Legislative Update

F E D E R A L

SUPREME COURT RULES IN FAVOR OF LGBTQ EMPLOYMENT PROTECTIONS

The Supreme Court of the United States has ruled that employers may not discriminate based on sexual orientation or gender identity in employment. This decision affects all employers with 15 or more employees.

The decision was a response to three separate cases, all of which were about employment discrimination based on “sex” under Title VII of the Civil Rights Act of 1964, which applies to all employers with 15 or more employees. There has been debate for years about the definition of sex under Title VII. Originally, many assumed that it meant only that men and women could not be treated differently, but over the years the Supreme Court has interpreted the definition to include certain characteristics or expectations related to sex. Previous decisions, however, had not yet provided a definitive answer as to whether sexual orientation and gender identity were protected—we now know the answer is “yes.”

Several circuit courts of appeal had already ruled that sex included sexual orientation, gender identity, or both, and many states have their own civil rights laws to protect these characteristics in the context of employment (often at a lower employee count). Additionally, the Equal Employment Opportunity Commission (EEOC), which enforces Title VII, has for years held the position that sex includes sexual orientation and gender identity, and has sued employers for discrimination based on that interpretation.

Because of the rulings, laws, and interpretations already in play, most employers have been operating under the assumption that discrimination based on sexual orientation or gender identity is or could be found illegal. As a result, today’s rulings should not require most employers to change their behavior. The Equal Employment Opportunity policy provided by the HR Support Center has included sexual orientation and gender identity as protected for many years, so employers who are using our policy do not need to update their policy or handbooks.

C A L I F O R N I A

TOBACCO ORDINANCE: UNINCORPORATED AREA OF SAN DIEGO COUNTY

On January 28, 2020, the County of San Diego Board of Supervisors approved an ordinance (Ordinance No. 10647) to reduce the impacts of tobacco in the unincorporated area of San Diego County. Effective July 1, 2020:

The sale or distribution of flavored smoking products is prohibited. The sale or distribution of electronic smoking devices is prohibited until February 28, 2021, or an earlier date, dependent on the results of the Centers for Disease Control and Prevention’s ongoing vaping illness investigation. Smoking is prohibited in all outdoor dining areas, and within 25 feet from the perimeter of such areas. Additionally, smoking is prohibited within 40 feet from a permitted food facility that is a mobile food or temporary food facility, such as a food truck or food cart.

ASSEMBLY BILL 5 ("AB 5")

Assembly Bill 5 ("AB 5"), signed by Governor Newsom last year, takes effect for workers' compensation on July 1, 2020. Among other things, AB 5 changes the criteria used to determine whether, by law, a person who performs work for you is an employee or an independent contractor for insurance, tax, and all legal purposes.

Potential Impact

If you believe your workers are independent contractors rather than employees, and it is later determined they are employees based on the new Labor Code created by AB 5 (Labor Code section 2750.3), State Fund will include their compensation when calculating your final premium beginning July 1, 2020, as required to do so by this new law. This may result in an increase in the final cost of your policy.

SENATE BILL 1159 (“SB 1159”)

Senate Bill 1159 (SB 1159) codifies the Governor’s executive action stating if an employee before July 6th contracted COVID it would be presumed to have occurred at work. For situations after July 6th the bill narrows the Governor’s executive action to say for certain front-line health care workers such as firefighters, EMTs, paramedics, physicians and nurses in certain health facilities (general acute care hospitals, acute psychiatric hospitals, skilled nursing facilities, intermediate care facilities, hospice facilities) who tested positive the presumption would continue to be they contracted COVID at work.

For employees who are not covered by the above, the presumption would apply if there was an “outbreak” at the employer. Outbreak is defined as: 5% of the workforce tested positive for employers with 100 or more employees, or More than 5 employees test positive for employers with less than 100 employees.

ASSEMBLY BILL 685 ("AB 685")

Assembly Bill 685 (“AB 685”) requires employers to take the following actions within one business day upon notification of an employee testing positive including: Provide written notice to all employees; Provide all employees who have been exposed with information regarding all COVID-19 related benefits the employee may be entitled; Notify all employees on disinfection and safety plan the employer plans to implement per CDC guidelines

The bill also requires, if three workers test positive within 14 days, which is the Public Health definition of an outbreak, the employer must report to local public health department. I have attached a copy of the bill which provides the specifics.

CALIFORNIA MINIMUM WAGE INCREASES

On July 1, 2020, the minimum hourly wage in certain California cities increased as follows: Alameda: $15.00 Berkeley: $16.07 Emeryville: $16.84 Fremont, 25 or fewer employees: $13.50 Fremont, 26 or more employees: $15.00 Los Angeles City and unincorporated Los Angeles County, 25 or fewer employees: $14.25 Los Angeles City and unincorporated Los Angeles County, 26 or more employees: $15.00 Malibu, 25 or fewer employees: $14.25 Malibu, 26 or more employees: $15.00 Milpitas: $15.40 Novato, 1-25 employees: $13.00 Novato, 26 – 99 employees: $14.00 Novato, 100+ employees: $15.00 Pasadena, 25 or fewer employees: $14.25 Pasadena, 26 or more employees: $15.00 San Leandro: $15.00 San Francisco City and County: $16.07 Santa Monica, 25 or fewer employees: $14.25 Santa Rosa, 25 or fewer employees: $14.00

On January 1, 2021, California minimum hourly wage will go up to $13.00 for 25 or fewer employees and $14.00 for 26 or more employees.

LOCALITIES, PAID LEAVE, AND COVID‐19

The following California localities enacted leave laws related to COVID-19:

City of Los Angeles Supplemental Paid Leave (issued April 7 and updated May 19) and rules. Emeryville (city’s paid sick leave law as applied to COVID-19). Long Beach COVID-19 Paid Supplemental Sick Leave (adopted May 19, immediately effective, no expiration date but revisited every 90 days to determine if still necessary). Oakland Emergency COVID-19 Paid Sick Leave Ordinance (adopted May 12 and expires December 31, 2020, unless extended). San Jose Urgency COVID-19 Paid Sick Leave Ordinance (employers subject to the Ordinance must provide the required paid sick leave benefits starting April 8, 2020 through December 31, 2020). Of note, Los Angeles County enacted an emergency paid sick leave ordinance in April.

N E V A D A

A R I Z O N A

COVID‐19 AND REOPENING

On May 12, 2020, Arizona Governor Douglas Ducey signed an executive order (No. 2020-36) recapping the state’s response to COVID-19 along with its reopening:  On May 16, 2020, the state will institute a “Stay

Healthy, Return Smarter, Return Stronger” policy that allows businesses to gradually reopen in compliance with state and federal guidelines.

Additionally, all businesses must establish and implement policies that include the following: o Promoting healthy hygiene practices; o Intensifying cleaning, disinfection, and ventilation practices; o Monitoring for sickness; o Ensuring physical distancing; o Providing necessary protective equipment; o Allowing for and encouraging telework where feasible; o Providing plans, when possible, to return to work in phases; o Limiting group congregation to groups of no more than 10 persons when feasible and in relation to the location size.  The state’s stay-at-home order will end on May 15.  Dine-in services reopened on May 11, 2020.  Retailer, cosmetologists, and barbers reopened on

May 8, 2020.  Retailers could resume operations at a limited capacity on April 29, 2020.

FLAGSTAFF MINIMUM WAGE

On January 1, 2020, Flagstaff’s minimum hourly wage increases as follows:  $13 per hour for all individuals who worked or are expected to work 25 hours or more in any given calendar year within the Flagstaff city limits.  $10 per hour for tipped employees who regularly or customarily receive $30 or more in tips per month. minimum wage law notice where employees may easily read it.

UPDATED GUIDANCE FOR STATE PAID LEAVE

On October 4, 2019, the Nevada Labor Commissioner released an advisory opinion (A.O. 2019-02) to provide guidance on the following topics under the state’s paid leave law enacted by Senate Bill 312:  Key highlights of S.B. 312, effective January 1, 2020.  50-employee threshold.  Exemptions.  Part-time employees.  Front loading or accrual of leave, carryover, separation, and reinstatement.  Tracking accrual and taking paid leave, recordkeeping, and exemptions.  Leave use, notice requirements, and leave increments.  Calculating rate of pay for paid leave.

The state’s paid leave law is effective January 1, 2020 and requires every private employer with 50 or more employees to provide paid leave that accrues at a minimum of 0.01923 hours of paid leave for each

Best Wishes from EXCALIBUR Cigar

on NMA’s 25th Anniversary

Employers must also conspicuously post the city’s hour of work performed.