Good morning, and welcome to the latest edition of my Monday Morning Briefing, and week two of the war in Ukraine.  My heart and prayers go out to those brave men and women fighting for democracy, their sovereignty, their homes and their freedom.

Back here in California, we did get a piece of good news last week, just days after Los Angeles had issued its complicated Revised Indoor Masking Policy.  California, and even Los Angeles, finally pulled the cord and let the curtain come down on masks – for most of us. 

CALIFORNIA SAYS GOODBYE TO MASKS – EVEN LOS ANGELES COUNTY!

With the number of COVID-19 cases dropping rapidly, the California Department of Public Health (CDPH) updated masking guidance to remove the requirement for unvaccinated individuals to wear masks in indoor settings.   Subsequently, Governor Newsom signed an Executive Order to update the Cal/OSHA ETS to bring it into alignment with the most recent CDPH mask guidance, so that California workers could also go maskless.  That left only Los Angeles County, and late Thursday afternoon, Dr. Barbara Ferrer from Los Angeles Public Department of Health (LADPH) announced that based on the CDC’s new classification of risk levels in Los Angeles, masks would no longer be required in most public settings effective Friday, March 5, 2022.   (Read our client alert here)

Therefore, effective immediately, both vaccinated and unvaccinated individuals are no longer required to wear masks in most indoor settings, including workplaces, in California. 

There are of course, a few exceptions –  the same high risk settings covered under the previous health orders, including public transportation and transportation hubs, correctional facilities, healthcare settings, nursing homes, homeless and emergency shelters.   Dr. Ferrer was also very quick to remind the public that we are all in a transition phase and that while masks are no longer required indoors, they are still highly recommended.   Also, the ETS has always required that employees be provided a mask, including a respirator mask, upon request.  This part of the ETS has not changed. 

Also, nothing has changed with respect to many areas of California still requiring vaccines – Los Angeles City, West Hollywood, and for the state who requires vaccines of certain employees.  Those may well stay in place for a while. 

I was out and about in Los Angeles over the weekend, and depending on where I was, some people are still masking like it’s 2021, others have them off like it’s 1999.   But let’s see how long all this lasts.  Remember, we have been here before.  The last time the mask mandate was repealed in Los Angeles County, that repeal lasted one whole month before the Delta variant hit and the mandate was reinstituted.   I  recommend guarded optimism.  More importantly,  you should continue to make masks available to any employees who may still wish to wear them.   You may well have employees (and patrons!)  who feel more comfortable in masks, and they should never be shamed for or prohibited from doing so.  

BIDEN SIGNS “ENDING FORCED ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT ACT OF 2021”

The day after the State of the Union, President Biden signed the Bill that was passed by bipartisan support that I wrote about a few weeks back.  The signing came without much fanfare and was not even mentioned in the over one hour long SOTU address.  Nevertheless, we have all been waiting for it to be enacted, since both houses of Congress passed it and the Biden administration approved it.  So here we are. 

 As signed, the Act reads as follows: “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct.  The good news is, the “Act shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act.”  So this law applies only to claims or disputes that arise after last Friday, March 4, 2022.   The Act defines the “dispute” as the actual sexual harassment or assault, so arguably, it would be when the harassment itself took place. 

More good news.  The way in which the Act is written implies that an arbitration agreement is made invalid “by the election of the person alleging conduct constitution sexual harassment . . “  In other words, it does not appear that just having an arbitration agreement include “sexual harassment claims” in its covered terms (which we all have done up to now)  invalidates the arbitration agreement.  What that means in plain English is that there is no huge rush to revise all your existing arbitration agreements.  We have already revised our form one to comport with this Act anyway, but it appears that employees will be able to take an existing arbitration agreement that previously intended to include sexual harassment and just bring a lawsuit around it, without jeopardizing the viability of the arbitration agreement for any other matters later.  For any of you who are in the process of having your employee handbook updated, your arbitration agreement will automatically include the new language.  If you have not yet distributed or updated your handbook yet and want a revised one, please contact me.

Now for the possible bad news.  The language of the Act is very brief and simple, but what it does say is that no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute”.    The Act includes the word “case,” not claim.  So does that mean that a plaintiff can bring an entire case, add in 16 causes of action that have nothing to do with sexual harassment,  add in one sexual harassment claim, and then claim the matter must go to a jury trial instead of arbitration?   Let’s hope that plaintiff attorneys use this statute for its intended use, which is to keep sexual harassment  and sexual assault cases out of arbitration, and not ALL employment claims.  Because we all know that plaintiff attorneys and the courts in California would never expand a statute past its original intention in order to favor employees . . would they???

Well, let’s pray that sane heads prevail.  And while you’re at those prayers, keep those courageous Ukrainians in there, too. 

Stay safe without those masks, my friends. 

#StandWithUkraine