Good morning, and welcome to the latest edition of my Monday Morning Briefing.   I don’t know about the rest of you, but frankly, it’s hard for me to focus on anything given what is going on in Ukraine right now.  I am older than most of you, and even I do not have any living memory of a super power invading a neighboring democratic country, and now we have the ability to watch it all play out for us in real time, on the news and on social media.   It puts the whole issue of wearing face masks a bit into perspective. 

And yet, here we are in Los Angeles, dealing with the mundane and tedious details of LA County’s newly revised and long awaited masking policy.  Unfortunately, for many employers, it will not bring the relief they all hoped it would because of all the strings attached.   Due to popular demand, we released a mid-week alert last week, but since I  know many of you didn’t receive it, and even more of you still have questions, I will distill the new Health Officer Order here. For those of you outside of Los Angeles County, please indulge us for a bit, or just read with pleasure and delight in the fact that you do not have to operate in LA County. 

Here is the alert in full in case you did not receive or want another copy for posterity.  

LOS ANGELES ISSUES LONG-AWAITED REVISED INDOOR MASKING POLICY – BUT THERE ARE STRINGS ATTACHED

The new Health Office Order (HOO) went into effect last Friday, February 25, 2022, and revised the previous Order enforced by Los Angeles Department of Public Health (LADPH).   To summarize, the HOO talks about two options available for businesses who wish to allow their employees and customers to go maskless.  However, only one option applies to the workplace.  Simply put, in order to allow the “fully vaccinated” employees to go without a mask, one of two things must occur.  Either (a) all employees need to be fully vaccinated (although fully vaccinated need NOT include a booster),  OR, (b) the unvaccinated employees need to receive a negative COVID test every three days (paid for by the employer) AND must still wear a mask. 

Bottom line: If unvaccinated employees do not get tested every three days, ALL EMPLOYEES (including fully vaccinated employees) must keep wearing masks in the workplace. 

If the business has customers, under this option #1, in order for the full vaccinated employees to go maskless, customers would also have to be fully vaccinated or show proof of a negative COVID test as well.  

I was in restaurants and stores this weekend, and it is clear that most people are confused because there are a lot folks walking around without masks, and no one was asking about vaccination status.  Now, I did go into a restaurant in West Hollywood (happened to be a client of mine), and they allowed us to be without masks.  Rightly so, because all of the patrons and employees have been fully vaccinated in WeHo for some time.  But unless that is the case, not much will change in most locations.  I doubt many establishments will start checking the vaccination status of their guests if they have not yet done so.

The big question will be for employees.  If you have just a handful of unvaccinated employees in your office or warehouse, for example, what will you do?  Will you now require all your employees to be vaccinated?  Will you pay for tests for the handful that are not?  Or will you still require the majority of your vaccinated staff to wear masks, knowing in theory they might not otherwise have to? 

As all of you Los Angeles County employers work through this new HOO, please contact us if you have any questions about the details or if you do decide to implement a company-wide vaccination policy. 

A REMINDER TO PAY OUT ACCRUED VACATION WHEN YOUR EMPLOYEE GOES ON LEAVE

I know I am going to get calls and emails on this one, but I make notes to myself to write about topics as they come up in the course of my practice for clients.  This issue has now come up recently on a few different occasions.  Let’s talk about accrued vacation pay, which I want to discuss in more specific situations.  That is, when an employee goes out on a worker’s compensation or other long term medical leave of absence.  

For some reason, most employers don’t think or don’t choose to pay out paid time off when their employees go out on a worker’s compensation leave of absence.  I imagine the thinking is that this is money reserved for a true “vacation,” and the employee certainly doesn’t want to use that money to get paid, sitting at home, when they may want to reserve it to go to Fiji when they return.  Of course, in many cases, the employee never comes back, and that money just winds up sitting there, in the employer’s bank.  Sometimes for years.  What is the harm in that?

The harm is this: many of these employees do not return.  These days, the worker’s compensation carrier settles the case and the employee agrees to “resign.”  I am not sure when this practice started, but this is what has been happening for the past several years now.  Most employers are fine with this.  One small detail – most of the time, you, as the employer, are not told about the “resignation” in real time.  So now, you have vacation pay that is sitting there, not paid to your terminated employee.

NOW you know what the harm is!  A little bell should be ringing.  You have an employee who has separated your company who has NOT gotten all of their final wages! And that clock is ticking – tick, tick, tick.  Every day that goes by that you do not get them that vacation pay check, you owe them a FULL DAY OF WAGES, up to 30 days.  Those are waiting time penalties, under the Labor Code.  Not a month, THIRTY DAYS.  Just because no one told you that this employee was officially terminated.  Oh, and by the way, did you take that employee off COBRA? (hopefully you did that a long time ago, too). 

Pay out vacation benefits to employees on leave.  You are permitted to do so to employees on all medical leave, including FMLA/CFRA, except employees on Pregnancy Disability Leave.   That is the only leave where you cannot mandate that employees get paid their vacation pay (although you can always ask them if they want it).  But I am not worried about employees going out an indefinite pregnancy leave.  Thankfully, pregnancies do not go on indefinitely (those of us who have been pregnant can say that). 

That’s it for this week’s Briefing.   Stay safe, my friends.  #StandWithUkraine