In addition to the Dynamex ruling handed down by the California Supreme Court in 2018 (and the related fallout, including the passage of Assembly Bill 5 (AB5), Assembly Bill 2257, and the passage of Proposition 22 to exempt ride-sharing services such as Uber and Lyft from the new employee classification test), California employers are more than ever being impacted by California’s highest court. Here are four cases currently pending before the California Supreme Court that employers should keep an eye on.
Mandatory COVID-19 Vaccines Pose Potential Pitfalls for Employers
During President Trump’s speech at the Republican National Convention on August 28, 2020, he promised a COVID-19 vaccine “by the end of the year, or maybe even sooner.” This raises the question of whether or not an employer may require mandatory COVID-19 vaccinations of its employees to avoid infecting other employees, if and when a vaccine becomes available. Subjecting employees to mandatory COVID-19 vaccines could expose the employer to potential lawsuits. As an example, several months ago, a North Carolina nurse filed a lawsuit accusing a hospital of firing her for refusing a mandatory flu shot. The similarities between a mandatory influenza vaccine and a mandatory COVID-19 vaccine cannot be ignored. These issues will likely implicate the Americans with Disabilities Act (42 U.S.C. § 12101, et seq. (“ADA”)) and Title VII (42 U.S.C. § 2000e) which are both enforced by the U.S. Equal Employment Opportunity Commission (“EEOC”). The ADA and Title VII apply only to employers with 15 or more employees. Under California laws such as the Fair Employment Housing Act (“FEHA”), which makes it unlawful for an employer (with 5 or more employees) to discriminate against or treat an employee less favorably based on protected categories such as disability, employers may be required to provide reasonable accommodations unless doing so would cause undue hardship. Accommodations may include allowing employees to wear a mask or providing a transfer to a different employment position with less public exposure.
What the Repeal of AB5 and Enactment of AB2257 Means for California Employers
By now, most California employers are familiar with the new California “ABC test” to determine if workers are employees or independent contractors. This ABC test was first introduced in April 28, 2018, when the California Supreme Court issued its decision in Dynamex Operations West, Inc. v. Superior Court 4 Cal.5th 903 (2018) (“Dynamex”), which changed from the Borrello multi-factor test to the ABC test for employee classification under the California wage orders adopted by California’s Industrial Welfare Commission (“IWC”) that regulate the wages, hours, and working conditions of certain industries and occupations. In September 2019, Governor Newsom signed into law what was known as Assembly Bill 5 (“AB5”), which codified the Dynamex decision, expanded the ABC test to all provisions of the California Labor Code, Unemployment Insurance Code, and Wage Order claims, and added in a number of different industry-based exemptions. AB5 became effective on January 1, 2020 as Labor Code Section 2750.3, and since that time employers across the state have been scrambling to restructure their businesses to comply.
What Do San Diego Employers Do If an Employee Has or Is Likely to Have COVID-19?
Since May 2020 when California Governor Newsom approved San Diego County to move quicker through Stage 2 and Stage 3 of its re-opening plan, more employees are returning to the workplace. However, beginning in June 2020, San Diego County has also seen an increase in the number of COVID-19 outbreaks. What does this mean for San Diego employers, and how should they respond if an employee is likely to have or has COVID-19, or has had close contact with someone who has or is likely to have COVID-19?
