Eviction Moratorium and Rental Assistance Update: SB 91 Enacts Changes for Landlords and Tenants

The California Legislature passed Senate Bill 91 just days before the State’s existing COVID-19 Tenant Relief Act was set to expire.  In addition to extending the existing eviction moratorium and approving new rental assistance, SB 91 enacts many new and important changes to unlawful detainer law that impact landlords and tenants.  Since the COVID-19 pandemic began, this is the first time the State has adopted legislation that includes both financial assistance to landlords and restrictions on tenant evictions.

Four Primary Changes in SB 91

  • Five month extension, until June 30, 2021, of the existing prohibition on evictions of residential tenants who are economically affected by COVID-19 and have paid at least 25% of their rent.
  • New State rental assistance program funded by recent Federal stimulus funds providing assistance for many low income tenants.
  • New requirements for landlord collection of COVID-19 rental debt.
  • New protections for tenants affected by COVID-19.

How SB 91 Extends Assembly Bill 3088

Assembly Bill 3088, adopted in August 2020, provides eviction protections to residential tenants who submit declarations to their landlords claiming a financial hardship related to COVID-19.  Under AB 3088, tenants who timely submit their hardship declaration cannot be evicted for failing to pay rent due between March 2020 and August 2020.  In addition, AB 3088 provided that tenants who submit the hardship declaration cannot be evicted for failing to pay rent due between September 2020 and January 2021, so long as the tenants pay at least 25% of the rent due during that period.  SB 91 extends that eviction protection through June 30, 2021, requiring that tenants pay at least 25% of rent due prior to June 30, 2021.  AB 3088 allowed landlords to begin collecting COVID-19 rent as consumer debt in small claims court beginning March 1, 2021. SB 91 extends that date to August 1, 2021. New breach of contract actions can also be filed in Superior Court beginning July 1, 2021.

New State Rental Assistance Program

The new rental assistance program applies $1.4 billion of California’s share of federal rental relief funds to pay rental debt of tenants who meet three criteria: (1) a member of the household is unemployed or has been financially impacted by COVID-19, (2) the household is at risk of homelessness or housing instability, and (3) the tenant earns less than 80% of the area median income.  The program is scheduled to begin by March 15, but is not guaranteed to have sufficient funds to assist all tenants who meet these criteria.  First priority will be given to tenants earning up to 50% of area median income, and second to residents of communities disproportionately impacted by COVID-19.

Landlords will be able to apply directly to the State on behalf of their tenants for payments of rental debt.  The program will pay landlords up to 80% of tenant rental debt accumulated from April 1, 2020 to March 31, 2021.  As a condition of accepting State rental assistance, landlords must agree to release all other outstanding debt owed by the tenant for the period covered by the rental assistance.  If a landlord does not apply to the State program, the tenant may apply instead, but State rental assistance to the tenant will be limited to 25% of rental debt.  Landlords who refuse to participate may jeopardize their future recovery of rental debt, as courts will look to whether the landlord sought State rental assistance when determining the landlord’s recovery.

Notice to Tenants by Feb. 28

The most urgent of SB 91’s provisions is a requirement that landlords must send a notice by February 28 describing changes in the law to all tenants who are behind in rent for the period of March 1, 2020 to February 1, 2021.  Failure to send the notice by the February 28 deadline may affect landlords’ ability to exercise unlawful detainer remedies against tenants.  The notices are available on the California Apartment Association website for no charge.

Actions to Recover COVID-19 Rental Debt

SB 91’s new rules for COVID-19 rental debt collection include a requirement that landlords file a declaration that they have attempted to assist the tenant with obtaining state rental assistance funds.  The new legislation also adopts a cap on attorneys’ fees of $500 for uncontested cases and $1,000 for contested cases, with judges retaining discretion to award higher fees for more complex cases.

Additional Restrictions and Requirements for Landlords

SB 91 also adopts new rules prohibiting landlords from imposing or collecting late fees for COVID-19 rent debt, as well as prohibiting landlords from increasing fees or imposing new fees for services previously provided for free.  Landlords are directed to apply tenant rent payments to future periods rather than paying off past COVID-19 rent debt, and are also prevented from applying security deposits to pay COVID-19 rent debt.  Landlords and tenant screening services may not use unpaid COVID-19 rent debt as a negative factor in tenant screening, and landlords are prohibited from selling COVID-19 rent debt to collection companies until July 1, 2021.

Impact on Local Eviction Laws

Similar to AB 3088, SB 91 pauses any new local eviction moratoriums passed between August 19, 2020 and June 30, 2021. Those ordinances cannot take effect until July 1, 2021.

Impact on Commercial Evictions

AB 91 does not apply to commercial unlawful detainers, meaning that commercial evictions can occur. However, locally enacted moratoriums may protect certain commercial tenants. For example, Los Angeles County’s eviction moratorium, which applies to both unincorporated County areas as well as incorporated cities in the County without their own commercial eviction moratorium, prohibits evictions for commercial tenants unable to pay rent due to the COVID-19 pandemic. As with many California cities and counties, the Los Angeles County ordinance is limited to small businesses.  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.

Impact of Federal Centers for Disease Control and Prevention Eviction Moratorium

On September 2, 2020 the U.S. Centers for Disease Control and Prevention (CDC) issued a public health order to temporarily stop landlords from evicting residential tenants who provide a declaration that they are unable to pay rent.  Recently extended by a new CDC order, tenants who provide this declaration to their landlord may not be evicted for failure to pay rent through March 31, 2021.  While it is unclear how this law applies to individual cases in California, it may protect tenants who are not covered by the State law.

Impact on Advice and Counsel

SB 91’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.

 

 

U.S. Supreme Court Overturns California’s Ban on Indoor Religious Services but Leaves Open Singing/Chanting Ban

In late Friday evening orders, the Supreme Court on February 5, 2021 issued rulings on applications for injunctive relief in both South Bay United Pentecostal Church, et al. v. Newsom, et al. and Harvest Rock Church, et al. v. Newsom, et al. In a partial victory for the church plaintiffs, the rulings allow for indoor religious services at up to 25% capacity, but SCOTUS did not stop the State’s ability to enforce the singing and chanting ban or the Tiers 2, 3, and 4 occupancy restrictions for indoor religious services under the State’s Blueprint for stopping the spread of COVID-19. Both orders issued limited temporary injunctive relief pending further decisions by the Ninth Circuit or the Supreme Court. South Bay United included several separate opinions, laying out patchwork guidance for lower courts and revealing significant divisions among the Justices. Harvest Rock reached the same conclusion without analysis.

What’s Next for Rulings on Tiers 1, 2, 3, and 4?
Although the injunctions in South Bay United and Harvest Rock are temporary, the procedural posture of these two cases means these orders may be SCOTUS’ last word on the Tier 1 occupancy restrictions before the State may lift them. The Court will be considering the petition for writ of certiorari by April 1, 2021 and, if it is granted, the matter will not be decided on the merits until after briefing by the parties and oral arguments which would push out a final decision until the fall of 2021 or later. However, in the meantime, the Court may have additional opportunities on an emergency basis to examine the singing and chanting ban along with the occupancy restrictions in Tiers 2, 3, and 4 because religious institutions are already moving forward in the district courts with challenges to the ban and occupancy restrictions.

Analysis of South Bay United Opinions

Majority Opinion

  • The four concurring and dissenting opinions provide the only guidance, while the majority opinion simply lays out the Court’s order: the State and San Diego County are enjoined from enforcing the Blueprint’s Tier 1 prohibition on indoor worship, but they may impose a 25% capacity restriction and enforce the singing and chanting ban. The order is without prejudice to the church’s right to submit additional evidence to the District Court in support of the challenge to the singing and chanting ban.

Concurring Opinions

  • Chief Justice Roberts’ concurring opinion reflects the Court’s middle of the road approach. While Roberts notes that “federal courts owe significant deference to politically accountable officials” with expertise in public health, he states that courts are entrusted with protecting the people’s rights, including the right to free exercise. Roberts concludes that the State’s total ban on indoor worship “appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.”
  • Justice Gorsuch’s concurring opinion, joined by Justices Thomas and Alito, states that California “so obviously targets religion for differential treatment” that the restrictions are subject to strict scrutiny analysis. The opinion explains that the State cannot pass this constitutional test because it cannot show that dangers posed by religious services (large number of people mixing, in close proximity, for extended periods, with singing) cannot be mitigated by less onerous restrictions such as plexiglass dividers or limiting the duration of indoor religious gatherings. The opinion notes that train stations, hair salons, and some retail have similar risk factors but are still allowed to operate with restrictions. Justice Gorsuch also notes the record was unclear as to whether the singing and chanting ban is generally applicable or if the State allows the entertainment industry an exception. Finally, Justice Gorsuch challenged the contention that any restrictions were “temporary” in light of the vaccinations that are now underway, arguing that the State has continued to move the goalposts such that the “restoration of liberty [is] just around the corner.”
  • Justice Barrett’s concurring opinion agreed with Justice Gorsuch’s as to the capacity restrictions, but she notes the church failed to meet its burden with regard to the singing and chanting ban and therefore concurred in the denial of the injunction on that issue.

Dissenting Opinion

  • Justice Kagan’s dissent, joined by Justices Breyer and Sotomayor, disagrees with the majority on almost every issue, starting with the standard of review. Kagan notes that the State had demonstrated the restrictions were neutral, because neutrality requires only that similar activity is treated similarly, and the Blueprint treats religious services like other activity where “large groups of people [come together] in close proximity for extended periods of time,” such as political meetings, going to the movies, or dining at a restaurant. Justice Kagan harshly criticizes the majority opinion for its lack of explanation, noting that the opinion “leaves state policymakers adrift, in California and elsewhere” because there is no explanation as to whether the injunction entered is based on the record evidence or “naked judicial instinct.”

Looking Ahead
The Court’s rulings in South Bay United and Harvest Rock follow its decision in a case late last year from New York which barred the State of New York from enforcing certain limits on attendance at churches and synagogues. In a 5-4 decision just before midnight on Thanksgiving Eve, the Court issued its ruling in Roman Catholic Diocese v. Cuomo which stayed the enforcement of restrictions on indoor worship services that capped attendance at 10 or 25 persons in designated geographic zones. The rulings in South Bay United, Harvest Rock, and Roman Catholic Diocese now set a higher bar in order for pandemic-related restrictions on worship services to survive constitutional First Amendment analysis.

On Saturday, February 6, 2021, Governor Newsom’s office issued revised guidelines for indoor church services reflecting the Supreme Court’s rulings in South Bay United and Harvest Rock. The new interim State guidelines limit attendance at indoor services in areas with widespread or substantial virus spread to 25% of a building’s capacity. Indoor services in areas with moderate to minimum spread are limited to 50% capacity. Before the ruling, indoor worship services were banned in purple-tiered counties — those deemed to be at widespread risk of coronavirus transmission.

Shelter In Place Litigation Update: Ninth Circuit Affirms California’s Temporary Restrictions on Indoor Worship Services While Invalidating 100/200 Person Numerical Caps

On January 22, 2021, the Ninth Circuit recently issued its opinion in South Bay United Pentecostal v. Newsom, affirming an order by Southern District Judge Cynthia Bashant denying the church’s motion for preliminary injunction against the State and San Diego County’s restrictions on indoor worship services to slow the spread of COVID-19. The case is the first Ninth Circuit case to directly address a religious group’s challenge to the restrictions as a violation of their First Amendment right to free exercise of religion since the Supreme Court enjoined Governor Cuomo’s restrictions on religious services in New York in Roman Catholic Diocese of Brooklyn v. Cuomo.

The Ninth Circuit addressed the State’s Regional Stay at Home Order (which is now lifted) and the State’s Blueprint color-coded tier restrictions. The Court upheld the temporary prohibition on indoor worship under both the Regional Order and the Purple Tier 1 of the Blueprint, as well as the statewide ban on indoor singing and chanting. However, the Ninth Circuit ordered the District Court to enjoin the 100 and 200 person attendance caps for indoor worship under Red Tier 2 and Orange Tier 3, while allowing the percentage capacity restrictions of 25% and 50% under those tiers to stand.

Then, on January 25, 2021, the Ninth Circuit’s motions panel issued a similar ruling denying an injunction pending appeal in Harvest Rock v. Newsom. Like South Bay United, the appeal was from the denial of Harvest Rock’s motion for preliminary injunction issued by Central District Judge Jesus Bernal. The panel issued an order denying the requested injunction except as to the 100 and 200 person caps in Tiers 2 and 3, citing South Bay United as the basis for the decision.

Key Takeaways

  • Strict scrutiny will apply to free exercise claims so long as the guidelines treat religious worship more harshly than other secular activity. The State argued that the criteria for determining the restrictions was neutral and, therefore, rational basis review should apply. The Ninth Circuit rejected this argument, saying that it was foreclosed by Roman Catholic Diocese of Brooklyn v. Cuomo and that strict scrutiny would apply “whenever a state imposes different capacity restrictions on religious services relative to non-religious activities and sectors.” The Ninth Circuit appeared to shift away from the previous disputes over what the proper comparators were and, instead, applied a broader rule that essentially looks at any and all secular activity as a comparator.
  • A fact-specific analysis will apply to determine whether the restrictions meet the narrow tailoring requirement. In South Bay United, both Judge Bashant and the Ninth Circuit thoroughly analyzed applicable restrictions—in particular as compared to the restrictions applicable to other industries and in light of the specific risks each posed—to determine whether the restrictions on religious services were narrowly tailored. Judge Bashant credited the State’s expert witnesses over the church’s, and the Ninth Circuit emphasized that their review of these factual determinations was subject to the deferential clear error standard of review. The key to successfully opposing preliminary injunctions in similar cases going forward will be marshaling strong expert testimony to support the restrictions.

The Ninth Circuit engaged in a careful examination of the evidence in the record and noted its deference to the district court’s factual determinations. South Bay United and Harvest Rock therefore serve as clear reminders of the importance of building a strong evidentiary record in order to survive the rigorous strict scrutiny rubric.

South Bay United has already filed a petition for writ of certiorari with the Supreme Court, as well as an emergency motion for injunction pending appeal, so it is likely there will be further development on these issues in the very short term.

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 churches, 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 covering developments in litigation related to COVID-19.

Appellate Court Finds Certain State-Mandated Stormwater Permit Requirements Imposed on Local Governments Are Subject to Cost Reimbursement

In Department of Finance v. Commission of State Mandates (“Department of Finance II”), the Second Appellate District of the California Court of Appeal recently held that local governments are entitled to subvention (i.e., reimbursement of costs) for certain stormwater permit trash receptacle requirements under article XIII B, section 6 of the California Constitution (“section 6”) which provides for the reimbursement of costs of any state-mandated “new program or higher level of service.” However, the court also found that these local agencies are not entitled to subvention for stormwater permit inspection requirements because, while such programs are new programs or higher level of service under section 6, in this instance the local agencies have the authority to levy fees sufficient to pay for those permit conditions. Still, the Court’s ruling under section 6 is critical to local governments because state agencies were routinely arguing as a complete defense to stormwater-related test claims that stormwater programs mandated in permits were not new programs or higher levels of service.  According to the Court, “[b]y requiring the local governments to comply with the trash receptacle and inspection requirements, the state agencies have effectively shifted the financial responsibility for such programs to the local governments.”

Department of Finance II is this latest judicial ruling in the underlying action which was initially brought in 2009 and is based on permit conditions that were initially imposed in 2001. The California Supreme Court previously found in Department of Finance v. Commission on State Mandates (2016) 1 Cal.5th 749 (“Department of Finance I”) that the permit conditions at issue were not federal mandates and therefore potentially subject to subvention by the state. The analysis in Department of Finance II is particularly important because it makes it much more likely that the Commission on State Mandates will grant the numerous stormwater test claims currently pending on its docket. Department of Finance II potentially has far-reaching implications as it suggests that many state-mandated permit requirements that cannot be charged to business dischargers may be subject to subvention. In addition to the trash receptacle requirements at issue, these requirements might include trash capture systems and other trash removal programs, green infrastructure requirements designed to reduce pollutant loads into stormwater, public education programs, etc.

The issues in Department of Finance II are complex and have been litigated for more than a decade. To help explain the Court’s detailed and lengthy ruling, Meyers Nave attorneys Greg Newmark and Bryan Brown prepared an analysis of the decision that can be found here. Please contact Greg or Bryan if you have questions about how this case may impact your agency’s interests.

Mandatory vs. Voluntary COVID-19 Vaccination Policies: What California Employers Need To Know

Now that COVID-19 vaccines are gradually rolling out, employers are asking if they can – and should – require employees to get vaccinated and are considering what they can do if employees refuse.

Q: Can employers require employees to obtain COVID-19 vaccinations?
A: Likely yes, but employers must be prepared to accommodate employees with disabilities and religious objections, and comply with applicable meet and confer obligations and collective bargaining provisions.

In its most recent guidance, the U.S. Equal Employment Opportunity Commission (“EEOC”) made clear that an employer can (1) mandate that employees take vaccines and (2) keep unvaccinated employees out of the workplace if the employer determines that the unvaccinated employee poses a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” At the same time, employers must still provide reasonable accommodations and engage in the interactive process with employees who have disabilities and cannot take the vaccine or those with sincerely held religious beliefs in opposition to vaccination.

Q: Should employers mandate COVID-19 vaccinations?
A: While the EEOC Guidance provides a framework under which mandatory vaccination requirements may be lawful, employers still need to carefully consider (1) the benefits, risks and expenses that may accompany a mandatory vaccination policy and (2) whether requiring vaccination is truly necessary.

Employers with unions will be required to comply with applicable memorandum of understanding (“MOU”) provisions and satisfy meet and confer obligations for represented employees in order to mandate vaccinations. Careful attention should be placed on any rules or MOU provisions that may limit the ability to mandate vaccinations or prohibit the ability to change existing terms and conditions of employment without union agreement. All employers should consider that, under applicable wage and hour laws, if vaccines are mandated, the time it takes for an employee to get vaccinated should be treated as compensable work time.  Similarly, any costs associated with getting the vaccine would be reimbursable business expenses.

Q: What happens if many employees refuse to be vaccinated?
A: Employers may be reluctant to discipline or terminate a large number of employees, and equally reluctant to create multiple individual exceptions that may lead to litigation. For example, reports are finding that 10% to 20% of health care workers are refusing vaccination, regardless of whether they have a reason to object based on disability or religion.

For employees with for-cause employment rights, employers need to comply with due process before taking corrective action against employees as a result of a refusal to be vaccinated. Because this is an untested area of law, employers should consult with legal counsel before considering corrective action.

Q: What other issues need to be considered?
A: Many important questions need to be answered, including will the vaccination policy be written? How will the employer collect and protect employees’ vaccination records? What are the risks to employees, the public, customers, or clients if the employer does not mandate vaccination? Would a voluntary vaccination policy be as effective? Can the employer offer incentives to encourage vaccination? Will employers continue to maintain health and safety measures such as masks and social distancing after employees are vaccinated? How should employers handle meet and confer or renegotiating existing MOUs?

Recorded Webinar on COVID-19 Vaccination Policies
Given the complexity of navigating federal and state laws, MOUs, personnel rules, and practical considerations, employers should consult legal counsel before creating and implementing a mandatory or voluntary vaccination policy. Our Labor and Employment Law attorneys are assisting California employers regarding all legal issues related to COVID-19 vaccines. Our team provided a webinar on February 3 to address the myriad COVID-19 vaccination issues, including how employers can meet EEOC requirements, increase workplace safety, and minimize risk.

Reference List
Please see below for a list of articles and links in reference to COVID-19 vaccinations.

2021 Employment Law Update: A Six-Minute Snapshot of What’s New for Employers

In a televised interview with KUSI Good Morning San Diego, Meyers Nave Employment Law Principal Arlene Yang provided a six-minute overview of important employment law changes that impact employers in 2021. Arlene discussed COVID-19 related paid leave laws, questions about mandating COVID-19 vaccines, and the California Family Rights Act, as well as independent contractor laws.

Please click here for Arlene’s interview.

Recorded Webinars: For additional information about important employment law changes for 2021, Meyers Nave provided an Employment Law Update webinar on January 12 for private and non-profit sector employers and on January 14 for public sector employers. Please click here to view the webinars. Both webinars covered the following topics.

  • COVID-19 Health and Safety Issues: COVID-19 notification requirements (AB 685), new Cal/OSHA regulations, workers’ comp changes (SB 1159), and vaccines in the workplace (Law360 recently reported that “in-house legal professionals overwhelmingly cite employment liability as the biggest legal risk they’re facing related to the global health crisis, with many readying themselves for employment litigation they believe is in the pipeline.”)
  • Equity in the Workplace: new pay data reporting requirements (SB 973), new FEHA regulations, and diversity training
  • Compensation and Wage and Hour: amendments to the AB 5 independent contractor law (AB 2257 and Prop. 22), Right of Recall ordinances, and new wage and hour developments
  • Leave, Benefits and Accommodations: expanded leave (SB 1383, AB 2017) and COVID-19 leave (AB 1867)

 

US Department of Transportation Proposes Updated NEPA Procedures Adding Streamlining and Efficiency Measures

The United States Department of Transportation (DOT) recently issued a notice of proposed rulemaking to update its environmental review procedures to include streamlining and other efficiency provisions. The new rules propose a comprehensive update of DOT Order 5610.1C, “Procedures for Considering Environmental Impacts,” which sets forth the agency’s responsibilities and procedures for complying with the National Environmental Policy Act (“NEPA”). DOT Order 5610.1 was issued in 1979 and last updated 35 years ago in 1985. The new proposed rule was issued on November 23, 2020 and public comments are due December 23, 2020.

DOT Policy Alignment
The proposed rule updates DOT’s NEPA procedures to align with current DOT organization, practice and policies. Reflecting congressional declarations of policy, the proposed rule seeks to incorporate into DOT’s NEPA environmental review procedures the streamlining, cost-saving and accelerating provisions of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Fixing America’s Surface Transportation (FAST) Act. The proposed rule also would update DOT’s NEPA procedures in response to the Council on Environmental Quality’s (“CEQ”) recent final rule updating its NEPA procedures, which took effect on September 14, 2020.

Proposed Significant Changes
The proposed new rule streamlines the NEPA process and narrows the scope of federal review. The rule includes the following important changes.

  • Eliminates definitions for “cumulative effects” and “indirect effects”. This is consistent with the recent CEQ final rule where a cumulative impacts section is no longer required in NEPA documents. This change may make it more difficult to challenge projects in court as project opponents often focus on the cumulative effects of projects.
  • Incorporates definitions for “effects”, “impacts” and “major federal action”. The proposed rule incorporates these three definitions from the new CEQ rule. The result is that (1) “effects” and “impacts” would be limited to changes to the human environment that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives and (2) “major federal action” would be modified to mean that non-federal projects with minimal federal funding or minimal federal involvement are excluded from NEPA review.
  • Adds several new categorical exclusions for routine operational activities. The rule also allows DOT sub-agencies to apply the categorical exemptions of another agency which may introduce more flexibility in excluding actions from NEPA review.
  • Sets new time lines. A time limit of one year for environmental assessments (EA) and two years for environmental impact statements (EIS) would be established. Written approval from the Assistant Secretary would be required for additional time.
  • Sets new page limits. The proposed rule includes an EIS page limit of 150 pages (300 pages if the project is complex).
  • Changes supplementation. The proposed rule requires supplementation of a NEPA document only if sufficient federal control remains.
  • Clarifies NEPA policy. The proposed rule declares DOT policy is to use the NEPA process as an umbrella to achieve a single, integrated and concurrent review process for major federal projects.

Next Steps and Outlook for Proposed Rule
Although the proposed rule has not been finalized, the recent CEQ rule is applicable to DOT projects that commenced after September 14, 2020. The proposed DOT regulations may also be challenged in court, like the CEQ rule, which has been challenged by coalitions of environmental organizations. The U.S. Chamber of Commerce and a coalition of business associations have sought to defend the CEQ rule in court and industry groups likely will also support the proposed DOT rule because it streamlines the NEPA process and narrows the scope of federal review. According to media reports, transportation industry experts have cautioned the Biden administration could rescind the new DOT rule.

Public comments to the proposed rule are due by December 23, 2020. This is a short time frame and may represent the current administration’s goal to finalize the rule before the January 20, 2021 inauguration.

Newly Adopted Cal/OSHA Emergency Standards Require Immediate Action by California Employers

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.

SCOTUS Blocks New York’s COVID-19 Limits on Houses of Worship. California is Next for SCOTUS with Harvest Rock Church v. Newsom.

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.

Top 10 Compliance Questions from Special District Board Secretaries and Clerks

Meyers Nave attorneys Richard Pio Roda and Alex Mog recently presented “Staying in Compliance: Understanding Fundamental Special District Laws” at the 2020 California Special Districts Association’s virtual Board Secretary/Clerk Conference. From the questions asked during and after the program, Rich and Alex created a Top 10 Compliance Q&A reference sheet to help keep Special Districts up-to-date on issues that are of greatest concern to Board secretaries and clerks. The information in the Q&A reference sheet is provided as answers to general questions and different factual scenarios may generate different answers. Please consult an attorney to obtain legal advice for your unique situation. If you need legal assistance, please contact Rich (rpioroda@meyersnave.com) and Alex (amog@meyersnave.com).

Click here for the Top 10 Compliance Q&A reference sheet, which answers:

  1. How should public comment be conducted during virtual meetings?
  2. Can Boards vote via email to add urgent items to posted agendas?
  3. Are meetings between Board members and the General Manager subject to the Brown Act? Are there limits on Board members making public comments?
  4. What happens when there is a vacancy on the Board? Can the Board continue to operate normally when a vacancy occurs?
  5. Is the Board held legally accountable to its approved policy or rule?
  6. Are scholarships to attend educational offerings required to be disclosed as gifts?
  7. Do mass mailing restrictions apply to the district and/or an agency supported by the district?
  8. Is the Board liable if Form 700 is filled out incorrectly or incompletely?
  9. Must compensation increases for an Executive Director take place in open session?
  10. What new teleconferencing rules were established in Governor Newsom’s COVID-19 Brown Act Executive Orders signed in March?