Stokes Wagner Quarterly Legal Update

CALIFORNIA UPDATES 19 Cal-OSHA Adopts Revisions required to socially distance to COVID-19 Emergency themselves. » In most settings, employers Temporary Standards in the may allow fully vaccinated Workplace employees to not wear face coverings indoors but must On June 17, 2021, the Cal- document their vaccination OSHA Board voted 5-1 to adopt status (see below for its proposed revisions to its details). Emergency Temporary Standards » Fully vaccinated employees (ETS), which much more closely without symptoms do align with the CDC guidance. not need to be tested or That same day, Governor Gavin quarantined after close Newsom signed an Executive contact with COVID-19 Order enabling these rules to cases. go into effect immediately. The » Employers must provide revised ETS, among other things, unvaccinated workers with allows fully vaccinated workers N95 masks or respirators to discontinue mask usage and upon request. social distancing. » Employers may not retaliate against employees who What changes under the wish to continue wearing revised ETS? face coverings. » Except during outbreaks, » Regardless of vaccination no physical distancing status, no face coverings are or barriers are required, required outdoors (except regardless of vaccination during outbreaks). status. » Restaurants and bars may » Unvaccinated workers (or return to full capacity. workers who decline to » Employers must evaluate provide their vaccinated status) still need to wear masks indoors except when they are alone in a room or are eating or drinking, in which case they are still STOKES WAGNER QUARTERLY UPDATE - JULY 2021

CALIFORNIA UPDATES 20 ventilation systems to • Make testing available maximize outdoor air at no cost on a weekly and increase filtrations basis for employees in efficiency. the exposed work areas and exclude positive What requirements from the cases from work until November ETS remain the same? the workplace no longer qualifies as an outbreak. » Employers must create and maintain an effective • All employees in written COVID-19 Prevention the exposed group, Program and response plan regardless of for cases and outbreaks. vaccination status, must wear face coverings » Employers must provide when indoors or when effective employee training outdoors and less than on the prevention plan and six feet from another their rights under the ETS. person. » After potential exposures, • Implement social employers must offer distancing and barriers. testing. » Major Outbreak (twenty or » Employees may still be more COVID-19 cases within eligible for quarantine and a 30-day period) exclusion pay. • Make testing available at no cost at least twice » Outbreaks must be reported weekly for employees in to public health departments the exposed work areas and employees. and exclude positive cases from work until no Additional employer new cases are detected responsibilities during for a 14-day period. • Offer respirators or outbreaks » Outbreak (three or more COVID-19 cases within a 14- day period) STOKES WAGNER QUARTERLY UPDATE - JULY 2021

CALIFORNIA UPDATES 21 N95 masks to all vaccination status of employees, employees, regardless providing the following three of vaccination status. options: • Implement social distancing and barriers. 1. Employers may retain a • Consider halting all or copy of the vaccine card; part of operations to control the virus. 2. Employers may inspect the » Fully vaccinated employees vaccine card and maintain do not need to be excluded a separate record of from the workplace unless employees who presented they develop symptoms, proof (but not retain the in which case they are to vaccine record itself); or be excluded the same as unvaccinated employees. 3. Employers may permit » ETS does not require an employees to self-attest, employee to have a negative and the employer maintains test to return to work. a record of who self-attests. Vaccination Documentation Employees have the right If an employer permits fully- to refuse to disclose their vaccinated employees to work vaccination status to an employer, indoors without a face covering, in which case employers will it must document the vaccination treat them as unvaccinated. status of its employees. An Employers must maintain these employee is fully vaccinated records confidentially and two weeks after receiving the must have them on file for any second shot of Moderna or Pfizer employee who will be taking vaccines or two weeks after the advantage of the new rules. Johnson & Johnson vaccine. Alternatively, employers may require all employees to wear a The Department of Industrial face covering instead of having a Relations (“DIR”) has issued documentation process. guidance on how to document the For more information and continued updates, please see the DIR’s FAQ page here. - C. Tantoy & M. Hernandez STOKES WAGNER QUARTERLY UPDATE - JULY 2021

NEW YORK UPDATES 22 New York Paid Family Leave Eligible employees may take PFL to (1) bond with a newly born, New York Paid Family Leave adopted, or fostered child, (2) (“PFL”) is an insurance program care for a family member with a that is fully funded by employees serious health condition, or (3) through payroll deductions. The assist loved ones when a spouse, current contribution is .511% of domestic partner, child or parent an employee’s gross wages each is called to active military service pay period, with a maximum abroad. In addition, Governor annual contribution of $385.34. Andrew Cuomo signed a law in April 2020, expanding the use In 2021, eligible employees can of PFL to situations where the take up to 12 weeks of PFL. When employee or their minor child is taking PFL, employees will get under an order of quarantine or 67% of their average weekly isolation due to COVID-19. More wage, up to a maximum weekly detail on COVID-19 PFL can be benefit of $971.61. The maximum found here. weekly benefit is equal to 67% of the Statewide Average Weekly To request leave, employees Wage of $1,450.17. should provide 30 days’ notice to their employer, if foreseeable. - Y. Ricardo Employees who may be eligible for PFL include employees who work for a private employer in New York State or a public employer who has opted in. To be eligible, employees must work full-time, meaning regularly work 20 or more hours per week, after 26 consecutive weeks of employment, or part-time after 175 working days. STOKES WAGNER QUARTERLY UPDATE - JULY 2021

WASHINGTON D.C. UPDATES 23 competitor during and after their employment. Washington, D.C., Ban on The Act contains an anti- Non-Competes retaliation provision providing that employers cannot retaliate On January 11, 2021, Washington, or threaten to retaliate against an D.C., Mayor Muriel Bowser signed employee for: (i) refusing to agree into law the most expansive ban to a non-compete; (ii) failing on non-compete provisions in the to comply with a non-compete nation. The Ban on Non-Compete or policy made unlawful by the Agreements Amendment Act Act; (iii) asking, informing, or of 2020 (the “Act”) prohibits complaining about the existence provisions in employment or validity of a non-compete agreements that restrict any provision or policy that the employee from working for a employee reasonably believes competitor during and after their is prohibited by the Act; or (iv) employment. Any non-compete requesting information required entered into after the Act’s to be provided by the employer effective date is now void and to the employee. unenforceable. Notably, the Act does not include The Act broadly defines a non- compete as a “provision of a a minimum employer size written agreement between an employer and an employee requirement. Rather, employers that prohibits the employee from being simultaneously or are defined as “an individual, subsequently employed by another person, performing work partnership, general contractor, or providing services for pay for another person, or operating subcontractor, association, the employee’s own business.” This effectively means that an corporation, or business trust employer cannot restrict an employee from working for a operating in the District, or any person or group of persons acting directly or indirectly in the interest of an employer operating in the District in relation to an employee, including a prospective employer[.]” Likewise, the Act applies to every employee STOKES WAGNER QUARTERLY UPDATE - JULY 2021

WASHINGTON D.C. UPDATES 24 (with the exception of certain and laws to potentially make way volunteers, lay members, medical through the legislature. specialists, and babysitters) working within the District, - J. Santos regardless of income. Employers must also provide notice of these new provisions to employees under the Act. This notice must be provided within 90 days of the Act’s effective date, 7 days after an individual becomes an employee of the employer, and 14 days after an employer receives a written request from an employee. Lastly, the Act creates a private cause of action for employees. The Mayor may also assess an administrative fine between $350-$1,000 for each violation. The Act is now the broadest ban on non-compete in the nation and may influence states and other localities to follow suit. Employers in D.C. should take immediate steps to ensure their employment agreements are in compliance and notice has been provided to employees in order to avoid potentially steep administrative penalties and lawsuit damages. Additionally, employers in other states should be on alert for similar lobbying STOKES WAGNER QUARTERLY UPDATE - JULY 2021