment, with the following exceptions:

1. Workplaces where there is only one employee who does not have contact with other persons
2. Employees working from home
3. Employees when covered by Cal/OSHA’s Aerosol Transmissible Diseases standard in Section 5199, which include:
   • Employees who work in certain health care facilities, such as:
     • Hospitals
     • Clinics, medical offices, and other outpatient medical facilities
     • Long term health care facilities and hospices
   • Employees who provide certain services, such as:
     • Police services, provided during transport or detention of persons that have, or suspected to have, contracted COVID-19
     • Police services provided in conjunction with health care or public health operations
     • Paramedic and emergency medical services, including those provided by firefighters and other emergency responders
     • Medical transport and medical outreach services
   • Employees that work in any of the following:
     • Correctional facilities and other facilities that house inmates or detainees
     • Homeless shelters
     • Drug treatment programs

What do the new emergency standards require?
Under the new regulations, employers must establish, implement, and maintain an effective written COVID-19 Prevention Plan that protects employees and addresses the following:

• Accessibility of COVID-19 Prevention Plan – making the COVID-19 Prevention Plan accessible to employees and employee representatives.
• System for communicating information to employees about COVID-19 prevention procedures, testing, symptoms and illnesses, including a system for employees to report exposures without fear of retaliation.
• Identification and evaluation of hazards – screening employees for symptoms, identifying workplace conditions and practices that could result in potential exposure.
• Investigating and responding to cases in the workplace – responding immediately to potential exposures by following steps to determine who may have been exposed, providing notice within one business day about potential exposures, and offering testing to workers who may have been exposed.
• Correcting COVID-19 hazards – including correcting unsafe conditions and work practices as well as providing effective training and instruction.
• Physical distancing – implementing procedures to ensure workers stay at least six feet apart from other people if possible.
• Face coverings – providing free face coverings and ensuring they are worn.
• Adopting site-specific strategies such as changes to the workplace and work schedules and providing personal protective equipment to reduce exposure to the virus.
• Removal of COVID-19 exposed workers and COVID-19 positive workers from the workplace with measures to protect pay and benefits.
  • This includes paying employees that need to quarantine for 14 days.
• Return to work criteria for COVID-19 cases – employees recovering from COVID-19 may not return to work until:
  • At least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications;
  • COVID-19 symptoms have improved; and
  • At least 10 days have passed since COVID-19 symptoms first appeared
• Return to work criteria for exposed employees – exposed employees are required to quarantine for 14 days
• Negative COVID-19 test – employers are restricted from requiring a negative test prior to returning employees to the workplace.
• Recording requirements – recording positive COVID-19 case and illness recording requirements, such as:
  • Reporting information about COVID-19 cases in the workplace to the local health department when required by law
  • Reporting to Cal-OSHA any COVID-19 related “serious illness or death” of an employee occurring in a place of employment or in connection with any employment
    • “Serious injury or illness” here means any positive COVID-19 case occurring in the workplace or in connection with any employment that requires inpatient hospitalization
  • Keeping records of and tracking all COVID-19 cases with the employee’s name, contact information, occupation, location where the employee worked, the date of the last day at the workplace, and the date of a positive COVID-19 test. Medical information must be kept confidential in accordance with applicable law.
• Requirements for testing and notifying public health departments of “workplace outbreaks” (three or more cases in a workplace in a 14-day period) and “major outbreaks” (20 or more cases within a 30-day period).
  • Employers must provide COVID-19 testing to all employees if there is a “workplace outbreak” (defined as three or more COVID-19 cases in an exposed workplace within a 14-day period)
• Infection prevention – specific requirements for infection prevention in employer-provided housing and transportation to and from work.

Next Steps for Employers
The information above is not exhaustive of the entire new emergency temporary standards. Employers are strongly encouraged to consult with their attorneys to obtain and review the complete list of new requirements and the description of all covered employees and places of employment. Employers should begin by carefully reviewing any COVID-19 prevention plans they currently have in place.

In a 5-4 decision just before midnight on Thanksgiving Eve, the newly configured U.S. Supreme Court issued its ruling in Roman Catholic Diocese v. Cuomo which stays the enforcement of Governor Cuomo’s health and safety restrictions on indoor worship services in the State of New York that capped attendance at 10 or 25 persons in designated geographic zones. In short, the ruling now sets a higher bar in order for pandemic-related restrictions on worship services to survive constitutional First Amendment analysis.

Will California’s COVID-19 Limits on Religious Services Survive SCOTUS Review?
The Court’s ruling in Roman Catholic Diocese is a significant departure from the Court’s prior ruling in the South Bay United Pentecostal Church case where SCOTUS rejected a request to stay California’s restrictions on in-person worship services. While the limitations imposed by Governor Cuomo were much more restrictive than those imposed by Governor Newsom, this new decision clearly signals a less deferential attitude now that Justice Barrett has filled the late Justice Ginsburg’s seat leading to a new conservative Court configuration, and there can be little doubt that challenges to California’s restrictions will now be analyzed anew. It looks like we might not have to wait too long for this question to be answered because Pasadena-based Harvest Rock Church and its member churches recently filed with the U.S. Supreme Court an emergency request to stay enforcement of Governor Newsom’s restrictions on California’s indoor worship services. The SCOTUS decision in Roman Catholic Diocese can be found here and the Harvest Rock Church emergency application for injunctive relief can be found here.

Takeaway No. 1 in Roman Catholic Diocese Ruling – Traditional Constitutional Analysis 
In its opinion issued on November 25, 2020, the Supreme Court enjoined New York from enforcing its 10- or 25-person occupancy limits on indoor worship services, finding that the Roman Catholic Diocese and the separate Orthodox Jewish petitioners – Agudath Israel of America, Agudath Israel of Kew Garden Hills, Agudath Israel of Madison, Rabbi Yisroel Reisman, and Steven Saphirstein – are likely to prevail on their First Amendment challenges to the limitations placed on their religious practices. The Court’s decision looks to the traditional constitutional rubric for analyzing cases regarding religious freedom, citing Church of Lukumi v. Hialeah for the position that New York’s regulations are unlikely to pass constitutional muster because the regulations are not neutral laws of general application. Instead, the Court found the regulations single out houses of worship for especially harsh treatment. The per curiam decision did not go so far as to disavow the deferential standard of review set forth in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), for emergency health situations such as a pandemic, but its silence on this point and its reliance on Lukumi would appear to signify that the more lenient rational basis standard of Jacobson does not apply, at least when a First Amendment right is impacted.

Takeaway No. 2 in Roman Catholic Diocese Ruling – Comparable Secular Facilities
Another key aspect of the Court’s decision is the comparable secular facilities which the Court uses to adjudge the constitutionality of the restrictions on worship services. The Court’s per curiam opinion reasoned that businesses classified as essential such as liquor stores, big box retail, bike shops, grocery stores, acupuncture facilities, camp grounds, and some non-essential businesses such as certain manufacturing plants and transportation facilities are relevant comparators for worship services. Because these activities are allowed to operate without capacity limits, the harsher restrictions on worship services are neither neutral, nor of general application, and instead show a disparate treatment of religious activity. This is significant because courts that have upheld restrictions on indoor worship services have found that these essential service activities are not the correct comparators for worship services but instead have looked to secular communal gatherings such as concerts and theatrical performances. This highlights, once again, that the comparators a court uses when analyzing these restrictions are likely to be determinative as to the outcome of the case.

Takeaway No. 3 in Roman Catholic Diocese Ruling – Robust Factual Record 
This case also highlights the impact that a developed factual record is likely to have on the final outcome. The Roman Catholic Diocese had developed a robust factual record showing that it follows stringent health and safety measures and affirmatively claimed no incidences of COVID transmission. The church’s factual record detailed the Diocese’s rigorous protocols including having commissioned its own in-house COVID task force, enforcing CDC recommended guidelines including masks and social distancing, and going beyond the State’s safety protocols. As a practical pointer, this highlights the need to link restrictions on worship services to real world concerns and the need to offer empirical evidence that less restrictive safety protocols will not work and/or that a religious institution will not follow other safety protocols (such as mask wearing and social distancing). Now that we are more than eight months into the pandemic, it is fair to anticipate that the courts will require more closely tailored restrictions especially when First Amendment interests are at play.

What’s Next for California?
Coming on the heels of its decision in Roman Catholic Diocese, the Supreme Court is now also being asked in Harvest Rock Church v. Newsom to issue an emergency injunction staying the enforcement of California’s restrictions on indoor worship services. Once again, the church applicant asks the Court to find that Jacobson is not the correct standard and that under traditional constitutional analysis religious institutions are being disfavored because, among other reasons, essential services such as grocery and big box shopping are treated more favorably. The Harvest Rock Church petition also claims that Governor Newsom disregards his own enacted restrictions for favored secular activity such as joining his friends for a birthday celebration at the French Laundry restaurant and encouraging the George Floyd/BLM protests.

The Meyers Nave Shelter in Place litigation team is closely monitoring the Harvest Rock Church case and its potential to upend the current restrictions on in-person worship services in California. We will continue to provide Client Alert updates as the legal landscape unfolds.

The Meyers Nave Shelter in Place litigation team provides this important alert to an emergency application filed on November 12 with the U.S. Supreme Court by the Roman Catholic Diocese of Brooklyn seeking an injunction precluding enforcement of New York Governor Cuomo’s limitations on in-person religious services. The filing notes that the New York COVID-19 restriction caps church attendance at 10-25 patrons in designated geographic zones while not imposing similar numerical caps on other secular activities. A federal district court in New York and the U.S. Court of Appeals for the 2nd Circuit declined the Diocese’s attempts to block the limits, leading to the appeal to SCOTUS. The petition is available here and below are links to news articles regarding the views of Justice Alito and Justice Barrett on this issue.

• “COVID-19 Restrictions Are Suddenly in Peril at the Supreme Court,” Slate.com, Nov. 12, 2020
• “Alito raises religious liberty concerns about Covid restrictions and same-sex marriage ruling,” CNN.com, Nov. 13, 2020

How Has SCOTUS Ruled in Similar Cases?
The Supreme Court recently rejected similar challenges by religious groups in California (South Bay United Pentecostal Church v. Newsom) and Nevada (Calvary Chapel Dayton Valley v. Sisolak). In both cases, the decisions split 5-4 with Chief Justice John Roberts siding with the court’s four liberals. While the majority’s denial in Calvary Chapel was issued without an opinion, the dissenters issued detailed opinions. In South Bay United Pentecostal, Justices Ginsburg, Breyer, Kagan and Sotomayor voted to deny the injunction but did not write an opinion. Chief Justice Roberts concurred in denying the injunction and filed a two-page opinion. Justice Kavanaugh filed a three-page dissenting opinion, which was joined by Justices Thomas and Gorsuch. Justice Alito also dissented but did not write an opinion. Please click here for an important analysis of the interplay between the South Bay United Pentecostal and Calvary Chapel decisions.

Deference to Governments During Emergencies
In South Bay United Pentecostal, Chief Justice Roberts applied the principles of Jacobson v. Commonwealth of Massachusetts (197 U.S. 11 (1905), noting that the “precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” He focused on the “especially broad” latitude to be afforded to officials entrusted with protecting the health and safety of the people, particularly in times “fraught with medical and scientific uncertainties.” Those broad limits “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” However, it is also important to note that he stated the Order places “temporary” numerical restrictions on public gatherings to address the health emergency. Please click here for an analysis of the South Bay United Pentecostal decision.

Why We’re Watching SCOTUS Cases
Given the recent appointment of Justice Barrett and the new makeup of SCOTUS since the South Bay United Pentecostal ruling where Chief Justice Robert’s concurrence gave deference to public health officials grappling with areas fraught with medical and scientific uncertainties, this is a case that we are carefully watching. In Roman Catholic Diocese of Brooklyn v. Governor Cuomo, the Diocese has specifically asked the Supreme Court to examine the viability of Jacobson in public health emergencies when fundamental rights such as Free Exercise are at stake. We are making our way through the recently filed petition, evaluating the legal arguments and reviewing how this may impact cases in California. Governor Cuomo’s response to the Diocese’s emergency petition is due November 18 and we will continue to provide updates on this case and its impacts in California.

In a closely watched victory for counties, cities and public officials, on October 27 Judge Mendez of the U.S. District Court, Eastern District, granted the County of San Joaquin and the City of Lodi’s joint motion to dismiss in full, without leave to amend, a mega-gym’s challenge to COVID-19 related Public Health Orders that placed limits on its operations. In the hearing in Best Supplement et al. v. Newsom et al. (Case No. 20-cv-00965), the Court found as a threshold matter that plaintiffs had not identified any constitutionally protected right that was being infringed by the Public Health Orders. Moreover, the Court also found neither the law nor the circumstances of plaintiffs’ situation had changed since the Court’s prior order on May 22, 2020 which denied plaintiffs’ request for a TRO and a preliminary injunction based in part on not meeting the threshold to establish success on the merits.

No Constitutional Right to Workout
Plaintiffs, a mega-gym and its owner, alleged nine causes of action challenging COVID-19 Public Health Orders on the theory that the temporary restrictions placed on fitness facilities are unconstitutional infringements of their rights. The alleged constitutional violations included freedom of assembly, association and speech; equal protection and due process of the law; and 5th Amendment takings; among others. As explained by Meyers Nave Principal Deborah Fox (defense counsel for the County and the City) in a Daily Journal article covering the victory, there are “no fundamental or constitutional rights to exercise indoors, nor are there any First Amendment free speech protections to communicate with trainers or fellow gym patrons.” Plaintiffs’ claims about economic loss and other alleged business related injuries from the restrictions also did not form the basis for any constitutional cause of action.

Plaintiffs Failed Under Jacobson and Traditional Constitutional Analysis
The Court found that the deferential two-pronged test set forth in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) is the appropriate standard to apply in evaluating the constitutionality of the Public Health Orders at issue and that plaintiffs failed to state any claims under this standard. Jacobson has been continually recognized as the metric to evaluate the propriety of the public health orders during the COVID-19 pandemic. This two prong analysis examines:

• First Prong – The Court found that plaintiffs did not meet the first prong of the test by failing to allege new facts to show that the Public Health Orders lacked a real and substantial connection to protecting public health.
• Second Prong – The Court also found that plaintiffs failed to allege facts that satisfied the second prong of the Jacobson test as they did not identify any fundamental right at issue and did not demonstrate that there was a plain and palpable invasion of a clearly protected right.

The Court also held that even under traditional constitutional analysis of non-emergency situations the plaintiffs failed to state any viable claims as a matter of law. The ruling addressed each claim individually and explained how plaintiffs failed to state a claim on each of their nine causes of actions. As the judge stated “We’re up to the third amended complaint and you haven’t focused the case at all. Instead you continue to maintain a kitchen sink approach – ‘Let’s keep nine claims in there, throw everything at the judge and see if something sticks.’” The judge dismissed the entire case with prejudice, including all nine constitutional causes of action.

What’s Next?
The Court noted that the virus is a “serious and deathly challenge to our public health” and that the only way the government has thus far been able to reduce the spread of the virus is through public health orders limiting in-person activities. The Court also acknowledged the personal and economic hardships that may be caused by complying with the Public Health Orders and said those who do comply, including plaintiffs, should be commended for abiding by necessary temporary restrictions. However, the Court clearly and unequivocally found that the limitations placed on plaintiffs’ mega-gym by the Public Health Orders at issue did not form the basis for any viable constitutional challenge as a matter of law. Plaintiffs have indicated that they intend to appeal the Court’s October 27 ruling and judgment. The deadline for filing a notice of appeal is November 27, 2020.

A federal court of appeal has blocked President Donald Trump’s efforts to build a border wall using military funds and circumventing compliance with environmental laws and regulations. The Ninth Circuit ruled on October 9, 2020 that the Trump administration improperly ordered the diversion of $3.6 billion in defense funding for the construction of border wall projects in California, Arizona, New Mexico and Texas. The case is Sierra Club, et al. v. Trump, Ninth Circuit Case No. 19-17501.

In February 2019, Congress provided $1.375 billion to fund border wall construction – far less than the $5.7 billion requested by the President. President Trump subsequently issued a proclamation pursuant to the National Emergency Act (NEA), declaring that “a national emergency exists at the southern border” and that the use of the Armed Forces would be required. The NEA proclamation invoked emergency authority for construction of the border wall as a military project, using funds that were previously committed to military spending. The Trump administration sought to construct 175 miles of the proposed southern border wall without any environmental review under the National Environmental Protection Act (NEPA), permitting under the Clean Water Act, or consultation under the Endangered Species Act.

On two occasions, the U.S. Congress adopted resolutions to revoke the NEA proclamation. President Trump vetoed both of those resolutions. In September 2019, the Secretary of Defense announced that it was necessary to divert $3.6 billion from 128 military construction projects to fund 11 border wall projects. Twenty states and two environmental organizations sued to prevent any transfer of funds pursuant to the NEA proclamation. This case represents the first significant dispute over military spending under the NEA since its adoption in 1976.

Appellate Court’s Ruling on Standing
The court first reviewed the issue of “standing” to confirm that the plaintiffs were proper parties to challenge the border wall projects. To establish standing, plaintiffs must show that (1) they were injured by the NEA proclamation, (2) the injury is traceable to the defendant’s conduct, and (3) courts are empowered to address the injury. In this case, the fast-tracking of construction under the NEA gave rise to various environmental injuries as a basis for standing for both the states and the environmental organizations. The states would suffer injuries to their quasi-sovereign interests in enforcing their own environmental laws, including statutes protecting air and water quality and endangered species. For example, the court found that border wall construction could cause environmental harm to endangered species such as the jaguar, Quino Checkerspot butterfly, white-sided jackrabbit, and others located in environmentally sensitive areas in California, Arizona, New Mexico and Texas. States also had standing due to the economic impact of lost taxes and revenues from projects that were defunded for the border wall construction.

Appellate Court’s Ruling on Scope of President’s Authority under NEA
After finding that all plaintiffs had standing, the court ultimately ruled that the proclamation exceeded the President’s authority under the NEA. First, the border wall did not constitute military construction because border operations are conducted by the Department of Homeland Security, not the Department of Defense. Second, the Ninth Circuit found that the wall was not necessary to support related activities of the Armed Forces. The court rejected an argument that the Department of Defense had discretion to determine when construction was necessary to support the use of Armed Forces. The court also rejected the administration’s characterization of the border wall projects as a military installation. The opinion concluded that while “in times of national emergency we generally owe great deference to the decisions of the Executive,” the power to legislate for emergencies nonetheless belongs to Congress. Given the legislature’s decision to withhold border wall funding and two attempts to terminate the NEA proclamation, the court refused to allow the President to override the U.S. Congress. The Ninth Circuit also upheld the permanent injunction granted to the environmental organizations, including the Sierra Club.

U.S. Supreme Court’s Review Stays Injunction
Despite the strong language in the Court of Appeal’s ruling, the U.S. Supreme Court previously stayed, (i.e., postponed) enforcement of the injunction against border wall construction. As a result, construction of the border wall has been allowed to proceed. On October 19, 2020, the Supreme Court granted review of cases related to the funding of the border wall construction, therefore the legality of the transfer of military funds and related construction will be before the U.S. Supreme Court in the coming term.

Impact on Use of Emergency Declarations to Circumvent Environmental Laws
The Ninth Circuit’s decision on the border wall funding – and subsequent Supreme Court ruling – could have far-reaching implications. Beyond the specific authority of the President under the NEA, the appellate opinion raises questions about similar efforts by the Trump administration to use emergency declarations to circumvent environmental laws and other regulatory hurdles.

For example, in June 2020, President Trump signed an executive order urging federal agencies to expedite transportation and infrastructure projects by streamlining compliance with environmental laws including NEPA, the Endangered Species Act and the Clean Water Act. That executive order cited emergency authorization based on the economic downturn resulting from the COVID-19 pandemic. As with the NEA proclamation, the President’s emergency order was opposed by several states and environmental organizations.

The Supreme Court’s ruling on the border wall cases could provide the executive branch with greater leeway in determining what constitutes a national emergency, and a redefinition of emergency powers that could profoundly re-shape the checks and balances between the executive and legislative branches, as well as the ability of states and non-governmental organizations to challenge executive decisions.

A new bill enacted by the California legislature provides an opportunity to speed up approval of new and stalled transportation projects by limiting environmental review requirements. The legislation adds a new exemption to the California Environmental Quality Act (CEQA) for sustainable transit projects, including new projects that would be built in existing public rights-of-way. Quickly approved by Governor Newsom, the bill is intended to stimulate economic recovery, and boost public transit agencies that are struggling with massive ridership declines as a result of COVID-19.

New Sustainable Transit Exemption Categories
Senate Bill (SB) 288 creates a new statutory exemption from environmental review pursuant to CEQA. The new statutory exemption takes effect on January 1, 2021, and expires on January 1, 2023. The exemption applies to (1) pedestrian and bicycle facilities; (2) wayfinding and customer information projects for transit riders, bicyclists or pedestrians; (3) transit prioritization projects; (4) designation of highway lanes or shoulders for bus-only lanes; (5) new or increased light rail, bus, or bus rapid transit service on existing public rights-of-way; and (6) charging or refueling infrastructure for zero-emission transit buses. Also exempted are utility infrastructure works associated with any of those six project categories, or projects that combine components of the exempted categories. Projects by cities or counties to reduce minimum parking requirements are also subject to the new statutory exemption. SB 288 also modifies an existing statutory exemption for bicycle transportation plans by deleting the requirements for a traffic and safety impact assessment and mitigation of potential impacts. The bill also extends that bicycle transportation plans exemption until January 1, 2030, instead of expiring on January 1, 2021.

Requirements for Application of Exemption
To rely on the new exemption, projects must be located in urbanized areas and on or within an existing public right-of-way. Exempt projects also cannot add new automobile capacity or require the demolition of affordable housing units. If a project’s cost exceeds $100 million, additional requirements apply: (1) the project must be incorporated into a regional transportation plan or other plan that has undergone programmatic-level environmental review, (2) all construction impacts must be fully mitigated and (3) the lead agency must prepare a business case analysis and a racial equity analysis. The lead agency must also hold at least three public meetings prior to approving the project, including one to review the project’s business case and racial equity analysis. Two public meetings are also required annually during project construction. In addition, the lead agency must commit to using a skilled and trained workforce, including by use of a project labor agreement.

Purposes and Benefits of New Exemption
The bill notes that the COVID-19 pandemic has resulted in unemployment for 4.5 million Californians, and further threatens the 1.6 million transportation workers in the state. To avoid a surge in driving as the state reopens, the legislature wants to incentivize building public transit and completing street and bicycle lane projects as proven job generators with a 5 to 1 economic return. The purpose of the bill is to reduce the time and cost associated with delivering “sustainable transportation projects that can accelerate progress towards California’s environmental goals and improve the public health of Californians.” The new exemption should facilitate on-going efforts by public transit agencies in several California cities to make transit improvements in existing roadways while traffic volumes are reduced by the COVID-19 pandemic. San Francisco is moving forward with several traffic calming and safety projects, as well as implementation of new transit lanes for faster and more efficient bus routes. In downtown Los Angeles, active street improvement projects include addition of bus-only lanes and protected bike lanes in major corridor streets.

In addition to supporting public transit agencies, SB 288 can also create opportunities for new public-private partnerships. The private sector has shown increasing interest in investing in proposed streetcar, light rail and bus transit projects over the past several years. The new exemptions may help fast-track new transportation projects by eliminating CEQA review and thereby reducing one of the most time-consuming and risky elements of project development. Transportation agencies and private developers should carefully evaluate proposed projects to determine if they can take advantage of the new exemption over the next two years.

Effective September 19, 2020, Assembly Bill 1867 (codified as Labor Code 248.1), recently signed by the Governor, will require public and private employers to provide up to 80 hours of COVID-19 related supplemental paid sick leave (“COVID-19 Supplemental Paid Sick Leave”) for “emergency responder” and “health care provider” employees who are exempt from the Emergency Paid Sick Leave Act (“EPSLA”) benefits under the Families First Coronavirus Response Act (“FFCRA”). Similar to the FFCRA, the benefits provided under AB 1867 expire on December 31, 2020.

Definition of Emergency Responder
An emergency responder is defined as “anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.”

Employers’ Responsibilities
Under AB 1867, employers must now provide EPSL to emergency responders and health care providers who have been exempted from FFCRA’s EPSLA if the employee is unable to work for one or more of the following three reasons.

• Employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19.
• Employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19.
• Employee is prohibited from working by the employer due to concerns related to the potential transmission of COVID-19.

Employees using this leave are entitled their regular rate of pay capped at $511 per day and $5,110 total for the 80 hours.

Employers must post a notice that will be provided by the California Labor Commissioner. If workers do not frequent a workplace, employers can disseminate notice electronically, e.g., by email.

For employers that provided the emergency responder employees a comparable benefit and compensation, AB 1867 expressly provides that the employer may attribute the supplemental benefits provided for the purpose of satisfying the requirements of Labor Code section 248.1.

Meyers Nave assists California employers to navigate frequently changing federal, state and local COVID-19 related laws. For updates on COVID-19 developments, please click here to visit our COVID-19 Resource Center or send an email to info@meyersnave.com.

In early April 2020, the Judicial Council enacted an emergency eviction ban as Temporary Emergency Rule Number 1 to help stem an expected deluge of eviction proceedings due to nonpayment of rent caused by the financial effects of the COVID-19 pandemic. On August 13, the Judicial Council voted to end its statewide moratorium on evictions effective September 1. The Judicial Council’s elimination of its unlawful detainer moratorium forced the Legislature to take urgent action at the end of the 2020 legislative session to forestall likely unlawful detainer litigation beginning in September. If the Judicial Council’s emergency rule were to sunset prior to enactment of a legislative solution, then eviction proceedings would be allowed to commence immediately, except in cities and counties that enacted their own moratoriums.

Although numerous bills were considered, AB 3088 emerged as the primary legislative response after negotiations between the Governor, legislators, apartment owners and tenant advocates. AB 3088 took effect immediately upon the Governor’s signature on August 31. The bill is not considered to be a long-term fix to the COVID-19 related rental problem, but it does provide the Legislature with another five months to come up with a longer term solution.

Impact on Tenants
AB 3088 extends eviction protections to residential tenants who declare to their landlords, via written notice under penalty of perjury, that they have a financial hardship related to COVID-19. Hardships can range from loss of income, increased work expenses, or increased health care, child care and family care expenses caused by COVID-19. The bill protects a wide range of tenants of apartments, single family homes, duplexes, mobile homes and accessory dwelling units. Tenants who timely send their landlord a hardship declaration cannot be evicted for failing to pay rent that was due between March and August of 2020.

In addition, tenants who send the hardship declaration cannot be evicted for failing to pay rent due between September 2020 and January 2021, provided that the tenants pay at least 25% of the rent due during that period. Higher income tenants (earning $100,000/year or 130% of area median income) must provide documentation supporting their claim of hardship to be entitled to the eviction ban. It is important to note that unpaid rent is not forgiven by the legislation and remains owed to landlords. The rent can be collected as consumer debt in small claims court beginning March 1, 2021.

Impact on Landlords
If landlords want to pursue evictions against residential tenants who are behind in their rent payments, landlords will need to send notices containing a statutory explanation of tenants’ rights under the new law. Landlords also must provide tenants with hardship declaration forms that are printed in the same language used in the lease. Tenants have 15 days to complete and send the declarations to their landlords. On October 5, 2020, courts can resume issuing summons in unlawful detainer actions and can continue processing those actions.

The new law allows landlords to pursue unlawful detainer actions in a variety of circumstances, including actions against nonresidential tenants, evictions for lease defaults other than nonpayment of rent, evictions for missed rent payments prior to March 2020, and evictions for nonpayment of rent unrelated to COVID-19. Landlords are prohibited from evicting a tenant for a reason other than nonpayment of rent in retaliation for having unpaid COVID-19 rental debt. AB 3088 also penalizes landlords up to $2,500 for resorting to self-help to evict a tenant, such as locking the tenant out, throwing personal property out onto the curb, or shutting off utilities, rather than going through the required court process.

Impact on Local Eviction Laws
AB 3088 does not preempt existing eviction moratoriums by local governments, which remain in place until they expire. However, new local eviction moratoriums passed after August 19, 2020 cannot take effect until February 1, 2021, and ordinances that expire prior to February 1 cannot be extended until that date. Further, if local ordinances establish a repayment period, they must require that repayments begin on or before March 1, 2021.

Impact on Commercial Evictions
AB 3088 does not apply to commercial unlawful detainers, meaning that commercial evictions can commence beginning September 2, 2020. However, locally enacted moratoriums may provide an extra layer of protection for certain commercial tenants. For example, the City of Los Angeles’ eviction moratorium, which does not expire until three months after the lifting of the local COVID-19 emergency period, prohibits evictions for commercial tenants unable to pay rent due to the COVID-19 pandemic. Yet, in Los Angeles, as in many California cities and counties, emergency tenant protection ordinances that apply to commercial evictions are generally limited to small businesses. Jurisdictions which have enacted similar moratoriums include the cities of Oakland, San Francisco and San Diego, as well as Alameda, Santa Clara, Los Angeles and San Diego counties. The terms of the various ordinances vary substantially, as do the respective termination dates for the eviction bans, so determining the procedural and substantive rights of the parties requires careful review of the details of these ordinances.

In addition, some California state courts have adopted local rules prohibiting all unlawful detainer matters, including those involving commercial tenancies. For example, the Alameda County Superior Court issued a stay on evictions on March 16, 2020, and has extended the stay to December 31, 2020. Similar stays or restrictions on unlawful detainer actions have been put in place by several other local courts across California.

Impact on Advice and Counsel
AB 3088’s requirements are complex and are likely to cause confusion for landlords, tenants and courts. This complex, albeit temporary, set of rules relating to the eviction process and related legal proceedings in the COVID-19 environment will be subject to interpretation by courts and will continue to change. Landlords, tenants and their counsel need to precisely follow all statutorily required procedures and stay abreast of potential future developments in the law.