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Read the latest news from Scali Rasmussen, including legal alerts and event listings.

Beyond the blueprint

State will lift many customer-facing statewide restrictions June 15

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On June 15, the State of California will lift most of the capacity, social distancing, and masking requirements that affect customers across the state. All sectors, except for major indoor and outdoor events, can return to normal operations if they have been operating under the statewide restrictions. However, all California businesses must continue to keep in mind three factors: 1) local orders, 2) Cal/OSHA employee safety restrictions, and 3) potential legal liability.

Changes in minimum wage laws coming July 1, 2021

Review your pay plans and pay calculators

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California enacted in 2016 a plan to reach a $15.00 per hour minimum wage, with wages set to increase steadily until they reach this point for all employers in 2023. The minimum wage is currently set statewide at $13.00 for small businesses (1-25 employees) and $14.00 an hour for large businesses (26+ employees), respectively. However, on July 1, 2021, many local jurisdictions are increasing their minimum hourly wages beyond these rates.

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Congress passed the American Rescue Plan in March of 2021 to extend the paid leave tax credits available to employers with less than 500 employees through September 30, 2021. While employers are no longer required by federal law to provide the leave, if this leave is voluntarily provided (or, provided pursuant to a state or local mandate), employers can continue to obtain tax credits for the maximum amount allowed under federal law for leave taken through September 30, 2021. Please note that the amount paid to the employee may not exactly match the tax credit available if the state or local order requires paying out such leave at a different amount than the federal maximum tax credit.

COVID vaccine mandates

Not recommended at this time

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As we transition back to the “normal” times before March 2020, many employers are wondering whether they can mandate that their employees be vaccinated for COVID. The Equal Employment Opportunity Commission (“EEOC”) and the California Department of Fair Employment and Housing (“DFEH”) have released guidance, stating that subject to certain religious and medical exemptions, the answer is yes. However, we do not recommend employers implement a vaccine mandate, and instead recommend employers take a more relaxed and voluntary approach to obtaining high rates of vaccination among their employees. We have provided the following Frequently Asked Questions and answers.

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There are many reasons why employers may want or need to know whether their employees have been vaccinated against COVID-19: the safety of staff and customers, a desire to modify mask rules, or even legal mandates. As a general rule, employers may ask employees for proof that they have received a COVID vaccination, but there are several factors that should be considered if and when doing so. These include ensuring the questions are asked correctly, that privacy measures are in place, and that employee information is safeguarded.

Vaccines and COVID protocols

Restrictions are changing, but care is still needed

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The Centers for Disease Control (“CDC”) caused a stir on May 13, 2021, when it issued its “Interim Public Health Recommendations for Fully Vaccinated People.” This guidance allows fully vaccinated individuals to forgo wearing masks and some social distancing protocols in certain circumstances. It is a welcome relief for many, but came as a surprise to state and local governments and the businesses currently operating under COVID protocols.

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As a result of the frequency of its occurrence in food products, acrylamide has become a favored target for the private law firms that bring cases against companies for failing to provide Proposition 65 mandated warnings. In 2020, there were some 453 Notices of Violation involving alleged acrylamide-related violations served, many of them naming multiple violators. In the first quarter of 2021 alone, there were 109 such Notices.

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Since the inception of California’s Anti-SLAPP statute, federal courts have grappled with how to adapt the law for application in federal proceedings. Federal courts sitting in diversity apply the substantive law of the jurisdiction in which they sit, but not the procedural law. The source of the shifting jurisprudence is the reality that the substance of the Anti-SLAPP law is to a large degree the procedure it imposes that allows for courts and litigants to quickly resolve a “Strategic Lawsuit Against Public Participation” (what the acronym “SLAPP” stands for), while minimizing the burden on the moving party by imposing a discovery stay, and providing for fees for a successful movant.

Vaccinations in the workplace

Balancing risk and opportunity

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At long last, all adult Americans have access to the COVID vaccine. This raises new questions regarding employers’ ability to mandate vaccinations, what type of liability they may face with respect to unvaccinated employees contracting or spreading COVID, and what rights employees have to access vaccinations. This article examines these issues and concludes that while mandating vaccinations is likely legally defensible, other approaches may limit legal liability while also avoiding major headaches.