Senate Bill 93, which became effective immediately on April 16, 2021, requires certain hospitality businesses to first offer open positions to workers who have been laid off due to the COVID-19 pandemic prior to hiring any other employees to fill previously laid-off employees’ positions.  Additionally, OSHA recently issued guidance advising employers requiring vaccinations to keep records of adverse reactions.

Laying Off Employees Due to COVID-19?  You might have to reoffer open positions to them.

Senate Bill 93, which became effective on April 16, 2021, requires certain hospitality businesses to first offer positions to workers who have been laid off due to the COVID-19 pandemic prior to hiring any other employees to fill their positions. Employers must provide eligible employees at least five business days to respond to a job offer and must award the job depending on seniority if more than one employee is entitled to the position. 

Which hospitality businesses are affected?

1. Hotels with 50 or more guest rooms. This includes any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services at the building;
2. Event centers of more than 50,000 square feet or 1,000 seats that are used for public performances, sporting events, business meetings, or similar events, including concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers;
3. Building services providing janitorial, building maintenance, or security;
4. Private, membership-based business or nonprofit organizations that operate a building or complex of buildings containing at least 50 guest rooms or suites of rooms that are offered as overnight lodging to members;
5. Airport hospitality operations including businesses that prepare, deliver, inspect, or provide any other service in connection with the preparation of food or beverages for aircraft crew or passengers at an airport, or that provide food and beverages, retail, or other consumer goods or services to the public at an airport. This excludes carriers certified by the Federal Aviation Administration (FAA);
6. Airport service providers that perform, under contract with a passenger air carrier, airport facility management, or airport authority, functions on the property of the airport that are directly related to the air transportation of persons, property, or mail.

Which employees are considered “laid off?”

A “laid-off employee” is any employee who was employed by the employer for 6 months or more in the 12 months preceding January 1, 2020, and whose most recent separation from was due to a reason related to the COVID-19 pandemic, including a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, non-disciplinary reason due to the COVID-19 pandemic.

How is Notice of the Job Offer Conveyed?

Within five business days of a new position becoming available, an employer must offer its laid-off employees in writing, either by hand or to their last known physical address, and by email and text message if that contact information is available, all job positions that become available for which the laid-off employees are qualified. A laid-off employee is qualified for a position if the employee held the same or similar position at the time of the employee’s most recent layoff with the employer.

Employees have five business days to respond. In the event multiple employees respond to the same position, the employer must offer the position to the employee with the most seniority.  If an employer declines to reemploy a laid-off employee because they aren’t qualified, it must provide the laid-off employee a written notice within 30 days and include a list of all employees hired for the position, with their length of service with the employer, along with the reasons why the employer did not rehire the employee.

What Records Must the Employer Maintain?

For at least three years, measured from the date of the written notice regarding the layoff, for each laid-off employee, the new law requires an employer to maintain the (1) employee’s full legal name, (2) job classification at the time of separation from employment, (3) date of hire, (4) last known address of residence, (5) last known email address, (6) last known telephone number; and a (7) copy of the written notices regarding the layoff provided to the employee and all records of communications between the employer and the employee concerning offers of employment made to the employee pursuant to this section.

What Happens If I Don’t Comply?

Employee may file a complaint with the DLSE seeking to be hired or reinstated in their former position, or unpaid wages for each day the violation continues.  Additionally, employers will be subject to a civil penalty of one hundred dollars ($100) per employee and an additional five hundred dollars ($500), per employee, for each day the violation continues until cured.

Mandatory Vaccination Record Keeping

In addition to the other requirements of a mandatory vaccination policy, which we have discussed in our prior alert, employers implementing mandatory vaccination polices must now keep records of adverse reactions to the vaccine.  On April 20, 2021, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued guidance regarding this obligation.  The guidance clarifies that if an employer adopts a mandatory vaccination policy, an adverse reaction to the COVID-19 vaccine is recordable on an employer’s OSHA 300 log if the reaction is: (1) work-related; (2) a new case; and (3) meets one or more of the general recording criteria set forth in 29 C.F.R. 1904.7.

If an employer requires employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related.  Therefore, the adverse reaction is recordable in the OSHA 300 log if it (i) led to the employee missing more than one day of work; (ii) required medical treatment beyond first aid; or (iii) resulted in restricted work or transfer to another job. 

Employers that merely recommend the vaccine, but do not require it, do not need to record adverse reactions.  However, to gain the benefit not reporting adverse reactions to the COVID-19 vaccine, the vaccine at issue must be truly voluntary. For example, the guidance explains that an employee’s choice to accept or reject the vaccine cannot have any negative impact on the employee, including any negative impact on their performance rating or professional advancement.  According to the guidance, “[i]f employees are not free to choose whether or not to receive the vaccine without fearing adverse action, then the vaccine is not merely ‘recommended.’" 

Stradling Has Resources To Help You Stay Compliant

To assist California employers in complying the various COVID-19 requirements in California, Stradling has created COVID-19 protocols which incorporate all the new requirements and clarifications of the ETS and help businesses comply with federal, state, and county requirements. We encourage you to reach out if you are in the process of reopening or you have been conducting business and want to make sure you are in compliance with the applicable industry guidelines.