Cal/OSHA Reminds Employers to Prevent Heat Illness during Period of High Heat

Cal/OSHA is reminding all employers with outdoor workers to review high heat advisories in effect across California. The State’s heat illness prevention standard applies to all outdoor workers, including those in agriculture, construction, landscaping and those that spend a significant amount of time working outdoors such as security guards and groundskeepers, or in non-air conditioned vehicles such as transportation and delivery drivers.

While taking steps to protect their workers from heat illness, employers must also have a plan to prevent the spread of COVID-19 at each worksite. Employers should be attentive to allow enough space and time for employees to take breaks as needed in adequate shade while also maintaining a safe distance from one another. For many employers this will require staggered breaks or increased shaded break areas, or both. Extra infection prevention measures should be in place such as disinfecting commonly touched surfaces, including the water and restroom facilities.

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Cal/OSHA is reminding all employers with outdoor workers to review high heat advisories in effect across California. The State’s heat illness prevention standard applies to all outdoor workers, including those in agriculture, construction, landscaping and those that spend a significant amount of time working outdoors such as security guards and groundskeepers, or in non-air conditioned vehicles such as transportation and delivery drivers.

While taking steps to protect their workers from heat illness, employers must also have a plan to prevent the spread of COVID-19 at each worksite. Employers should be attentive to allow enough space and time for employees to take breaks as needed in adequate shade while also maintaining a safe distance from one another. For many employers this will require staggered breaks or increased shaded break areas, or both. Extra infection prevention measures should be in place such as disinfecting commonly touched surfaces, including the water and restroom facilities.

To help prevent the spread of COVID-19, employers should provide cloth face coverings or allow workers to use their own, as coverings may help prevent the spread of the disease. Employers should also be aware that wearing face coverings can make it more difficult to breathe and harder for a worker to cool off, so additional breaks may be needed to prevent overheating. Workers should wear face coverings at all times, but they should be removed in outdoor high heat conditions to help prevent overheating as long as physical distancing can be maintained.

Supervisors and workers must be trained on the signs and symptoms of heat illness so that they know when to take steps that can prevent a coworker from getting sick. Employers must also evaluate each worksite and make sure their workers know their procedures for contacting emergency medical services, which includes directing them to the worksite if needed.

Employers with outdoor workers must take the following steps to prevent heat illness:

• Plan – Develop and implement an effective written heat illness prevention plan that includes emergency response procedures.
• Training – Train all employees and supervisors on heat illness prevention.
• Water – Provide drinking water that is fresh, pure, suitably cool and free of charge so that each worker can drink at least 1 quart per hour, and encourage workers to do so.
• Shade – Provide shade when workers request it or when temperatures exceed 80 degrees. Encourage workers to take a cool-down rest in the shade for at least five minutes when they feel the need to do so. They should not wait until they feel sick to cool down.

Cal/OSHA’s Heat Illness Prevention special emphasis program includes enforcement of heat regulations as well as multilingual outreach and training programs for California’s employers and workers. Details on heat illness prevention requirements and training materials are available online on Cal/OSHA’s Heat Illness Prevention web page and the 99calor.org informational website. A Heat Illness Prevention online tool is also available on Cal/OSHA’s website.

Members are encouraged to take advantage of the Authority’s E-Learning Training. The Authority has developed several new e-learning safety courses that comply with Cal/OSHA safety requirements, including Heat Illness – Refresher Training. Additionally, the Authority has developed a Heat Illness Prevention Plan in accordance with CCR Title 8: Section 3395. The Heat Illness Prevention Plan is available via myJPIA.

For more information, please contact your assigned Risk Manager.

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“Lift Up Lomita” Campaign Celebrates Neighbors Helping Neighbors

(Reprinted from League of California Cities, Local Works)

The City of Lomita, known to its residents as “The Friendly City,” is a community that prides itself on being a place where neighbors help neighbors. During the COVID-19 pandemic, city officials launched a campaign called “Lift Up Lomita” in hopes of amplifying and multiplying the grassroots acts of neighborliness across the community.

City officials recognized the outpouring of community support and stepped in to help facilitate and direct resources toward vulnerable community members with specific unmet needs. The city launched a campaign webpage to make it easy for residents to sign up to volunteer and for individuals in need to register. The website is also a platform for residents to share their stories of neighborly goodwill. Those stories are then shared on the city’s social media channels and newsletter.

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As the “Lift Up Lomita” campaign began, council members and city employees teamed up to donate funds, water, paper goods, and other items. They assembled approximately 200 small care packages with basic necessities and delivered them to seniors and others in need in the community.

The campaign gained traction across the community, with residents continuing to lift up each other in a variety of ways. Adopting the #LiftUpLomita hashtag, the city amplified stories about households sharing homegrown fruit, children decorating sidewalks with chalk art, and restaurants donating food to medical workers. Recognizing and publicizing these community-minded acts promotes a feeling of unity among city residents and has inspired more people to join the campaign of neighborly good deeds.

Lomita community members continue to support one another during the current stage of the pandemic as facilities begin to reopen for limited use in accordance with public health guidance. And while it is still uncertain how long communities will be impacted by the COVID-19 pandemic and its repercussions, city officials are confident the spirit of “Lift Up Lomita” will endure long after the crisis passes.

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U.S. Supreme Court’s Decision in Bostock v. Clayton County Extends Title VII Protections to Sexual Orientation and Gender Identity

By Christopher S. Milligan and Kelly A. Trainer, Burke, Williams & Sorensen, LLP

On June 15, 2020, the United States Supreme Court issued a seminal opinion for the lesbian, gay, bisexual, transgender, queer or questioning (“LGBTQ”) community, ruling that Title VII of the Civil Rights Act of 1964 (“Title VII”), protects LGBTQ workers from workplace discrimination. The decision was issued in a trio of cases, collectively referred to as Bostock v. Clayton County, 590 U.S. ___ (2020) (No. 17-1618, June 15, 2020) (“Bostock”).The Court ruled that though Congress may not have had discrimination based on sexual orientation in mind when it enacted Title VII, but Title VII’s ban on discrimination does in fact protect LGBTQ employees. (Title VII bans employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin.”)

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Factual Background

In Bostock, the plaintiff, Gerald Bostock, was an employee of Clayton County, in the Atlanta metropolitan area. He was an employee in the juvenile court system and had good performance records. In 2013, Bostock joined a gay softball league and told others about it at work. In April 2013, Clayton County conducted an audit of funds controlled by Bostock and fired him for conduct unbecoming a county employee. Georgia did not have any laws protecting LGBTQ individuals from employment discrimination. Bostock believed the County had used the issue of allegedly misspent funds as a pretext for firing him for being gay. Ultimately, the Eleventh Circuit upheld the lower court’s dismissal of his claims. In April 2019, the U.S. Supreme Court granted review to Bostock, along with Altitude Express Inc., et al. v. Zarda (“Zarda”), a Second Circuit decision, and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC (“Harris”), a Seventh Circuit decision. In Zarda, Altitude Express had fired Donald Zarda days after he mentioned being gay, while in Harris, Harris Funeral Homes had fired Aimee Stephens, who had first presented as a male, after she informed her employer that she planned to live and work as a woman.

The Decision

The Court’s 6-3 decision was written by Justice Neil Gorsuch, ruling that Title VII protections do extend to cover sexual orientation and gender identity. The decision primarily involved statutory interpretation of Title VII, rather than constitutional law. The Court focused its decision on the ordinary meaning of the term “sex” used in Title VII at the time of its enactment in 1964. The Court found the term “sex” referred to the biological distinctions between male and female.

The Court applied this definition of “sex” to Title VII’s “but for” causation standard. According to the Court, “causation is established whenever a particular outcome would not have happened ‘but for’ the purported cause.” The Court explained, this “means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.” In other words, “if changing the employee’s sex would have yielded a different choice by the employer – a statutory violation has occurred.” Applying but-for causation, the Court concluded that discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex. An employer who penalizes an employee for being homosexual or transgender violates Title VII because sex is a “but-for” cause.

Title VII provides a remedy to an individual even if the employer’s policy on the whole does not involve discrimination. “An employer who fired an individual for being homosexual…fires that person for traits or actions it would not have quested in members of a different sex. Sex plays a… undisguisable role in the decision, exactly what Title VII forbids.” Therefore, “[b]y discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.” Justice Gorsuch wrote that the decision would not affect other areas of the law outside of Title VII, for example it would not affect Title IX’s protections for access to bathrooms, locker rooms, and dress codes were not before the Court.

The Court also observed that concerns about religious beliefs were not at issue, but were addressed in Title VII’s carve-outs for religious organizations and the First Amendment’s bar on the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” The Court reserved for future cases the implications of the Religious Freedom Restoration Act of 1993. The Court noted that none of the employers were arguing that compliance with Title VII infringed with religious liberties.

Reaction

The Bostock decision is a major victory for LGBTQ rights, equivalent to the legal recognition of marriage equality. Prior to the decision, many states did not prohibit LGBTQ workplace discrimination since Title VII had not been extended to protect their rights. While the decision expressly limited its application to Title VII, it is likely that the decision will ultimately have effect on a broad range of other federal laws that prohibit sex discrimination.

Impact

The Bostock decision will have a large impact in states without a state anti-discrimination law that protects LGBTQ employees, and there will likely be an increase in lawsuits and EEOC complaints in those jurisdictions. However, even before the Bostock decision, California law had already provided significant protections for both sexual orientation and gender identity. In 1979, California became one of the first states to bar discrimination against LGBTQ employees in public employment. Currently, the California Fair Employment and Housing Act (“FEHA”) has prohibits discrimination on the basis of sex, gender, sexual orientation, gender identity, and gender expression. Most recently, in 2017, the FEHA regulations were amended to protect transgender employees. Consequently, it is unlikely that the Bostock decision will have a significant legal impact on California’s existing protections of LGBTQ employees.  However, the Supreme Court’s extension of workplace protections to the LBGTQ community serves as an important reminder to all employers of California’s broad protections against workplace discrimination, harassment, and retaliation.  Employers are encouraged to take this opportunity to evaluate existing policies, procedures, and practices for compliance with the FEHA’s legal requirements and to promote awareness and inclusivity in the workplace.

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National Lawyers Guild v. City of Hayward: No Cost For Redaction Of Bodycam Footage In Response To CPRA Request

By Denise A. Bozzano, Stephanie Gutierrez, Chad W. Harrington, and Thomas D. Jex, Burke, Williams & Sorensen, LLP

The California Supreme Court in National Lawyers Guild v. City of Hayward (S252445) held public agencies cannot recover redaction and compilation costs incurred in response to a California Public Records Act request. While the outcome of this case is disappointing to many public agencies who struggle with the costs of redacting video footage or other electronic documents, the Court does provide some examples of other areas of the Public Records Act that could provide relief.

The National Lawyers Guild’s submitted a California Public Records Act request to the City of Hayward seeking several categories of records related to the City of Hayward Police Department’s actions in 2014 relating to demonstrations that took place in the City of Berkeley after a grand jury decided not to indict policemen involved in the deaths of Eric Garner and Michael Brown. Before producing the records, the City of Hayward provided National Lawyers Guild with an invoice for $2,938.58, the cost of 40.2 hours of staff time used to compile and redact police body camera video.

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The Supreme Court acknowledged the California Public Records Act allows public agencies to recover the costs associated with producing copies of electronic records, “including the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record” (California Government Code § 6253.9, subd. (b)) when “[t]he request would require data compilation, extraction, or programming to produce the record.” (California Government Code § 6253.9(b)(2))

However, the Court’s decision turned on the statutory interpretation of the term “data extraction.” While the City of Hayward argued the staff time utilized redacting material exempt from disclosure qualifies as data extraction, the Court went with a more technical version of the term stating data extraction is “…[the] process of retrieving required or necessary data for a particular use, rather than omitting or deleting unwanted data.” After analyzing the legislative history of Government Code section 6253.9(b)(2), the Court determined that the history makes clear that the term “extraction” was intended to cover such things as “pulling demographic data for all state agency employees from a human resources database and producing the relevant data in a spreadsheet” but not time spent searching for “responsive records in an e-mail inbox or a computer’s documents folder.”

The Court concluded that public agencies may recover costs for the retrieval of responsive electronic data in order to produce a record that can be released to the public, but not the costs incurred when redacting exempt information. The Court further explained that although collection, review, and redaction of police body-worn camera footage presents a unique challenge, often requiring time-intensive and costly redaction, California Government Code section 6253.9(b)(2), “…as presently written, does not provide a basis for charging requesters for the costs of redacting government records kept in an electronic format, including digital video footage.”

The Court offered three provisions of the Public Records Act that provide solutions to ease the burden of responding to overly burdensome requests without adequate funding: 1) Government Code section 625(a) [requires agencies to disclose nonexempt portions of records only if they are “reasonably segregable” from portions exempted by law]; 2) Government Code section 6255(a) [allows agencies to withhold records if “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record” which could encompass requests that are unduly burdensome on agencies], and 3) Government Code section 6253.1(a)(3) [allows agencies to suggest ways requesters can reduce practical barriers to agency compliance with any request].

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Joe Eynon: Celebrating 15 Years of Service

Joe Eynon recently celebrated 15 years of service with the Authority. Joe joined the Authority on June 13, 2005 as senior training coordinator where he was responsible for facilitating training workshops for members. His tenure includes serving as risk manager and senior training specialist before assuming his current role as training manager overseeing all aspects of the Authority’s training program.

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Training plays an important role in supporting risk management and good governance of members. Under Joe’s leadership, advances and innovation in technology have opened many different possibilities for integrating technology into the Authority’s training program. He implemented the Authority’s first learning management system (myJPIA Training) and created enhanced training delivery to members including the innovative E-Learning curriculum.

People are the most important part of any organization, and Joe exemplifies the meaning of customer service to members and partners. His prior 20 years of experience as a senior and an adjunct professor of ministerial studies provided Joe with an ability to forge authentic relationships with members.

“Joe leads with integrity,” said California JPIA Chief Executive Officer Jon Shull. “His dedication and energy to the training program and our members have contributed to the success of the Authority and its sustainability as an industry leader.”

“I love the Authority’s atmosphere and the opportunity to work with people in public service,” Joe said. “I really appreciate what we do and how we do it—we have a lot going on, but it’s fun. I don’t even consider it work.”

Congratulations, Joe!

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