Worker Fatigue Leads to Injuries
- Research estimates that 13% of workplace injuries can be attributed to fatigue, and 43% of American workers admit they may be too tired to function safely at work.
- Employers can reduce the risk of fatigue and assist employees by rotating shift schedules or frequent night shift schedules that face high risks for fatigue.
- Employers should void assigning permanent night-shift schedules if possible, avoid long shift lengths ± no longer than 12 hours — and provide adequate time to recover between shifts.
- Employees should be given frequent breaks within shift obligations.
Missing Meal or Rest Break Acknowledgement
While it is always important to have a policy of allowing and encouraging meal and rest breaks, I thought you might want to see a form Kelly Services provides its placed employees”
“I was provided the opportunity and encouraged to take timely and complete meal breaks and rest breaks based on company policy, however I chose not to take such breaks during the last pay period”
California Supreme Court Accepts Invitation to Weigh In on Employment Arbitration Agreements & PAGA
On June 15, 2022, the U.S. Supreme Court ruled in Viking River Cruises, Inc. v. Moriana that bilateral arbitration agreements governed by the Federal Arbitration Act (FAA) may require arbitration of California Private Attorneys General Act (PAGA) claims on an individual basis only.
However, Justice Sotomayor’s concurring opinion in Viking River Cruises also seemingly included an invitation for California’s legislature and courts to clarify standing issues related to PAGA actions when an employee is required to arbitrate their individual PAGA claims in accordance with an enforceable arbitration agreement.
The California Supreme Court has accepted this invitation and agreed to review several cases on the issue, including Wing v. Chico Healthcare & Wellness Centre (Wing) and Sanchez v. MC Painting (Sanchez). The specific question presented in these cases is: whether an aggrieved employee who has been compelled to arbitrate claims under PAGA that are premised on Labor Code violations actually sustained by the aggrieved employee maintains statutory standing to pursue PAGA claims arising out of events involving other employees in court or in any other forum the parties agree is suitable.
In Wing, the employee agreed to an alternative dispute resolution policy as a condition of her employment. The policy included a waiver of class or representative actions. The employee then filed a complaint that included PAGA claims. The employer asked for the PAGA claims to be stayed while the individual claims proceeded to arbitration, but the employee refused. The trial court subsequently denied the employer’s motion to compel arbitration of the PAGA claims, and the California Court of Appeal upheld the denial based on California Supreme Court precedent in Iskanian v. CLS Transportation Los Angeles LLC, which held that an employee’s right to pursue a representative PAGA action cannot be waived, and this conclusion was not preempted or foreclosed by the FAA.
In Sanchez, the employee signed an arbitration agreement at the time of hire, which included language that all issues of validity, enforcement, and interpretation of the agreement would be governed by the FAA and that the employee waived the right to bring representative actions. As in Wing, the employer appealed the trial court’s denial of a petition to compel arbitration of a PAGA claim based on the California Supreme Court’s reasoning in Iskanain.
The California Supreme Court has clearly signaled its intention to clarify Iskanian’s status in light of the U.S. Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana. In the meantime, we also await the high court’s decision regarding a potential rehearing in Viking River Cruises.
CDC Loosens COVID-19 Guidance, Emphasizes Individual Responsibility
August 12, 2022
In an effort to streamline its guidance and reflect the current state of the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) has issued updated guidance that focuses on individual responsibility and is designed to help the public better understand how to protect themselves and others if they are sick or have been exposed.
In addition, the CDC stated that it intends to issue more specific guidance for settings such as healthcare, congregate living, and travel.
The latest guidance, released on August 11, 2022, includes the following:
- Vaccination. The CDC continues to promote the importance of being up to date with vaccination to protect people against serious illness, hospitalization, and death. However, while the CDC continues to recommend vaccination, its guidance no longer differentiates between vaccinated and unvaccinated individuals.
- Quarantine. The CDC no longer recommends quarantining following COVID-19 exposure, regardless of vaccination status. Instead, the CDC recommends anyone exposed to COVID-19 to wear a high-quality mask for 10 days and get tested on day 6. Previously, the CDC recommended a 5-day quarantine for anyone who was not up to date with vaccinations.
- Isolation. The CDC continues to recommend that, regardless of vaccination status, individuals should isolate from others if they are sick and suspect that they have COVID-19 or have tested positive for COVID-19.
- The CDC recommends that individuals with COVID-19 stay home for at least 5 days. After 5 days, if the individual is fever-free for 24 hours without the use of medication, and their symptoms are improving (or they never had symptoms) they can end isolation.
- However, the CDC now recommends that individuals who had moderate illness (experienced shortness of breath or had difficulty breathing) or severe illness (were hospitalized) due to COVID-19 or have a weakened immune system isolate through at least day 10. It recommends that those who had severe illness or have a weakened immune system consult with their healthcare provider before ending isolation.
- The CDC also recommends that an individual who has ended isolation avoid being around anyone who is at high risk for a serious case of COVID-19 until at least day 11.
- Finally, the CDC recommends that if an individual’s COVID-19 symptoms worsen, they should restart their isolation at day 0.
- Testing. The CDC no longer recommends screening testing of asymptomatic people without known exposures in most community settings.
- Physical Distance. The CDC emphasizes that physical distance is just one component of how individuals can protect themselves and others. It recommends considering the risk in a particular setting, including local COVID-19 Community Levels and the important role of ventilation, when assessing the need to maintain physical distance.
The CDC’s latest focus on individual responsibility, removal of distinctions between vaccinated and unvaccinated individuals, removal of quarantine recommendations, and discussion of mask wearing as an individual responsibility should be helpful to employers considering relaxing their COVID-19 workplace requirements.