Cal/OSHA is reminding all employers to protect their outdoor workers from heat illness, especially those not accustomed to working in high heat conditions. Employers need to ensure workers are drinking plenty of water and taking breaks in the shade as temperatures rise across many regions of California. The National Weather Service is forecasting unusually high temperatures throughout the state, which will remain high for the rest of this week and into next week.
Cal OSHA is reminding all employers to protect their outdoor workers from heat illness, especially those not accustomed to working in high heat conditions. Employers need to ensure workers are drinking plenty of water and taking breaks in the shade as temperatures rise across many regions of California. The National Weather Service is forecasting unusually high temperatures throughout the state, which will remain high for the rest of this week and into next week. California rules are very clear on how employers must protect their workers from heat illness.
Cal OSHA's goal is to prevent deaths and serious illnesses and injuries caused by exposure to heat." Special attention must be given to new employees who have not been acclimatized to working under hot conditions, as they are particularly vulnerable to heat illness. They must be monitored carefully for signs of heat illness and should, if possible, be allowed to begin work earlier in the day when the temperature is lower or gradually work up to a full schedule. Many regions of the state will be reaching temperatures in the triple digits. When temperatures reach 95 degrees or above, employers are required to implement high heat procedures to ensure outdoor workers are protected.
Procedures include effective monitoring of all workers through methods such as a mandatory buddy system for workers or regular communication with workers who work alone. California's Heat Illness Prevention Standard requires employers to train workers on the signs and symptoms of heat illness, provide shade when temperatures exceed 80 degrees, develop emergency response procedures and train workers on how to execute those procedures when necessary. Cal OSHA inspects outdoor worksites in agriculture, construction, landscaping, and other operations throughout the heat season.
A written Injury and Illness Prevention Program is required for employer who have more than 10 employees. Documented Heat Stress training is required regardless of employee size.
If you should have any questions, please contact us 925-556-4404.
In Valdivia v. Township High School District 214, a secretary claimed her coworkers made derogatory remarks about Hispanic students and their families. She allegedly complained but nothing was done. After expressing concern over whether she could continue working while in frequent distress, she was allegedly told that she needed to decide whether she wanted to continue working or resign. The employee reportedly also told the principal that she was overwhelmed, not sleeping, not eating, and losing weight but she was again given the option of working or resigning. Ultimately the employee resigned for medical reasons.
In addition to claiming a hostile work environment, the employee claimed that the school interfered with her FMLA rights by failing to provide her notice that she had the right to take job protected leave. The Court noted that the FMLA notice requirement for employees is "not demanding." In fact, it may be possible that the employee is not even aware he/she is suffering from a serious health condition. In these cases, "clear abnormalities in in the employee's behavior may constitute constructive notice of a serious health condition." The school argued that it was not reasonable to be held accountable for knowledge of the employee's health condition when she was not even aware of it. The employee was diagnosed with depression after her termination. The Court dismissed that argument and noted that uncharacteristic or unusual conduct at work may itself provide adequate notice of a serious health condition.
Employers often struggle with how to address situations involving changes in an employee's condition or conduct. Failure to address the situation as one that is potentially covered by the FMLA or even the ADA could result in a violation of the employee's rights under those laws. On the other hand, treating an employee as if they have a serious health condition could result in a claim that the employee was improperly regarded as disabled or, in the event of a later adverse employment action, retaliated against for having the health condition. As demonstrated by this decision, Courts and the Department of Labor tend to give employees the benefit of the doubt with respect to notice of an FMLA condition and employers must be cautious about failing to react in these situations.
• Training – Train all employees and supervisors on heat illness prevention.
• Water – Provide enough fresh water so that each worker can drink at least 1 quart per hour, and encourage workers to do so.
• Shade – Provide shaded areas upon request or when temperatures exceed 80 degree, and encourage any worker to take a cool-down rest in the shade for at least 5 minutes to protect against overheating. Workers should not wait until they feel sick to cool down.
• Planning – Develop and implement effective written emergency response procedures for complying with Cal/OSHA's Heat Illness Prevention Standard. Cal/OSHA will inspect outdoor worksites of industries such as agriculture, construction, and landscaping throughout the heat season. Cal/OSHA's Heat Illness Prevention program, the first of its kind in the nation, includes enforcement of heat regulations as well as multilingual outreach and training for California's employers and workers. Information on heat illness prevention requirements and training materials is posted on Cal/OSHA's Heat Illness Prevention web page and on the "Water. Rest. Shade. The work can't get done without them" educational campaign website. A Heat Illness Prevention e-tool is also available on Cal/OSHA's website.
In an information letter, the IRS concludes that benefits an employer provides under its company parking policy are taxable income to the employees that choose to use the benefit.
An IRS information letter is the agency's response to a taxpayer's request for information about the taxation of a specific benefit under particular circumstances. Information letters are not binding legal advice and may not be used or cited as precedent. However, they provide general guidance for other employers that provide, or are contemplating providing, similar benefits to employees under similar circumstances.
An employer implemented a policy under which it contracted and paid for secure parking for its employees in a parking facility near the office. The employer pays the parking vendor directly for the parking spots. Employees who wish to use the parking must agree, in writing, to reimburse the employer by having the monthly parking fee deducted from their pay the month before they use the parking. The employees cannot get a refund of the amounts withheld if they do not use the parking.
The cost of the parking is less than the statutory limit under Internal Revenue Code (IRC) § 132. The employees do not have the option to choose between taxable cash compensation and parking. Accordingly, the employer does not exclude the cost of the parking from the employees' taxable wages. Instead, the employer deducts the cost of the parking from the employees' after-tax wages.
The employer requested information from the IRS because employees who have elected to use the parking spots have asked whether the amounts deducted from their wages should be excluded from their taxable income and wages as a "qualified parking" benefit under the IRC.
The employer reimburses employees for their parking expenses.
Reimbursements provided in place of pay are called "compensation reduction arrangements." Under such arrangements, an employer permits employees to elect to reduce their taxable compensation in order to receive tax-free reimbursements for parking expenses they have actually incurred.
This particular employer's arrangement, under which the employer purchases parking spots from a parking vendor and then permits employees to pay the employer for the parking spots using the employees' own after-tax compensation, does not meet the definition of "qualified parking" under the IRC and regulations.
As we recently reported regarding the City of Los Angeles, both the City of San Diego and the California Department of Labor Standards Enforcement ("DLSE") have updated their "Frequently Asked Questions" ("FAQs") related to the respective local and state sick leave requirements. Below are some of the more salient points from each.
Similar to the City of Los Angeles' recent changes, the City of San Diego updated its FAQs related to the City's earned sick leave ordinance as applied to employees who are "salaried" and not "entitled to payment of minimum wage" by stating that they are not entitled to earned sick leave under the ordinance. Presumably, such employees may include those who are exempt "white collar" employees.
Regardless of coverage under the San Diego ordinance, employers still must comply with state law, which mandates provision of sick leave to nearly all employees.
The DLSE issued additional FAQs regarding the state law. Specifically, these updated FAQs address questions regarding "grandfathered" paid time off policies (or PTO plans in effect prior to January 1, 2015), rates of pay, and the impact of state law on employer attendance policies.
(2) that satisfies one of the following criteria: (a) the time off may be used under the same or more favorable conditions as specified under state law; or (b) that the plan contains more favorable conditions to employees than required under state law (e.g., provides more sick days or a more favorable accrual rate, etc.).
Please note these criteria are in addition to other accrual requirements set forth in the statute and earlier FAQs.
The FAQs confirm that the state law does not impact how employers must compensate employees under existing PTO plans for time that is taken off for purposes other than paid sick leave, e.g., vacation, etc.
The FAQs address the impact of state paid sick leave on employer attendance policies. According to the FAQs, if an employee has accrued or available sick leave, an employer's attendance policy cannot assign an "occurrence" or apply "points" for an absence covered under state law.
Moreover, if an employee does not have any accrued or available paid sick leave and if the employee has an unscheduled absence for a reason covered under state law and which otherwise violates the employer's attendance policy, state law does not prohibit the employer from giving the employee an "occurrence" for such absence. Importantly, the FAQs provide that state law, "does not 'protect' all time off taken by an employee for illness or related purposes; it 'protects' only an employee's accrued and available paid sick leave as specified in the statute.
Clients should review their policies and practices and if you should have any questions, please contact your HR Specialist at 925-556-4404.
Employers that downloaded Form I-9, Employment Eligibility Verification, between November 14 and November 17, 2016, are advised to immediately review any of the forms they used to ensure their employees' Social Security numbers (SSNs) appear correctly in Section 1. US Citizenship and Immigration Services (USCIS) has discovered a "glitch" that occurred when the revised Form I-9 was first published on November 14, 2016.
When employees completed and printed Section 1 of the affected form using a computer, numbers entered in the SSN field were automatically changed. For example, if an employee entered the number 123-45-6789 in the SSN field, the number would appear as 123-34-6789 when the form printed.
Employers using any I-9s that contain this error are advised to download and save a new Form I-9. These employers should also tell affected employees to draw a line through the transposed SSN in Section 1 of their printed forms, enter the correct SSN, and then initial and date the change. These employers should also include a written explanation with the affected I-9s about why the correction was made in case there is a future audit.
USCIS notes that it immediately repaired and reposted the form on November 17, 2016, so any forms printed out after that date would not have been affected.
The importance of correctly completing Form I-9 cannot be understated. Employers and employees are required to complete the form to both verify the identity of their employees and confirm that the employees are authorized to work in the US. Employers are prohibited from knowingly hiring or continuing to employ an unauthorized individual and can be subject to monetary and/or criminal penalties for hiring or continuing to employ an unauthorized individual.