COVID-19 Prevention Emergency Temporary Standards

CAL/OSHA ETS Revisions

The third readopted version of Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (ETS) has been approved by the Office of Administrative Law and is scheduled to remain in effect through December 31, 2022.

For information about revisions effective May 6, 2022, click here: What Employers Need to Know.

American Rescue Plan Act

The American Rescue Plan Act (Act) was signed into law on March 11th. Employers should be aware of significant provisions contained in the Act that relate to workplace policies and practices. A summary of some key points is provided below.

Extension and Expansion of Paid Leave Availability and Payroll Tax Credits

The American Rescue Plan Act allows employers to continue to offer the paid leave provisions created by the Family First Coronavirus Response Act (“FFCRA”) through September 30, 2021.

The FFCRA, enacted into law on March 18, 2020, required covered employers (e.g., most private employers of less than 500 employees and public employers) to provide employees with paid leave for qualifying COVID-19 related absences through December 31, 2020. The FFCRA also made tax credits available to employers that provided paid leave pursuant to the requirements of the FFCRA.

The Consolidated Appropriations Act, 2021, enacted in December 2020, permits employers to voluntarily continue to offer the FFCRA paid leave provisions to employees who had not exhausted their leave entitlements before December 31, 2020 through March 31, 2021. Employers that chose to continue the paid leave provisions can also claim tax credits up to the amounts permitted for corresponding payments made through March 31, 2021.

New Allotment of Paid Sick Leave – Pursuant to the American Rescue Plan Act, employers can voluntarily offer employees a new allotment of up to 80 hours (10 days) of qualifying paid sick leave and claim corresponding tax credits.

Eliminates Requirement that First 10 Days of Expanded Family and Medical Leave be Unpaid – The American Rescue Plan Act eliminates the requirement that the first 10 days of paid expanded family and medical leave be unpaid. The first two weeks of paid expanded family and medical leave (which were unpaid under the FFCRA) can now be paid at 2/3 of the employee’s regular rate of pay, increasing the maximum amount and tax credit limit for paid expanded family and medical leave from $10,000 to $12,000 per employee.

Additional Reasons for Paid Leave Available – The American Rescue Plan Act also creates additional bases for paid sick leave. An employee can be eligible for paid leave if the employee is:

1. absent from work to receive a COVID-19 vaccine;

2. recovering from complications related to receiving a COVID-19 vaccine; or

3. awaiting the results of a test or potential diagnosis for COVID-19.

Disqualification from Receipt of Payroll Tax Credits for Discrimination or Retaliation – Under the American Rescue Plan Act, employers are not eligible to receive payroll tax credits if they discriminate in providing leave or fail to comply with the anti-retaliation provisions and requirements of the FFCRA.

Employee Retention Credit – The American Rescue Plan Act extends and expands availability of the employee retention credit established by the Coronavirus Aid, Relief, and Economic Security Act and extended by the Consolidated Appropriations Act of 2021 for qualifying wages paid to employees through the end of 2021.

What Employers Should Do

The American Rescue Plan Act contains a number of other provisions aimed at helping employers, displaced employees and individuals struggling to meet the challenges created by the pandemic.

Employers should contact legal counsel for assistance in understanding legal requirements and strategies to meet compliance obligations.

We Can Help

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2021 Employee Handbook Update – 25% Discount

How It Works

If you have an employee handbook, our California employment law attorneys can review your current handbook – all policies will be updated to reflect current laws, outdated and inapplicable policies will be deleted and new, required policies will be added.

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Contact us at or (858) 376-7737.

2021 Employment Law and HR – What You Need to for 2021

Your End of 2020 Checklist:

▪  Employers of 5 or more employees must ensure all employees and supervisors complete the required amount of harassment prevention training by January 1, 2021.

▪  Learn what new and updated laws require now and what is required beginning on January 1, 2021.

▪  Create 2021 employee handbook.

▪  Update/create forms and prepare for new required processes and procedures.

▪  Have legal counsel review policies, procedures and forms to ensure compliance.

▪  Post required notices and posters.

▪  Much more!

We can help!

The Law and Management Resource Center has been helping employers comply with federal, state and local requirements, protect their businesses and employees and save money for nearly 15 years!

Here’s an example of the type of reviews we receive…

Contact us at or (858) 376-7737.

California Harassment Prevention Training Requirements are Still in Effect

For Many Businesses with 5 or More Employees, All Employees and Supervisors Must Complete Training by January 1, 2021

We know 2020 has already been difficult enough for employers and employees.

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• Individuals can complete training at their own pace.

• Start, pause and pick-up where stopped feature included.

• Completion of training is tracked for employers.

• Qualified trainers – our attorneys meet the qualification requirements established by California law.

• Certification – both attendees and their employers receive certificates of completion demonstrating compliance with the law.

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4th of July Discount – Employment Law and HR Consultation

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Unlimited Virtual Employment Law, Human Resource and Business Management Consultation – All clients enrolled in one of our affordable consultation plans receive employment law, human resource and management advice and counseling from our staff of experts. Clients call or email our in-house, licensed California attorneys and human resource and MBA consultants as often as they need to for answers to questions and strategic advice.

No Hourly Fees and No Time Limits – There is no limit on the number of times consulting service clients can call or write during the year and no time limit on how long clients can talk with our team of experts. Clients never have to worry about calling or writing too much – we want our clients to get all the help they need!

We know you have questions in these unprecedented times. The law is constantly changing and you need to be able to focus on the success of your business while keeping yourself and your family healthy. Whether you have questions about the new leave laws, layoffs, employees working remotely, or more, we can help.

Our solutions let you focus on what you do best – while we take care of the rest!

About Us

The Law and Management Resource Center (LMRC) is an employment law, human resource and business management consulting and training firm. LMRC works with human resource professionals and representatives of businesses and organizations of all sizes and industries.

A Professional Team You Can Trust – Includes Experienced California Attorneys!

Our employment law and human resource services are provided by in-house, licensed California employment law attorneys who are also experienced human resource executives. California laws are unlike any other, which is why it’s imperative to not just work with an attorney, but with a California attorney.

While our attorneys possess years of courtroom experience, our goal is to help keep our clients out of court through strategic counseling, education and information. Our consultation services are not provided as a feeder to a litigation department.

Help with business management needs is fulfilled with the additional expertise and knowledge of an MBA consultant.

California businesses do business with us because they know . . .

education and information help prevent litigation and promote success in an organization

Our Remote/Virtual Services

LMRC can be your remote/virtual HR department or an essential resource to your current staff of HR professionals. We offer affordable annual consultation plans, online and in-house training (including harassment prevention, employment law, management skills), document drafting and review (including employee handbooks, contracts, forms and policies) and hourly and project-based HR department and business management services.

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COVID-19 Antibody Testing of Employees in California

COVID-19 Antibody Testing of Employees

covid 19 antibody testing employees california

According to recent regulatory guidance issued by the Equal Employment Opportunity Commission (EEOC), employers are prohibited from mandating that employees take a COVID-19 antibody test prior to returning to work. The EEOC guidance states that mandating such testing would violate the Americans with Disabilities Act (ADA). The EEOC regulatory guidance pertains to antibody or serology tests to determine whether a person was infected with COVID-19 (regardless of whether they are asymptomatic) and have developed antibodies to the virus.

This EEOC regulatory guidance coincides with a recent policy directive issued by the Center for Disease Control and Prevention (CDC) which stated that antibody testing should not be used to determine if an individual is immune to COVID-19 and/or to make a decision to allow workers to return to their worksite.

In issuing the regulatory guidance, the EEOC stated that requiring employees to submit to a COVID-19 antibody test prior to returning to the workplace would violate the ADA since antibody testing under the ADA constitutes a medical examination. Furthermore, the EEOC stated that such mandated antibody testing would not be exempt under the ADA’s “job related and consistent with business necessity” exemption which allows medical exams or inquiries of current employees.

This recent regulatory guidance overturns a prior guidance issued by the EEOC in which it had stated that employers were permitted to administer COVID-19 viral tests to employees prior to allowing them to return to work in order to determine if the employees were actively infected with the virus.

In overturning its prior regulatory guidance, the EEOC stated that antibody and viral tests are separate and distinct types of tests and that viral tests are permissible while antibody or serologic tests are prohibited under the ADA because the CDC has concluded that antibody testing has certain limitations, including the potential for false positives and a lack of data regarding whether the presence of antibodies validates the immunity of a person to COVID-19 for a period of time.

Employers are advised to continue to monitor guidance on this topic, as the EEOC has stated it may adjust its regulatory guidance on this issue as it continues to monitor recommendations issued by the CDC.               

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Affordable Online Discrimination and Harassment Prevention Training in California

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The Law and Management Resource Center (LMRC) is an employment law, human resource and business management consulting and training firm. LMRC works with human resource professionals and businesses and organizations of all sizes and industries. LMRC offers affordable annual consultation plans, training (including harassment prevention, employment law, management skills, interviewing and presentation skills), document drafting and review (including employee handbooks, contracts, forms and policies) and hourly and project-based HR department and business management services.

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Legal Concerns Due to COVID-19 in California





Employers should prepare for an increase in litigation and proceed with diligent attention to compliance with employment practices required prior to the COVID-19 pandemic and new requirements arising out of the pandemic. Following is a review of some of those practices.

Exempt Employee Pay and Status Requirements

In response to the pandemic, many employers furloughed and laid off employees. A practice employed by some employers has been to ask exempt employees to work reduced schedules (e.g., working every other week, working less days each week, working less hours each day).

Work During Time Off

In some instances, exempt employees are asked to perform some work during time off. In other instances, employees unilaterally decide to perform some work during time off to ensure responsibilities are met without interruption. Employers must be mindful of the requirement that an exempt employee receive a full week of pay if the employee works any part of a work week – any part at all! A failure to provide timely payment can also result in penalties, and they can add up quickly! Thus, it is vital to ensure that no work is performed by an exempt employee in a work week during which the employee is supposed to be on furlough. Employees should be aware that working while furloughed can also impact unemployment benefits.

Reduced Salaries

With less or no revenue for months, some employers may have reduced or considered reducing the salaries of exempt workers. It is essential that the salaries of these workers continue to meet the minimum required thresholds, however, for an employer to continue to classify and treat these employees as exempt.

Exempt Job Duties

Another common practice undertaken by employers during the pandemic has been to expand the job duties of exempt employees to ensure work typically performed by workers who were furloughed or laid off still gets done. Employers should be reminded of job duty tests that must be met for exempt employees to be classified as exempt (e.g., more than 50 percent of the employee’s time must be spent performing exempt duties). It is important that employers ensure that modified and/or additional duties do not reduce the overall duties to be performed by the employee below the “more than 50%” threshold, for this could jeopardize the employee’s exempt status. In addition, as a result of an employer laying off or furloughing employees, individuals classified as exempt under the executive exemption may no longer be customarily and regularly directing the work of two or more other employees. Changes may be required and those employees may need to be reclassified and treated as nonexempt employees.

Overtime Calculations – Hazard Pay, Bonuses and Incremental Pay Increases

Some employers have provided nonexempt employees with hazard pay, bonuses or incremental pay increases to reward workers reporting to work during the pandemic. It is important for employers to consider the implications these pay increases might have with respect to overtime pay, as various forms of additional pay that may be provided to a nonexempt employee must be included in the calculation of any overtime pay.

Remote Work

Stay-at-home orders forced many employers seeking to continue operations to rework how their employees work. Many employees are now working from home. The fact that an employee is working from home does not change an employer’s responsibilities to comply with employment laws, including laws relating to wages, proper record maintenance, workers’ compensation coverage and other required benefits.

Employers must also comply with local ordinances that cover individuals performing work within certain geographic parameters. For example, employees working from home may be entitled to higher hourly wages and increased paid sick leave as a result of their home being located within an area covered by a city ordinance. Failure to provide wages in compliance with these ordinances could lead to claims for unpaid wages, penalties and more.

Employers must also be certain to reimburse employees for expenses incurred in the performance of work at home. California Labor Code Section 2802 requires that an employer indemnify an employee “for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties…”

Employees must also comply with notice requirements applicable to remote workers.

Documentation and Recordkeeping Requirements

With new laws come new requirements related to documentation and maintenance of records. It’s important to know what documents are required, which documents must be provided, which ones cannot be requested and for how long records must be kept.

COVID-19 Screening

To prevent the spread of the Coronavirus, employers are screening employees for COVID-19 symptoms prior to employees entering the worksite. Employers should be aware that time spent by employees awaiting screening and during the screening should be treated as compensable time. Claims for unpaid work time and penalties could be just around the corner! The likelihood of claims being filed under the Private Attorneys General Act (PAGA) through which an employee can file claims on behalf of other employees significantly increases the risks of noncompliance, too.


Employers must also be aware of the potential for claims of discrimination. Although COVID-19 is not necessarily a covered disability because it is transitory in nature, an employer could still be held liable for discrimination if it fails to engage in the interactive process required by laws enacted to prevent disability discrimination. Employers must not overlook this obligation. The law leaves no room for automatic assumptions or denials.

Age, race and gender discrimination claims may also be filed by individuals who have lost employment.

Workers’ Compensation, Negligence, Gross Negligence, Retaliation, Wrongful Termination and More

Employers should also be attentive to preventing other potential claims, including:

  • workers’ compensation claims if employees become infected with COVID-19;
  • claims alleging negligence of gross negligence, and failure to take necessary steps to protect employees and customers from exposure to COVID-19; and
  • claims of retaliation and wrongful termination by employees who refuse to report to work because of fear of exposure to COVID-19 at the workplace.

The List Goes on . . . So, Buckle Up your Legal Seatbelt

The Road to the Courthouse is Winding and It’s Getting More and More Crowded!

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