Update on California’s COVID-19 Emergency Temporary Standards, and OSHA

In a surprising move, last night, June 9, 2021, in a special meeting, the California Occupational Safety and Health Standards Board withdrew the revisions to Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards that it had just approved on June 3. The Standards Board may consider new revisions as soon as its next regular meeting on June 17.

The Standards Board is under pressure to align workplace requirements to the California Department of Public Health’s (“CDPH”) new guidance that as of June 15, face coverings will not be required for fully vaccinated Californians in most public settings. The CDPH guidance, however, provides that face coverings will still be required for everyone in settings such as public transit, K-12 schools, childcare settings, other youth settings, healthcare settings, correctional facilities, homeless shelters, and cooling centers.

Despite the new CDPH guidance, employers must continue to follow the Emergency Temporary Standards, which were first approved in November 2020. As a result, for now, even after June 15, face coverings will still be required for all workers when indoors.

In addition, today, June 10, the federal Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued an emergency rule that sets workplace safety parameters for employers in the health care sector for the duration of the COVID-19 pandemic. It also updated its guidance for mitigating and preventing the spread of COVID-19 for all industries. Information about both developments is located here.

This past week’s events make clear that employers need to continue to stay alert and flexible when it comes to managing COVID-19 issues in the workplace.

Round 2: Cal/OSHA Revises Emergency Temporary Standards for COVID-19 Prevention

June 10 Update: Please click here for the latest news.

While many employers were expecting that the California Division of Occupational Safety and Health (“Cal/OSHA”) would follow the lead of the Center for Disease Control to do away with most masking and physical distancing requirements for vaccinated people, Cal/OSHA is taking a much more conservative approach. While the revised rules relax some restrictions, the revised rules will add new required protections for unvaccinated employees.

On June 3, 2021, the Occupational Safety and Health Standards Board adopted Cal/OSHA’s revised COVID-19 prevention emergency temporary standards (“ETS”). As some will recall, California approved the original Cal/OSHA emergency temporary standards on COVID-19 infection prevention in November 2020. The new ETS is currently under review by the Office of Administrative Law, and if approved by June 13, will go into effect on June 15, 2021.

Employers should note that the revised ETS includes the following requirements, which apply to private employers and public entities:

Respirators:

  • After July 31, 2021, employers must provide respirators for voluntary use to all employees who are not fully vaccinated.
  • Respirators are defined as “a respiratory protection device approved by the National Institute for Occupational Safety and Health (“NIOSH”) to protect the wearer from particulate matter.”
    • Examples of proper respirators under this definition include an N95 filtering face piece respirator.
  • Whenever respirators are provided for voluntary use under the revised ETS, they must be trained and instructed on the following:
    • (1) How to properly wear the respirator provided;
    • (2) How to perform a seal check according to the manufacturer’s instructions each time a respirator is worn, and the fact that facial hair interferes with a seal.
  • Note that while the ETS are silent on how long an N95 mask may be used, most FDA-cleared N95 respirators are labeled as “single-use” disposable devices. Also, the Department of Industrial Relations’ educational materials regarding proper N95 respirator use indicate that masks should be discarded at least at the end of each day.

Physical Distancing:

  • Physical distancing measures will remain in place until at least July 31, 2021.
  • Employers must comply with either of the following for all employees working indoors or at outdoor mega events (a new term, defined as “an event that includes over 10,000 participants or spectators outdoors”):
    • (1) All employees must be separated from other persons by at least six feet, except for employees who are wearing respirators.
    • (2) All employees who are not fully vaccinated must be provided respirators for voluntary use.
  • After July 31, 2021, physical distancing is no longer required (except during outbreaks), but employers must provide all unvaccinated employees with respirators for voluntary use.

Face Coverings:

  • Face coverings are still required of all employees unless any of the following apply:
    • (1) An employee is alone in a room.
    • (2) All persons in a room are fully vaccinated and do not have COVID-19 symptoms.
  • “Fully vaccinated” requires that the employer has documentation showing the person received, at least 14 days prior, either the second dose in a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine. Vaccines must be FDA approved or have an emergency use authorization from the FDA.
  • Face coverings include surgical mask, a respirator worn voluntarily, and tightly woven fabrics with at least two layers.
  • Employers must provide training and guidance on the importance of face coverings, including the fact that particles containing the virus can travel more than six feet, especially indoors, so physical distancing must be combined with other controls, including face coverings and hand hygiene, to be effective.

Testing

  • Employers must offer free COVID-19 testing to unvaccinated symptomatic workers during paid working time, even if there is no indication that the exposure was work-related.

Exclusion from the Workplace

  • Fully vaccinated workers who test positive for COVID-19 still must be excluded from work for 10 days after the positive test, even if they are asymptomatic.

Takeaways for Employers

  • It is likely that California will adopt the revised ETS next week. Employers should plan to update their COVID-19 prevention plans. If employers do not have one already, one should be prepared, as they are required of all employers.
  • When drafting policies on how and when face covering requirements will remain in place, remember that the U.S. Equal Employment Opportunity Commission considers information about an employee’s COVID-19 vaccination status to be confidential medical information under the Americans with Disabilities Act.
  • Employers should plan for how they will collect and secure vaccination records.
  • If the new rules take effect, Cal/OSHA is likely to issue FAQs and other interpretative guidance to help employers to navigate these issues.

Meyers Nave can assist employers to comply with these new requirements.

Court of Appeal Upholds SB 35 and Orders City of Berkeley to Issue Ministerial Approval of Mixed-Use Affordable Housing Project

The Court of Appeal reversed a trial court judgment and issued an order directing the City of Berkeley to grant ministerial approval pursuant to Senate Bill (SB) 35 for a 260-unit mixed-use project. (Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277.) This is the first appellate case to address the SB 35 streamlined approval process for housing. While much of the opinion concerned issues unique to the project, the court’s decision confirms the validity of the statute and its limitations on the discretion of local agencies under SB 35.

The case involved the City’s denial of one of the first SB 35 applications in the state. The City’s planning department denied the application for the mixed use development (with 135 apartments and retail) on grounds that SB 35 could not constitutionally be applied to limit the discretion of a charter city; that SB 35 does not apply to mixed-use developments; and that the project did not comply with the requirements for ministerial approval for various reasons, including that the project might require demolition of a historic structure.

The court first addressed whether the project is ineligible for SB 35 approval because it would require the demolition of a “historic structure,” which is an exception to ministerial approval included in the statute. The City had denied the developer’s application for ministerial approval, in part, on the grounds that construction of the project would require the destruction of a tribal shellmound, a local historic landmark that conflicting surveys indicated may encroach onto the project site. While the trial court had deferred to the City’s determination on the issue, the court of appeal reversed, rejecting the City’s interpretation of the term historic “structure” as including the shellmound and finding there was no evidence that the shellmound remnants could reasonably be viewed as a structure.

Next, the court turned to arguments that applying SB 35 to require ministerial approval would amount to an unconstitutional interference with the City’s “home rule” authority over historic preservation and land use issues as a charter city. On this issue, the court explained that, although local historical preservation and land use regulation are traditional municipal affairs, SB 35 was enacted to address a statewide issue—the housing crisis and specifically the lack of affordable housing. Moreover, because the statute’s interference with local governance is narrowed by limiting its application to cities that have failed to meet regional housing obligations and numerous other provisions limiting the scope of eligible projects, the court concluded there is no unconstitutional interference with the City’s home rule authority in this instance.

The court of appeal also rejected the City’s argument that mixed-use projects are ineligible for the ministerial approval process unless the zoning for the site specifically provides that mixed use projects contain two-thirds residential uses. Again disagreeing with the trial court, the court held that the relevant inquiry is whether the project includes at least two-thirds residential uses, reasoning that any interpretation which would further limit the number of eligible projects would be counter to the legislature’s intent to promote affordable housing construction.

Finally, the court rejected the City’s arguments that, even if SB 35 applies, the project is inconsistent with applicable objective zoning standards, namely, the City’s Affordable Housing Mitigation Fee ordinance and traffic standards. First, the court explained that an affordable housing mitigation fee is not the type of “objective planning standard” with which a project can be inconsistent, thus, the ordinance could not provide the City with a valid basis to deny ministerial approval under SB 35. Second, with regard to the alleged failure to comply with traffic standards, the court found that the City failed to provide the developers any specific criteria by which to assess project traffic impacts. Because the statute requires that a city provide applicants with documentation of which standard(s) a project conflicts with and explanation as to why, the court concluded that the City’s assertion the project fails to comply with traffic standards is an insufficient basis for its denial of ministerial approval.

While the opinion ultimately turned on the unique factual circumstances and regulations at issue, the court’s decision emphasizes the Legislature’s intent to promote housing construction and to limit local governments’ ability to impede development in areas where housing is needed most through the application of subjective local regulations. The opinion is likely to embolden the use of SB 35 for new housing projects in California and highlights that local agencies should provide objective development standards and strictly adhere to the procedures and timelines included in SB 35.

Gallagher v. Newsom – California’s Third District Court of Appeal Upholds Governor Newsom’s Broad Authority to Issue Executive Orders During the COVID-19 Emergency

On May 5, 2021, California’s Third Appellate District struck down a superior court injunction that sought to narrowly limit Governor Newsom’s authority to issue Executive Orders under the Emergency Services Act (“the Act”).  What began as California Assemblymen James Gallagher and Kevin Kiley’s challenge to an Executive Order requiring vote-by-mail ballots to be sent to all California voters evolved into a dispute that challenged the very power of the Governor to issue Executive Orders under emergency authority during the extended COVID-19 pandemic.

The case’s initial focus was Governor Newsom’s Executive Order requiring all voters be provided a vote-by-mail ballot for the November 2020 election, along with other measures intended to ensure voting access during the COVID-19 pandemic.  Assemblymen Gallagher and Kiley filed suit challenging the Executive Order as an unconstitutional exercise of powers reserved for the Legislature.  Sutter County Superior Court Judge Sarah Heckman ruled that the Governor had exceeded his authority under the Act, finding that the Governor had the power to suspend laws but not to make new laws or amend existing laws.  Judge Heckman enjoined the Governor from issuing any executive orders that amend or make statuory law, noting that the Governor had issued at least 50 executive orders under the Act and would likely continue to issue more executive orders relating to the COVID-19 pandemic.

Just one day after the Governor sought a writ challenging the ruling, the Third Appellate District stayed the injunction.  Now, the Court has issued its decision holding that the Emergency Services Act permitted the Governor to amend or make new laws.  The Court went on to explain that Government Code § 8627 authorized the use of “all police powers,” which includes the power to legislate by enacting laws that promote the public health, safety, and welfare.  The Court recognized the Act’s purpose of empowering the Governor to deal with a wide variety of differing emergencies from wildfires to floods to a pandemic.  As well, the Court found no violation of the separation of powers doctrine nor any improper delegation of legislative authority to the Governor.  Rather, the Court concluded that the Act provided guidance in how to implement the Act by requiring that their be a coordinated emergency response.  More crucially, the Act included a key safeguard that any orders pursuant to the Act cease to have effect once the emergency is over, and the Legislature itself has the authority to declare an end to the emergency.

Gallagher offers the strongest support yet for the Governor’s authority to use Executive Orders to address the COVID-19 pandemic.  The petitioners have gone on record that they will be seeking review by the California Supreme Court.

SCOTUS Vacates Second Circuit Decision Finding President Trump’s Prior Twitter Ban Violated the First Amendment

On April 5, 2021 the Supreme Court granted the government’s writ of certiorari and vacated the Second Circuit’s decision in Knight First Amendment Institute v. Trump, 928 F.3d 226 (2nd Cir. 2019) where it found that then-President Trump violated the First Amendment when he blocked users from his Twitter account. The Supreme Court’s unanimous decision issued instructions to the Second Circuit to dismiss the case as moot given the change in Presidential administration. The opinion, (now titled Biden v. Knight First Amendment Institute), was issued without discussion save a concurring opinion by Justice Thomas. In his concurring opinion, Justice Thomas took aim at Twitter’s recent ban on Trump (which happened after the Second Circuit issued its opinion) noting that today’s digital platforms provide unprecedented amounts of speech and unprecedented concentrated power in the hands of a few private parties. While the Supreme Court did not address the issue, Justice Thomas opined that the Court would “soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”

The Supreme Court’s decision to vacate the Second Circuit’s ruling with directions to dismiss based on mootness, does not change the immediate legal landscape. But it is a foreshadowing that the jurisprudence in this arena is still very much evolving. Both the Fourth Circuit’s decision in Davison v. Randall, 912 F.3d 666 (4th Cir. 2019) and the Fifth Circuit’s decision in Robinson v. Hunt County Texas, 921 F.3d 440 (5th Cir. 2019) still stand and in those cases the courts viewed the interactive component of a government official’s social media account as a public forum. With the recent development of Twitter and Facebook more assertively banning or blocking certain posts, however, the courts may now look at the issue through a different lens. This coupled with the legislature’s increased interest in possible updates to Section 230 of the Communications Decency Act which shields social media platforms from liability, serves to highlight the dynamic issues at play with social media and the First Amendment.

President Biden Unveils $2.2 Trillion Infrastructure Plan

On March 31, President Biden announced a $2.2 trillion “American Jobs Plan” to shore up the nation’s infrastructure and create jobs. “It is not a plan that tinkers around the edges,” the President said in a speech unveiling the plan. “It is a once-in-a-generation investment in America.” While the administration’s plan will undoubtedly face opposition, the broad commitment to infrastructure investment is consistent with legislative efforts advancing in the U.S. House of Representatives (the LIFT America Act). The final legislation could create exceptional federal funding opportunities for both public and private sector developers of transportation, water, energy and other infrastructure projects.

Unlike the economic stimulus in 2009, the White House’s plan seeks to incentivize more than just shovel-ready projects. “The American Jobs Plan is looking to the future,” said U.S. Department of Transportation Secretary Pete Buttigieg. “But, yes, we will be supporting hundreds of billions of dollars of shovel-ready projects, but we’re also interested in shovel-worthy projects, because this is a once-in-a-lifetime opportunity to shape America’s infrastructure future, to make sure we’re competing and winning, when other countries are doing so much more than we are.”

The sprawling proposal, which includes both spending and tax credits, would be paid for with 15 years of higher taxes on corporations. The spending in the plan would take place over eight years, and the tax increases would more than offset that spending in 15 years, according to estimates. Republicans in Congress and some business interests immediately criticized the plan to increase corporate taxes and other aspects of the plan and vowed to fight the proposal. Senate Majority Leader Mitch McConnell blasted the American Jobs Plan claiming the proposal is a “Trojan horse for major tax increases” and promised to oppose the plan “at every step.”

Although details about allocation and eligibility are not yet available, the plan in general includes:

Transportation infrastructure: The American Jobs Plan invests $621 billion on roads, bridges, public transit, rail, ports, waterways, airports and electric vehicles to improve air quality, reduce congestion, and limit greenhouse gas emissions.  This includes $115 billion in modernizing 20,000 miles of highways and roads and repair 10,000 bridges (including the ten most economically significant bridges in the country); double the federal funding for public transit by investing $85 billion to modernize existing transit and help agencies expand their systems to meet demand; $80 billion to passenger and freight railways; $25 billion to airports, including funding for the Airport Improvement Program; and $17 billion to waterways and ports, and includes a Healthy Ports program to mitigate the cumulative impacts of air pollution on neighborhoods near ports.

Water infrastructure, Brownfields and mine and oil and gas reclamation: The plan includes a $66 billion investment to rebuild water infrastructure, including upgrading the country’s drinking water, wastewater and stormwater systems, tackle new contaminants and support clean water infrastructure in rural parts of the country.  Additionally, the proposal includes a $5 billion investment in the remediation and redevelopment of Brownfield and Superfund sites, as well as related economic and workforce development.  An additional $45 billion will be allocated to replace all of the nation’s lead pipes and service lines.  Further, an additional $16 billion is allocated to plugging oil and gas wells and restoring and reclaiming abandoned coal hardrock, and uranium mines.  Finally, the plan calls for building clean industries in distressed communities, including investment in 15 decarbonized hydrogen demonstration projects in such communities and stablishing ten pioneer facilities that demonstrate carbon capture retrofits for large steel, cement and chemical production facilities.

Affordable housing:  The plan would allocate $213 billion in tax credits and grants to develop, preserve and retrofit more than two million affordable and sustainable housing units, including 500,000 new homes for low- and middle-income homebuyers.  The plan pairs this investment with the elimination of state and local exclusionary zoning laws.  The proposal also provides $40 billion to improve the infrastructure of the public housing system in America.

Electrical grid:  The American Jobs Pan includes a $100 million investment in the electric grid, including the creation of a tax credit that incentivizes the buildout of at least 20 gigawatts of high-voltage capacity power lines and establishing a new Grid Deployment Authority at the Department of Energy (DOE) that allows for better leverage of existing rights-of-way and supports creative financing tools to spur additional high priority, high-voltage transmission lines.

Electric vehicles:  The proposal includes $174 billion investment in the electric vehicle market, including consumers rebates and tax incentives to buy American-made electric vehicles and establishing grant and incentive programs to build a national network of 500,000 charging stations by 2030.  It would also replace 50,000 diesel transit vehicles and electrify at least 20% of yellow school buses.

Broadband: The American Jobs Plan would invest $100 billion to give every American access to affordable, reliable and high-speed broadband.

Other: The plan includes $180 billion to advance U.S. leadership in critical technologies, upgrade research infrastructure, and establish the U.S. as a leader in climate science, innovation, and research and development; $300 billion toward boosting manufacturing, specifically semiconductor, medical, and clean manufacturing; $100 billion to build new public schools and upgrade existing buildings, and $12 billion to states to use towards infrastructure needs at community colleges; $100 billion to workforce development to help dislocated workers; and $10 billion to modernize federal buildings’

U.S. House Democrats Also Introduced Infrastructure Funding Legislation

President Biden’s plan comes on heels of a much smaller infrastructure plan introduced last month by Democrats in the U.S. House Energy and Commerce Committee.  The Leading Infrastructure for Tomorrow’s America Act (or LIFT America Act) provides for a $312 billion investment in the nation’s electric grid, drinking water infrastructure and energy efficiency. The legislation is supported by all of the Democratic members of the panel and represents the committee’s opening proposal for a infrastructure package.

A full legislative hearing on the LIFT America Act was held on March 22 but the Committee has not yet voted on the legislation.  It is not known whether Congressional Democrats will attempt to merge this legislation with Biden’s more expansive American Jobs Plan.  However, Chairman Frank Pallone, Jr. (D-NJ) affirmed Biden’s proposal “aligns with the LIFT America Act.”

The LIFT America Act contains the following funding and investment proposals per year for fiscal years 2022-2026:

Drinking water infrastructure and programs: The proposal authorizes $4.5 billion per year for lead drinking water line replacements and the creation of a new EPA grant program under the Safe Drinking Water Act to aid community water systems fouled by Per- and polyfluoroalkyl substances (PFAS chemicals).  The LIFT America Act also would extend and expand authorizations of $26.3 billion for a variety of water programs, including the Safe Drinking Water State Revolving Loan Fund.

Grid modernization, energy conservation and clean energy infrastructure: The LIFT America Act authorizes $3.87 billion per year for electric grid infrastructure, focused on grid modernization, security, resiliency and efficiency.  The bill also includes funding to establish a strategic transformer reserve to speed electric grid recovery following extreme weather events.  It also offers tens of billions in authorizations for several programs to cut energy usage, as well as for energy efficiency retrofits at schools, homes and public facilities.  Further, the legislation would provide grants to states, local governments and Indian tribes to support their efforts to reduce fossil fuel emissions and conserve energy.

This proposed legislation also provides $850 million per year to spur the development of Smart Communities infrastructure through technical assistance, grants to local agencies and training. In particular, the LIFT America Act would authorize the DOE’s proposed Cities, Counties and Communities energy program to provide technical assistance to cities and communities and competitive grants for clean energy solutions in development and redevelopment efforts.

Alternative fuels, electric vehicles and electrification.  The legislation would authorize the Clean Cities Coalition Network Program and provide $375 million per year (allocated according to criteria to be established by the Secretary of Energy) to support expanded development of alternative fuel infrastructure and expanded use of alternative fuel vehicles.  Further, the bill would provide $625 million per year to reauthorize the State Energy Program and provides additional grants  to support development of an electric vehicle charging network.  It also includes $500 million per year for electric vehicle supply equipment for light-duty vehicles  and $22.5 billion per year to provide grants to state and local governments to support projects that encourage the use of electric vehicles.  Additionally, proposal authorizes $3.8 billion to reduce air pollution at ports by electrifying port infrastructure.

Brownfields and other programs:  The LIFT America Act would authorize $2.7 billion per year for EPA’s Brownfields program and includes provisions on dam safety, including mandating dam safety and financial viability requirements as part of the federal hydropower licensing processFurther, the bill would authorize $80 billion in high-speed broadband internet buildout across the country.

Top 10 Questions about California’s New COVID-19 Supplemental Paid Sick Leave Law with Retroactive Paid Time Off

California Governor Gavin Newsom signed Senate Bill (SB) 95 on March 19, 2021, which creates new Labor Code section 248.2 and mandates that public and private employers with 26 or more employees provide supplemental paid sick leave (SPSL) for COVID-related absences in addition to paid time off benefits employees receive by law or policy. The law goes into effect on March 29, 2021, applies retroactively to January 1, 2021, and is effective through September 30, 2021. To help employers understand the new law and its requirements, Meyers Nave attorneys Gorev Ahuja and Arlene Yang prepared this advisory guide answering the ten most common questions employers are asking about

SB 95. Additional information is also available in this FAQ provided by the State of California Department of Industrial Relations.

Please click here to read Gorev and Arlene’s guide.

  1. Which employers are subject to SB 95?
  2. When does SB 95 go into effect?
  3. What happened to the prior mandates under AB 1867 and FFCRA?
  4. Is SB 95 retroactive?
  5. For what reasons may employees take supplemental paid sick leave?
  6. What is the amount of leave employees receive and can use?
  7. How much are employees paid?
  8. What if employers already provided paid sick leave for COVID-19 reasons?
  9. How does SB 95 interact with Cal/OSHA COVID-19 Emergency Temporary Standards?
  10. What are the next steps for employers?

One Year In: Recent Shelter In Place Litigation Roundup

Faced with a once in a century pandemic, everyday life has changed in ways that none could have predicted a year ago. This extends to a quickly evolving jurisprudence regarding the interplay between constitutional rights and the government’s ability to restrict activity during a pandemic as the courts, including SCOTUS, have issued a plethora of expedited rulings on these issues. All Californians likely vividly recall when Governor Gavin Newsom issued the statewide shelter in place order one year ago this March. As we approach the one-year anniversary of the initial shelter in place order, below is a summary of three of the most recent developments in the continuing litigation in which worship services, restaurants, and gyms are challenging the State and local restrictions.

  1. Worship Services: Cross Culture Christian Center, et al. v. Newsom, et al. – March 9, 2021 Eastern District Order Denying Request for Preliminary Injunction
    On February 6, 2021, the State updated the Blueprint in response to the Supreme Court’s decision in South Bay United Pentecostal Church v. Newsom. The updated Blueprint now permits worship services to resume indoors at 25% capacity in Tiers 1 and 2, and up to 50% capacity in Tiers 3 and 4. Plaintiffs Cross Culture Christian Center, Cornerstone Church, and their respective pastors, moved for a preliminary injunction that would allow up to 50% capacity for Tiers 1, 2, and 3 and up to 75% capacity for Tier 4. The Plaintiffs also sought to enjoin the State from enforcing the singing and chanting restrictions during worship services.
     
    The Honorable Judge Mendez was not persuaded that Plaintiffs could meet the high standard for a preliminary injunction. The Court ruled that Plaintiffs had not established that, under the revised Blueprint, worship services were treated any more harshly than comparable secular activity, such as movie theaters, lecture halls, and concerts where people gather for extended periods of time. The Court went on to find that even applying the more rigorous strict scrutiny standard, the Blueprint’s restrictions conformed with what SCOTUS had ordered in South Bay United.
  2.  

  3. Restaurants: County of Los Angeles Department of Public Health v. Sup. Ct. of Los Angeles (California Restaurant Association) – March 1, 2021 Court of Appeal Opinion Reversing Superior Court’s Preliminary Injunction
    On December 15, 2020, Los Angeles Superior Court Judge Chalfant issued a preliminary injunction enjoining Los Angeles County’s outdoor dining ban because he determined that the County’s failure to conduct a specific risk-benefit analysis meant the ban could not survive the deferential rational basis standard of review. This ruling was an outlier that misapplied the rational basis review standard and was quickly shot down on appeal. Specifically, after having previously stayed the injunction pending appeal, on March 1, 2021 the Court of Appeal then issued its decision on the merits reversing the superior court’s preliminary injunction. The Court of Appeal explained that the deferential emergency response standard of review set forth in Jacobson v. Massachusetts was the appropriate standard. While the Supreme Court has rejected that standard when a fundamental right was at issue, such as a Free Exercise claim, the Supreme Court had pointedly not overturned Jacobson despite its many opportunities to do so.
     
    In applying that standard, the Court of Appeal found that Los Angeles County’s outdoor dining ban had a real and substantial relation to the legitimate state interest in curbing the spread of COVID-19 and survived the constitutional challenge. The Court of Appeal decidedly rejected the superior court’s imposition of a requirement to conduct any specific risk-benefit analysis to support its COVID-19 restrictions. Now with Los Angeles County moving to the red tier, indoor dining is slated to resume at 25% capacity.
  4.  

  5. Gyms: Excel Fitness Fair Oaks v. Newsom – March 2, 2021 Eastern District Order Granting Motion to Dismiss
    In the Blueprint’s Tier 1, gyms and fitness facilities may only operate outdoors. In response, many gyms and fitness facilities have brought challenges to these restrictions, raising several constitutional challenges including due process violations, equal protection violations, and regulatory takings. In one of the most recent decisions in the gym cases in California, Judge Mendez granted the State and local defendants’ motions to dismiss with prejudice as to each of these claims.
     
    The Court held that there was no fundamental constitutional right at issue, despite Plaintiffs’ arguments that the right to operate a business of one’s choosing constitutes a fundamental right. The Court further found the takings claim could not be sustained where Plaintiffs were contesting the validity of the law, and also because even complete restrictions on property use that are temporary are not regulatory takings. The other constitutional claims were subject only to the deferential rational basis standard of review as no fundamental right was at issue. The Court explained that the restrictions on indoor gym operations were rationally related to slowing the spread of the virus, and thus Plaintiffs’ challenges did not rise to the level of a constitutional violation. This case is on appeal to the Ninth Circuit.

 
Where Do We Go From Here?
California’s federal courts and appellate courts have been remarkably consistent in the many different challenges to State and local COVID-19 public health orders. These courts have refrained from second-guessing the public health officials who have crafted the restrictions, and have wielded the power of injunctive relief only where the law and evidence have compelled them to do so. In the most recent round of decisions, these courts have also been mindful of the overall context of the pandemic—there have now been more vaccinations than confirmed cases in the country and the vaccines offer the opportunity to finally put the pandemic in the past. But in light of that, and while State and local restrictions are now easing, the California federal and state courts are reluctant to speed up the reopening of California beyond what public health officials recommend.
 
About Our Shelter In Place Litigation Expertise
Meyers Nave’s Shelter In Place Litigation Team is currently defending counties, cities and health officials throughout California in federal and state court litigation challenging Public Health Orders, Shelter In Place Orders, and Reopening Plans related to the coronavirus pandemic. The team is tackling both the complex constitutional law issues in litigation as well as the practical enforcement issues that arise from restrictions placed on the operation of worship services, gyms, nail salons, wine bars, brew pubs, restaurants, and other businesses. We have obtained victories at the district and appellate court levels. Please click here for recorded Meyers Nave webinars and Client Alerts about legal developments related to COVID-19.

Avoid Costly Timekeeping Errors: California Supreme Court Says Employers May Not Round Meal Periods

On February 25, 2021, the California Supreme Court issued two important wage and hour rulings regarding meal periods: (1) under California law, employers cannot round time punches to the nearest preset time increment; and (2) time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations. In Donohue v. AMN Services, LLC, Plaintiff Kennedy Donohue worked as a nurse recruiter for AMN Services, LLC (“AMN”), a healthcare services and staffing company that recruits nurses for temporary contract assignments. Nurse recruiters were provided with 30-minute meal periods beginning no later than the end of the fifth hour of work.

AMN used a time keeping system that rounded time punches to the nearest 10 minute increment. For example, if an employee clocked out for lunch at 12:02 p.m. and clocked in after lunch at 12:25 p.m., the system would have recorded the time punches as 12:00 p.m. and 12:30 p.m.. Thus, the system would record a 30-minute meal period, even though the break was only 23 minutes.

Donahue filed a class action against AMN Services in 2014, alleging various wage and hour violations. Among other things, Donohue alleged that employees were prevented from taking their full lunch breaks, and claimed that the rounding policy resulted in employees being denied premium pay for breaks that were cut short.

Employers Cannot Round Time for Meal Periods
The case made its way to the California Supreme Court. The California Supreme Court opinion addressed two questions: (1) whether an employer may properly round time punches for meal periods, and (2) whether time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations.

First, the California Supreme Court found that rounding should not be applied to meal breaks. Given that the California Labor Code and wage orders have “precise time requirements” and that meal period provisions are designed to prevent even minor infringements, the Supreme Court reasoned that rounding is inconsistent with the purpose of the law. The rounding policy is not neutral, as “[i]t never provides employees with premium pay when such pay is not owed, but it does not always trigger premium pay when such pay is owed.”

Rebuttable Presumption of Meal Period Violation
Second, the Court held that noncompliant meal periods raise a rebuttable presumption of meal period violations. The Court noted that to rebut the presumption, AMN would need to provide evidence that employees voluntarily chose to work during off-duty meal periods that appear in time records to be short or delayed based on unrounded time punches. At AMN, employees were required to answer questions from a drop-down menu on the timekeeping system to identify whether it was the employee’s decision to have a late, missing, or delayed meal period.

Takeaway for Employers
Employers that use rounding policies for meal periods should change their timekeeping practices to record the exact time that employees start and end their meal periods. Furthermore, this decision essentially states that there is no “de minimis” exception to the 30-minute lunch rule, meaning that a meal period premium may be owed if the meal period is only 29 minutes long.

In addition, employers should consider implementing policies to require employees to identify whether each late, short, or missed meal period was due to (1) the employee’s choice; or (2) the employer prevented it. If the employee claims that it was not the employee’s choice, then the employee should be paid a meal period premium for those days. Having documentation that the employee affirmatively stated that the short, late, or missed period was by the employee’s choice, should help to rebut any assumptions regarding alleged meal period violations, if the case were ever litigated.

Employers should ensure that employees are provided compliant meal periods and should consult with a Meyers Nave Labor and Employment counsel about the best way to handle situations in which the records show noncompliant meal periods.

California’s Density Bonus Law: 2021 Update

Legislative Change Increases Density Bonus Amount and Parking Benefits

California’s Density Bonus Law provides housing developers with tools to encourage the development of much needed affordable and senior housing. New legislation that took effect on January 1 of this year provides for up to a 50% density bonus to be granted to housing projects consisting of a mix of affordable and market-rate homes, up from the previous maximum 35% density bonus for mixed income developments. The legislation, Assembly Bill 2345, also reduces parking requirements for many projects qualifying for a density bonus, lowers some thresholds for obtaining incentives and concessions from local jurisdictions, and adopts density bonus reporting requirements.

These legislative changes are outlined below and incorporated into the 2021 update of our Guide to the California Density Bonus Law. Please click here to read or print the 2021 Guide. If you have questions about the Density Bonus Law or information in the Guide, please contact the author of the Guide, Meyers Nave Senior Of Counsel Jon Goetz, at 800.464.3559 or jgoetz@meyersnave.com.

Bigger Density Bonus. The amount of density bonus required to be given under California’s Density Bonus Law is set on a sliding scale based on the percentage of affordable units provided. Before 2021, the maximum density bonus was 35% for housing projects which included either 11% very low income units, 20% lower income units, or 40% moderate income units. AB 2345 increased the top range of the density bonus to 50% for housing projects with 15% very low income units, 24% lower income units, or 44% moderate income units. The legislation does not modify the 80% density bonus required to be provided to completely affordable projects.

Parking Reductions. The Density Bonus Law allows qualifying developers, as a matter of right, to obtain lower parking space requirements than what would otherwise be required by local government standards. Before 2021, developers of density bonus projects were automatically entitled to obtain parking requirements of two spaces for two and three bedroom homes by requesting that standard, but AB 2345 lowers this standard to one and one-half spaces for two and three bedroom homes. AB 2345 also reduces the parking requirements for many projects located near accessible major transit stops. Local governments may no longer impose any parking requirements for (1) 100% affordable housing projects located within ½ mile from an accessible major transit stop and (2) 100% affordable senior housing projects that either offer paratransit service or are located within ½ mile from an accessible major transit stop. Parking requirements for projects with at least 11% very low income or at least 20% lower income units, which are located within ½ mile from an accessible major transit stop, are reduced from ½ space per bedroom to ½ space per unit. This change results in a significant reduction in required parking for transit-adjacent density bonus housing projects that include units with two or more bedrooms.

Incentives and Concessions. In addition to the density bonus, developers of affordable projects are entitled to one or more “incentives” or “concessions” from the local jurisdiction to assist in the construction of the project, with the number based on the percentage of affordable units in the project. AB 2345 lowers the required percentage of lower income units required to obtain multiple incentives and concessions.

Reporting Requirements. AB 2345, together with AB 168 which was also approved in 2020, expands the annual housing reporting requirements for local governments to now include information on density bonus projects (Government Code Section 65400).