MICHAEL SULLIVAN & ASSOCIATES BLOG

Date & Time: June 14th, 2023 - 11:00 AM - 12:00PM
Register at: msa.news/06-14-23-webinar

California employers are not strangers to the ever-evolving minefield of compliance exposure under our unique employee-friendly state laws. Join employment law trial attorney Eric De Wames on June 14th, for an attorney’s perspective on key trends and common pitfalls in the wage and hour world. Get up to speed on the latest trends and strategies to avoid litigation exposure and defend claims when they arise. Attendees will obtain insights on pros and cons to arbitration agreements, PAGA action trends, and compliance suggestions to avoid exposure.

Space is limited, so register today!

PIHRA's 2023 California HR Conference was a resounding success! It was great to spend time with our valued clients, co-workers, and colleagues.

MS&A Managing Partner, Eric De Wames, and PIHRA President, Tara Fournier, presented the latest installment of their ongoing session "Building Airplanes in Flight (episode 9)" on Day 2 of the conference. Their session was a crowd favorite, offering insights into creating a healthy workplace environment while maintaining compliance with California's strict employment laws. MS&A's Happy Hour at Gladstone's was another highlight of the conference. Thank you to everyone who joined us and made it such a memorable evening! Thanks as well to those who stopped by our booth to say hello and learn more about the firm. We hope we’ll see you in the fall at PIHRA’s CELU23!

California Gov. Gavin Newsom has ended the COVID-19 state of emergency in California. While it was in effect, however, the workers' compensation system was subject to numerous changes and disruptions. The Workers' Compensation Appeals Board (WCAB) moved toward remote hearings, and Gov. Newsom issued an executive order extending specified time limits established in the Labor Code and administrative regulations.

Generally, an employer must deny a claim within 90 days to avoid a presumption that it's compensable. Labor Code 5402(b)(1) states, "If liability is not rejected within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division." Once the presumption attaches, it can be rebutted only by evidence that could not have been obtained with the exercise of reasonable diligence within the 90-day period. (SCIF v. WCAB (Welcher) (1995) 60 CCC 717.)

On February 3, 2023, Cal/OSHA’s COVID-19 Non-Emergency Standards was approved and became effective. The Non-Emergency Standards will remain in effect until February 3, 2025, and can be found at https://www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Non-Emergency-apprvdtxt-oal.pdf.

The Non-Emergency Standards relax several previously mandatory requirements and have modified some important definitions.

The following are changes employers need to be aware of and implement.

In represented cases in which a panel of qualified medical evaluators (QMEs) is required to resolve a disputed issue, Labor Code 4062.2(c) states, "Within 10 days of assignment of the panel by the administrative director, each party may strike one name from the panel." Pursuant to Messele v. Pitco Foods, Inc. (2011) 76 CCC 956 (appeals board en banc), it has been well recognized that the mailbox rule applies to that process. So, when a QME panel is served, a party generally is given 10 days from the assignment of it, plus five days for mail, to strike a name from the panel.

2023 marks the end of COVID-19 emergency regulations and the implementation of permanent COVID requirements. While several of the new 2023 laws relate in some way to COVID, businesses can expect a return to more non-COVID related requirements. Employers must implement wage transparency policies and implement an expansion of CFRA and sick leave policies by expanding the definition of family member to include a non-blood related individual. To avoid retaliation claims, employers must be aware of additional protected activities included those related to reproduction and fertility and employees’ right to leave the workplace during natural disasters and emergency conditions. Finally, bereavement leave has been expanded and, for larger employers, new privacy requirements must be implemented.

Cal/OSHA Guidance Applicable to Employers Subject to the ATD

As monkeypox (MPX) continues to be an issue throughout California, Cal/OSHA issued guidance to assist in protecting employees. This guidance applies only to workplaces covered by the aerosol transmissible diseases (ATD) standard so, for now, employers not subject to the ATD are not required to follow these recommendations. See the guidance here.